Should a lawyer sign an NDA for a job interview?
August 7, 2012 7:09 PM Subscribe
I'm a lawyer at a large firm. I represent a lot of tech startups and as a general practice, lawyers at my firm don't sign NDAs to avoid potential problems and conflicts of interest. I'm interviewing for an in-house counsel position and they are insisting I sign an NDA. Any advice?
I can imagine a scenario where they sue one of my clients and a litigator digs up this NDA, resulting in trouble. I've already explained my concerns about professional responsibility and my obligations to my existing clients and asked that we skip the NDA, and they have replied that all interviewees must sign. Any advice? Am I overthinking this, and it's really not a big deal? Should I just tell them I can't do the interview?
I can imagine a scenario where they sue one of my clients and a litigator digs up this NDA, resulting in trouble. I've already explained my concerns about professional responsibility and my obligations to my existing clients and asked that we skip the NDA, and they have replied that all interviewees must sign. Any advice? Am I overthinking this, and it's really not a big deal? Should I just tell them I can't do the interview?
I'm assuming that your current employer doesn't know that you're interviewing for this new position, and so they wouldn't know that you're signing the NDA. That seems like a huge problem. I am not a lawyer, but I can't see how you can do that without disclosing it to the person at your firm you manages the firms conflicts of interest.
posted by alms at 7:18 PM on August 7, 2012 [1 favorite]
posted by alms at 7:18 PM on August 7, 2012 [1 favorite]
There are arguments on both sides - they don't really need to disclose anything that confidential to you in the context of an employment interview. Lawyers typically don't sign NDAs because they are already under pretty strict duties of confidentiality to their clients. You could point out to the firm you are interviewing with that you have professional duties of confidentiality and they would technically be a potential client? That might give them some comfort, but if they're smart they will just say you shouldn't have a problem signing the NDA then.
Otherwise, amend the NDA to make sure that it only relates to information shared for the purposes of determining whether to make / accept an offer of employment, include a permitted disclosure if you are required to disclose the information by law (usually included anyway), advise them (gratis) not to share proprietary information at the interview stage, and sign the thing, especially if it's a job you really want.
posted by yogalemon at 7:29 PM on August 7, 2012
Otherwise, amend the NDA to make sure that it only relates to information shared for the purposes of determining whether to make / accept an offer of employment, include a permitted disclosure if you are required to disclose the information by law (usually included anyway), advise them (gratis) not to share proprietary information at the interview stage, and sign the thing, especially if it's a job you really want.
posted by yogalemon at 7:29 PM on August 7, 2012
My company makes interviewing lawyer candidates sign NDAs juuuuust in case an interviewer forgets that an upcoming project is confidential and mentions it in the course of the interview, or if the candidate sees or overhears something in the hall... it shouldn't govern anything other than material discussed in the interview, which you shouldn't ever have reason to discuss with your clients.
posted by fingersandtoes at 8:27 PM on August 7, 2012
posted by fingersandtoes at 8:27 PM on August 7, 2012
Ask to see it first. It should apply only to things that come up in the interview. Consider that they may want to ask you about your experience in a particular area, and it can be tricky to ask without risking an inadvertent revelation about future plans.
I've signed them when interviewing in-house, and the terms have been narrowly tailored to the interview. But I wasn't coming out of a firm, so I can't speak to that.
posted by ambrosia at 9:14 PM on August 7, 2012
I've signed them when interviewing in-house, and the terms have been narrowly tailored to the interview. But I wasn't coming out of a firm, so I can't speak to that.
posted by ambrosia at 9:14 PM on August 7, 2012
The advice above about not getting advice off the internets is entirely right. We can't give advice on whether an NDA will/will not cause you issues.
That said, as a non-lawyer thinking here, could you adopt a different tactic? Explain your position to your interviewers and ask if there is a format for the interview that did not involve the exchange of confidential information, explaining why an NDA was problematic for you (namely that it creates insurmountable and unknowable professional difficulties in the event of an unsuccessful candidacy).
posted by MuffinMan at 1:25 AM on August 8, 2012
That said, as a non-lawyer thinking here, could you adopt a different tactic? Explain your position to your interviewers and ask if there is a format for the interview that did not involve the exchange of confidential information, explaining why an NDA was problematic for you (namely that it creates insurmountable and unknowable professional difficulties in the event of an unsuccessful candidacy).
posted by MuffinMan at 1:25 AM on August 8, 2012
Some Law Societies run free ethics advice services (involving specialist ethics lawyers) for exactly this kind of problem. Check if there is one of these in your jurisdiction.
