Wednesday, March 11, 2015

Saul Goodman on the Law Part One: Non Disclosure Agreements

If you read my last blog you might think that I watch entirely too much television.  I don’t believe that is the case but I will admit that my wife and I have several must see shows and my latest obsession  is Better Call Saul.  For those who are unfamiliar with the show, it provides the backstory of Breaking Bad’s lawyer/fixer Saul Goodman.

            While our protagonist’s actions are over the top, I have to say that as a sole practitioner many things about the show ring true.  However, last week when the prospective client with the creepy talking toilet asked Saul to sign a Non-Disclosure Agreement and he readily agreed, I think that the writers missed the mark.

            I have some concerns about the efficacy of non-disclosure agreements in general.  Admittedly they are not as prevalent in my kind of intellectual property law as they might be in Silicon Valley.  However, there are a number of issues inherent in these types of agreements. Are they enforceable?  What are the damages?  Nonetheless, a lawyer is the last person a client would need to sign a non-disclosure agreement.  Why?  Because the requirement that we keep our mouth shut is part of our  rules of Professional Conduct.

            Rule 1.8 of the aforesaid Tennessee rules states that except in limited circumstances “a lawyer shall not reveal information relating to the representation of a client”.  This applies to prospective clients as well.  Rule 1.18 states “even when no client-lawyer relationship ensues, a lawyer who has had discussions with a prospective client shall not use or reveal information learned in the consultation…”.

            So if the inventor of the creepy talking toilet was concerned about protecting his idea, he would be better served under the rules of Professional Conduct (violation of which can lead to punishments ranging from admonishment to suspension to disbarment) than the often time vague Non-Disclosure Agreement.  Contrary to most stereotypes, lawyers take these rules and obligations very seriously, perhaps even Saul Goodman.

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