Professional ethics and NDAs
An NDA aims to control risks
Respecting client confidentiality is inherent to the exercise of our intellectual professions and a key feature of professional codes of conduct.
Some clients feel the need to take it further and to have us sign non-disclosure agreements before discussing a potential project with us. The need is often legitimate. As long as the phrasing of such a contract does not impede our being able to provide our services properly, signing an NDA should not raise any difficulty.
The caveat raised echoes a concern expressed on the SFT’s member discussion list on NDAs that demand that the translator destroy source and target documents, reference materials, translation memories or client-specific glossaries after project completion. Such requests should be discussed with the client as they may not be in the long-term interest of the parties to the agreement. But that’s another topic.
Many NDAs set a time limitation. Others don’t. Others still make clear what will remain covered by the contract and what will fall within the public domain after a set period of time. Read the small print. You are bound by what you’ve signed, and that may well involve your own work.
Cinching future projects
Most professionals who’ve been practicing their craft for a while should have enough project examples to show prospects and demonstrate their expertise.
Moreover, in-depth and lengthy dialogs about a potential project make it rather obvious whether the independent professional “knows their stuff”. Providing detailed proposals, content outlines for deliverables and identifying key issues to be decided jointly also show mastery of the subject and capacity to deliver. The prospect can also contact client references, which I happily provide upon request.
Sometimes, though, the prospect needs even more proof to be able to win over those within the organization who may be hesitating signing off on the needed budget for a strategic project.
And so, to cinch the deal internally and with you, he/she asks you to give them an example of the same type of deliverable you’ve designed for another client. Despite already having a detailed outline. Despite that such deliverables are not one-size-fits-all, but customized to suit a company’s goals, context, needs and budget.
And here, of course, I’m not talking about the type of project one does frequently, where we can dive into our bag of project references and pull-out a nearly identical one. I’m not talking about a marketing brochure, a company magazine, a white paper, a Web site or an annual report you’ll have copywritten or translated and that is in the public domain. But a strategic deliverable designed and produced specifically for internal corporate use. That is covered by an NDA you’d signed with that client.
Admittedly, this is the first time I’ve ever faced this conundrum. And I’m not a rookie. There have been instances where I would have liked to show a project example that was covered by an NDA, but exchanges with the prospect and other work samples sufficed for them to finalize their choice. Never have I provided as much information pro bono upstream to end up with this type of catch-22.
Last ditch effort
I spent hours on the Internet striving to find a comparable example in the public domain to show my prospect what my proposed deliverable might look like. I wasn’t surprised to come up high and dry, finding a few links that were just distant echoes of what my detailed memo proposed. Companies do not publish these types of references for good reason.
Your word is worth more than a project
I want to win this project and have invested a great deal of time and energy upstream to do so. I’d signed an NDA with this prospect early on. And I know the company holds me to it even at this stage of the game (thus the lack of specifics about the project).
Will they respect my refusal to hand over a deliverable that is covered by an NDA with another client as proof of the professional ethics they expect of me? Or will I lose this project in the last stage of the long discussion process because I refuse to violate another client’s confidence?
Time will tell.
It was a tough email to write. But I did the right thing, even if it may cost me.
You are as good as the last project you’ve delivered.
And your word is worth more than any project.