posted by A Thousand Baited Hooks at 2:11 AM on August 8, 2012 [1 favorite]
posted by A Thousand Baited Hooks at 2:11 AM on August 8, 2012 [1 favorite]
I'm with TWF. You should know better than most the value of competent legal advice. On the other hand, if you are looking for thoughts, the Raymond piece is helpful.
posted by megatherium at 4:09 AM on August 8, 2012
posted by megatherium at 4:09 AM on August 8, 2012
Kind of depends on what's in the NDA, doesn't it? And none of us can even begin to guess at the potential conflicts picture, should that be an issue, without knowing more about your current and prospective firm (which you should not post here, obviously). There's also the potential that an overly expansive NDA could be viewed as a covenant restricting the ability to practice law...clearly, the scenario to be most concerned with here is signing the NDA, then not getting/taking the position. (Slightly behind signing the NDA, learning privileged information, and then winding up on the other side of a conflict, which vaguely resembles certain hypos we discussed in prof resp last semester).
Talk to someone at the Bar, someone who handles Bar matters, or at least a mentor somewhere uninvolved with experience hiring and firing attorneys.
posted by snuffleupagus at 4:24 AM on August 8, 2012
Talk to someone at the Bar, someone who handles Bar matters, or at least a mentor somewhere uninvolved with experience hiring and firing attorneys.
posted by snuffleupagus at 4:24 AM on August 8, 2012
(Although it would likely have to fit the prohibition of MR5.6(a) -- or local equivalent -- to be objectionable as a restrictive covenant, which seems a stretch based on the comments as this is not "a lawyer leaving a firm," but rather a lawyer considering joining one.)
posted by snuffleupagus at 4:36 AM on August 8, 2012
posted by snuffleupagus at 4:36 AM on August 8, 2012
(Not your lawyer and all that)
If it looks like a "standard" NDA, it will be limited to confidential information that you learn within the confines of the interview and the perspective employment process, and will except information that is in the public domain, that you learn from unencumbered 3d party sources, etc. So unless the firm you are interviewing with is REALLY loose with information during the interview, that's likely to be a small universe of material.
Perhaps there is some tiny chance that (a) they'll let you in on a big secret before deciding to hire you, (b) you won't be offered or won't accept employment there, (c) one of your firm's clients will have a litigation matter that surrounds that very information, and (d) you will be assigned to work on the case. But that's pretty miniscule.
An NDA that you sign for yourself will not bind your large firm in any event, so worst case for you/them would be that you have to tell them you were looking for work and you can't work on a file adverse to the company you are now interviewing with.
If I were in your shoes, I'd review the NDA to make sure it's not crazy but then I'd sign away. Good luck.
posted by AgentRocket at 6:53 AM on August 8, 2012
If it looks like a "standard" NDA, it will be limited to confidential information that you learn within the confines of the interview and the perspective employment process, and will except information that is in the public domain, that you learn from unencumbered 3d party sources, etc. So unless the firm you are interviewing with is REALLY loose with information during the interview, that's likely to be a small universe of material.
Perhaps there is some tiny chance that (a) they'll let you in on a big secret before deciding to hire you, (b) you won't be offered or won't accept employment there, (c) one of your firm's clients will have a litigation matter that surrounds that very information, and (d) you will be assigned to work on the case. But that's pretty miniscule.
An NDA that you sign for yourself will not bind your large firm in any event, so worst case for you/them would be that you have to tell them you were looking for work and you can't work on a file adverse to the company you are now interviewing with.
If I were in your shoes, I'd review the NDA to make sure it's not crazy but then I'd sign away. Good luck.
posted by AgentRocket at 6:53 AM on August 8, 2012
Former BigLaw partner here, I did work on several conflicts-related projects as an associate. And as a partner I had numerous headaches from conflicts issues. This should also go without saying, but relying on what pseudonymous people tell you on the Internet (even people who claim to be former Biglaw partners) is foolhardy.
Actual substantive analysis depends on a bunch of factors, including but not limited to:
1. Is the company a current or former client of the firm?
2. Is the firm adverse to the company in any matter? Or about to become adverse to the firm?
3. Do you practice in a jurisdiction in which "ethical walls" are considered to be effective and ethically permissible?
4. How legally sophisticated is the company you're interviewing with? Does it have an existing large legal department? Are they familiar with conflicts issues involved with ginormous law firms? Is your lack of experience -- or their lack of experience -- in this field likely to be a factor in their decision to hire you?
