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Current events have given rise to a number of inquiries from readers asking me to explain "confidentiality agreements."

"The lawyer even went to court to try to get the court to put the cat back into the bag. What is obvious to all but the truly obtuse, is that neither the court nor anyone else can put the cat back in the bag. Question: Why is everyone trying so hard?" Brauchli writes. (Photo: CNN)

A sekret ceases tew be a sekret if it iz once confided. . . .
— