Non-Disclosure Agreements and Confidentiality Clauses
Confidentiality Clauses and the Right to Legal Counsel: The Boundaries That Non-Disclosure Agreements Cannot Cross
In contemporary commercial practice, non-disclosure agreements have emerged as ubiquitous instruments for safeguarding proprietary information. Their prevalence, however, engenders a troubling temptation: the weaponization of confidentiality provisions not as shields protecting legitimate interests, but as swords severing the opposing party’s access to professional legal assistance.
The question thus arises whether such tactical deployment proves legally efficacious. The answer, examined through the lens of constitutional guarantees, statutory frameworks, and comparative jurisprudence, is decidedly negative. Moreover, attempts to instrumentalize confidentiality obligations in this manner may ultimately redound to the detriment of the party so endeavoring.
The Anatomy of Standard Confidentiality Provisions
The archetypal NDA provision exhibits a bipartite structure:
- The General Prohibition — the parties undertake not to disclose information to third parties absent prior written consent.
- The Statutory Exception — the prohibition does not extend to disclosures required by law or demanded by governmental authorities.
This architectural choice is far from fortuitous. It reflects the fundamental principle of civil law that party autonomy terminates where mandatory norms commence. No contractual arrangement may derogate from provisions that the legislature has deemed superordinate to private ordering.
Constitutional Foundations of the Right to Legal Assistance
The right to obtain legal counsel transcends mere privilege — it constitutes a constitutional guarantee. Article 42(2) of the Polish Constitution enshrines the right to defense at all stages of proceedings, while Article 45(1) guarantees the right of access to courts, encompassing the right to fair adjudication of one’s cause.
These guarantees would prove illusory were a contracting party precluded from presenting to counsel the documentation necessary for proper assessment of her legal position. The Constitution occupies a superior position in the hierarchy of legal sources relative to agreements between private parties — a truism that nonetheless proves remarkably easy to overlook amid the exigencies of commercial negotiations.
As the Constitutional Tribunal has aptly observed, the right of access to courts encompasses not merely formal access to proceedings, but the genuine and effective capacity to avail oneself of professional legal representation. Absent the ability to fully apprise one’s attorney of the relevant circumstances, this guarantee remains a dead letter.
Attorney-Client Privilege: Protection More Robust Than Any NDA
Paradoxically, the transmission of information to a legal advisor or attorney-at-law affords that information protection more robust than any contractual NDA could provide. The statutory duty of professional secrecy binding upon attorneys exhibits characteristics that no civil law agreement can replicate:
Absolute Character — professional secrecy operates irrespective of the parties’ volition. In the case of advocates and legal advisors, this duty cannot be waived even by the client herself insofar as disclosure might prove prejudicial to her interests. Pursuant to Article 3 of the Legal Advisors Act and Article 6 of the Bar Act, the obligation to maintain confidentiality possesses an absolute character.
Temporal Perpetuity — the duty of confidentiality continues indefinitely, persisting even after the termination of the attorney-client relationship.
Multi-Tiered Sanctions — breach of professional secrecy triggers disciplinary liability (potentially including disbarment), criminal liability under Article 266 of the Penal Code, and civil liability for damages.
Institutional Safeguards — professional secrecy enjoys the protection of bar associations, which actively resist attempts at its circumvention, including those emanating from state authorities.
A party demanding that her counterparty refrain from consulting legal counsel effectively demands the substitution of stronger protection (statutory) with weaker protection (contractual). Such a demand proves irrational from the perspective of information protection, suggesting that the true objective is not confidentiality but rather the deprivation of the opposing party’s capacity to mount a defense.
Purposive Interpretation of the “Required by Law” Exception
Critical significance attaches to the interpretation of the standard exception from confidentiality obligations. Do “cases required by law” encompass solely situations where a specific provision mandates disclosure (court summons, prosecutorial demands), or do they extend to circumstances where the law requires the possibility of exercising certain rights?
Both doctrine and jurisprudence — Polish and foreign alike — favor a purposive interpretation. The phrase “required by law” comprehends not merely mandatory directives but also entitlements whose realization necessitates disclosure. The right to defense and legal assistance falls squarely within this category.
Were one to adopt a restrictive interpretation, a confidentiality clause would:
- paralyze the capacity to avail oneself of constitutionally guaranteed legal assistance,
- violate the principle of proportionality in contract law,
- potentially be deemed inconsistent with the nature of the obligational relationship within the meaning of Article 353¹ of the Civil Code.
