Do I need a NDA to talk with an attorney?

A common question I get from startups, inventors, entrepreneurs, and others starting new businesses who haven't worked with attorneys previously is whether they need a non-disclosure agreement (NDA) to talk with an attorney.

In most circumstance, I recommend a non-disclosure agreement (NDA) to protect the business's idea as they are shared with others. However, attorneys are governed by strict rules and codes of professional conduct relating to communications with clients. Think of this as a built-in NDA when talking with your attorney. But, what if you wish to consult with a few different patent attorneys before hiring the right one? Most state bar ethical rules including something along the lines of providing protections if the attorney’s words or actions induce an individual to reasonably believe that the individual is consulting an attorney in confidence and in his professional capacity to retain the attorney or to obtain legal services or advice.

If you’re still uncomfortable sharing the details of your invention, then keep the communications general. For example, you can share the general terms of your idea: “I have an idea for a new [device/app] to be used in/by [field/industry]." By only disclosing the general idea and not the details, the IP attorney can suggest next steps, costs, and timelines without getting into any potential conflicts of interest.

Note, if you are speaking to a patent agent, it is wise to have an NDA signed before disclosing your idea since patent agents are not lawyers.

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