5. What is the litigation portfolio of the company you're interviewing with? Patent trolls or never-been-sued? This matters even if you are not a litigator.
For any scenario other than "my firm does a lot of work for this client already and continues to do so", you should have run a conflict check before you even began talking to the potential employer.
AgentRocket's response to you above is the reason I came on to write something here. The worst-case scenario, candidly, is that the company's interview of you is part of some dirty litigation tactic meant to disqualify their opponent's preferred law firm from big-stakes litigation. You sign the NDA and in the course of your interview they intentionally give you confidential information about their planned litigation strategy, and, notwithstanding the NDA, that knowledge gets imputed to your partners. Congratulations, you've just disqualified your firm from a lawsuit which would have generated millions of dollars in fees. I'm sure the partners will understand.
Is that worst-case scenario likely? Maybe not. Does it even exist outside of malpractice carrier nightmares or MPRE hypotheticals? Eh, maybe not. But is it even possible? Yes, in some jurisdictions.
Contemplate ABA Model Rule 1.7(b): "A lawyer shall not represent a client if the representation of that client may be materially limited by the lawyer's responsibilities to another client or a third person..." And its interaction with "imputed disqualification", see Model Rule 1.10.
Disclaimer: It's been 4 years since I've read an ALAS bulletin and this response is totally uniformed by any case law search. You'd be crazy to even think about considering this post to form an attorney-client relationship.
posted by QuantumMeruit at 8:34 AM on August 8, 2012 [4 favorites]
Actual substantive analysis depends on a bunch of factors, including but not limited to:
1. Is the company a current or former client of the firm?
2. Is the firm adverse to the company in any matter? Or about to become adverse to the firm?
3. Do you practice in a jurisdiction in which "ethical walls" are considered to be effective and ethically permissible?
4. How legally sophisticated is the company you're interviewing with? Does it have an existing large legal department? Are they familiar with conflicts issues involved with ginormous law firms? Is your lack of experience -- or their lack of experience -- in this field likely to be a factor in their decision to hire you?
5. What is the litigation portfolio of the company you're interviewing with? Patent trolls or never-been-sued? This matters even if you are not a litigator.
For any scenario other than "my firm does a lot of work for this client already and continues to do so", you should have run a conflict check before you even began talking to the potential employer.
AgentRocket's response to you above is the reason I came on to write something here. The worst-case scenario, candidly, is that the company's interview of you is part of some dirty litigation tactic meant to disqualify their opponent's preferred law firm from big-stakes litigation. You sign the NDA and in the course of your interview they intentionally give you confidential information about their planned litigation strategy, and, notwithstanding the NDA, that knowledge gets imputed to your partners. Congratulations, you've just disqualified your firm from a lawsuit which would have generated millions of dollars in fees. I'm sure the partners will understand.
Is that worst-case scenario likely? Maybe not. Does it even exist outside of malpractice carrier nightmares or MPRE hypotheticals? Eh, maybe not. But is it even possible? Yes, in some jurisdictions.
Contemplate ABA Model Rule 1.7(b): "A lawyer shall not represent a client if the representation of that client may be materially limited by the lawyer's responsibilities to another client or a third person..." And its interaction with "imputed disqualification", see Model Rule 1.10.
Disclaimer: It's been 4 years since I've read an ALAS bulletin and this response is totally uniformed by any case law search. You'd be crazy to even think about considering this post to form an attorney-client relationship.
posted by QuantumMeruit at 8:34 AM on August 8, 2012 [4 favorites]
Mod note: From the OP:
Thanks, all. Your comments provided some useful perspective and confirmed that I should go with my instinct to take this seriously, rather than just signing and not worrying about it.posted by jessamyn (staff) at 12:01 PM on August 8, 2012 [4 favorites]
After reading this thread and consulting with a few people IRL, I decided to email the company and reiterate that I was not comfortable signing a pre-interview NDA and would not continue with the interview process unless they could waive the requirement. I laid out my concerns in some detail, including an example of why they would not want to hire a lawyer who had signed an NDA with a competitor.
They wrote back basically saying I was crazy, nobody, lawyer or otherwise, had ever batted an eyelash at signing their NDA before, and good luck. So, it was good for my sanity to have this thread of people acknowledging that this could be a problem. I may have been excessively cautious here, but better safe than sorry. (The lawyer credo!)
I hereby acknowledge that None of You Are My Lawyer and That Was Not Legal Advice. Go in peace.
This thread is closed to new comments.
posted by feckless at 7:14 PM on August 7, 2012