It bears emphasis that the mere disclosure of information to an attorney for purposes of obtaining legal advice does not constitute breach of an NDA. As practitioners have observed: “Transmitting information to one’s counsel for purposes of obtaining advice does not violate an NDA. Confidentiality agreements restrict the capacity to disseminate information publicly or to persons lacking entitlement to receive it. Because the attorney is bound by professional privilege, in the legal sense no ‘disclosure’ occurs.”
Comparative Jurisprudence: Ethics Opinions from Other Jurisdictions
The problematic of employing confidentiality clauses to restrict access to legal assistance has occasioned numerous ethics opinions from American bar associations. Their conclusions prove unequivocal and constitute valuable comparative material.
D.C. Bar Ethics Opinion 335 (2006) held that conditioning settlement upon counsel’s undertaking to maintain the confidentiality of public information or to refrain from utilizing case experience constitutes unethical conduct. The Committee stated plainly: “The only reason to make confidentiality a provision of the settlement agreement is to give the opposing party a mechanism to enforce confidentiality. We believe such opponent-driven secrecy clauses are restrictions on the lawyer’s right to practice in violation of Rule 5.6(b).”
New York State Bar Association Opinion 730 (2000) concluded that settlements may not be conditioned upon provisions obligating counsel to refrain from representing future clients in matters where they might utilize information not protected as a professional confidence but nonetheless encompassed by settlement terms. The Committee emphasized: “A settlement proposal that calls on the lawyer to agree to keep confidential, for the opposing party’s benefit, information that the lawyer ordinarily has no duty to protect, creates a conflict between the present client’s interests and those of the lawyer and future clients.”
North Carolina State Bar RPC 179 explicitly prohibited attorneys from entering into settlements containing provisions precluding representation of other claimants against the same opposing party. The Opinion states: “Although public policy favors settlement, the policy that favors full access to legal assistance should prevail.”
North Carolina 2023 Formal Ethics Opinion 2 — the most recent pronouncement on this subject — addressed confidentiality clauses purporting to render publicly available information confidential (such as court decisions and case facts) and restricting attorneys from utilizing such information. The Opinion held that such provisions violate Rule 5.6(b) because their “practical effect is to restrict the lawyer from undertaking future representations.”
Particularly instructive is Hu-Friedy Mfg. Co., Inc. v. General Electric Co. (1999 U.S. Dist. LEXIS 11213, N.D. Ill. 1999), extensively analyzed in legal literature. The facts were as follows: the defendant General Electric moved to enforce a protective order issued in a related, earlier proceeding. The same counsel represented the plaintiff in both actions. The protective order from the first proceeding provided that “all confidential materials shall be used and disclosed solely for purposes of the preparation and trial of this case and shall not be used or disclosed for any other purpose.”
Notwithstanding the categorical language of this provision, the United States District Court for the Northern District of Illinois held that plaintiff’s counsel could not be precluded from seeking through discovery and utilizing in the subsequent action the same documents deemed confidential in the prior proceeding. The court reasoned that the record contained no evidence that the allegations in the subsequent case were premised upon confidential information previously obtained. Moreover, the defendant conceded that the discovery requests were broadly framed and that any reasonably competent attorney would have sought the same categories of documents.
The critical passage from the court’s reasoning provides: “GE’s argument turns any protective order barring future use of confidential information that is independently relevant and discoverable in a subsequent action into a restriction on an attorney’s right to practice law.”
This decision establishes a significant principle: confidentiality provisions — even those sanctioned by judicial order — cannot preclude counsel from accessing information independently obtainable in subsequent proceedings. Confidentiality protection cannot serve as a shield against standard procedural measures that any competent attorney would undertake irrespective of prior familiarity with the matter.
The Ratio Legis of Confidentiality Clauses: What NDAs Actually Protect
Teleological analysis of NDA provisions yields the conclusion that their purposes encompass:
- protection against disclosure of information to competitors, media, and counterparties,
- safeguarding trade secrets,
- prevention of information exploitation to the detriment of the other party in a market context.
None of these objectives requires — or justifies — precluding a party from consulting her own legal advisor. An attorney is not a competitor, not a journalist, and will not exploit information in the marketplace. The attorney is an actor whose sole function is protecting the client’s interests within rigorously defined ethical and legal constraints.
An interpretation of an NDA that precludes legal consultation would constitute a perversion of the institution — the deployment of an information-protection instrument as a tool of procedural domination.
Abuse of Rights: Article 5 of the Civil Code as the Limiting Principle
Even assuming a literal interpretation of a confidentiality clause suggesting prohibition of any disclosure whatsoever, enforcement thereof for purposes of precluding legal consultation would constitute abuse of a subjective right within the meaning of Article 5 of the Civil Code.
The exercise of a right in a manner inconsistent with its socio-economic purpose or with principles of social coexistence is not regarded as the exercise of that right and does not enjoy legal protection. A confidentiality clause serving not to protect information (which remains protected by attorney-client privilege) but solely to impede the opposing party’s defense of her rights constitutes a paradigmatic instance of such abuse.
In extreme cases, one might even contemplate the nullity of such a provision pursuant to Article 58 § 2 of the Civil Code as contrary to principles of social coexistence — particularly where the clause was imposed upon the weaker party within the framework of an adhesion contract.
Consequences for the Party Abusing an NDA
A party attempting to utilize a confidentiality clause to obstruct her counterparty’s access to legal assistance exposes herself to:
Challenge to the Validity of the Provision (Article 58 § 2 of the Civil Code) — a clause interpreted to preclude realization of constitutional guarantees may be deemed contrary to principles of social coexistence and therefore void.
Denial of Legal Protection — a court may decline to grant relief predicated upon alleged breach of a clause so interpreted, invoking Article 5 of the Civil Code.
Liability in Damages — where obstruction of access to legal assistance occasions loss (e.g., disadvantageous transaction terms that the party was unable to evaluate absent professional support), the aggrieved party may seek compensation.
Reputational Risk — in litigation, revelation that a party deliberately impeded her counterparty’s access to legal assistance may adversely affect the court’s assessment of her credibility and intentions.
Particular Contexts: M&A Transactions and Due Diligence
The problem assumes heightened significance in the context of mergers and acquisitions and due diligence processes. In such contexts, the parties regularly exchange information subject to confidentiality provisions, yet each simultaneously requires legal support to assess transaction risks.
An attempt to utilize an NDA to preclude the counterparty from obtaining legal consultation in a transactional context would constitute a particularly egregious abuse — effectively coercing contract execution without the possibility of professional assessment of its terms. Such practice might be characterized not merely as abuse of rights but, in extreme cases, as an element of fraud or action to the counterparty’s detriment.
Practical Guidance: How to Safely Consult Legal Counsel
Notwithstanding the unequivocal legal assessment, a party apprehensive about allegations of NDA breach may adopt additional precautionary measures:
Selection of Counsel Subject to Statutory Professional Secrecy — a legal advisor, advocate, or tax advisor, rather than a “legal consultant” lacking professional credentials.
Written Legal Services Agreement — expressly incorporating a confidentiality clause and the advisor’s undertaking not to disclose information.
The Need-to-Know Principle — disclosure limited to information necessary for the provision of legal assistance.
Documentation of Purpose — preservation of evidence that information transmission occurred for purposes of defending rights or fulfilling legal obligations.
These measures are not legally required for effective consultation but may facilitate argumentation in the event of subsequent dispute.
Conclusion
A confidentiality clause protects information — not negotiating position. An NDA cannot serve as an instrument severing the counterparty from professional legal assistance. Such an interpretation would contravene the Constitution, the ratio legis of the NDA institution, and principles of social coexistence.
A party receiving information subject to a confidentiality clause and contemplating whether she may consult legal counsel — may do so without apprehension. A party attempting to utilize an NDA to obstruct such consultation — abuses her rights and exposes herself to legal consequences.
The right to defense constitutes a constitutional value. A civil law contract cannot abrogate it — and no interpretation of a confidentiality clause should lead to a contrary conclusion.
This article is provided for informational purposes and does not constitute legal advice in any individual matter. For questions concerning specific circumstances, please contact the Firm.
Founder and Managing Partner of Skarbiec Law Firm, recognized by Dziennik Gazeta Prawna as one of the best tax advisory firms in Poland (2023, 2024). Legal advisor with 19 years of experience, serving Forbes-listed entrepreneurs and innovative start-ups. One of the most frequently quoted experts on commercial and tax law in the Polish media, regularly publishing in Rzeczpospolita, Gazeta Wyborcza, and Dziennik Gazeta Prawna. Author of the publication “AI Decoding Satoshi Nakamoto. Artificial Intelligence on the Trail of Bitcoin’s Creator” and co-author of the award-winning book “Bezpieczeństwo współczesnej firmy” (Security of a Modern Company). LinkedIn profile: 18 500 followers, 4 million views per year. Awards: 4-time winner of the European Medal, Golden Statuette of the Polish Business Leader, title of “International Tax Planning Law Firm of the Year in Poland.” He specializes in strategic legal consulting, tax planning, and crisis management for business.
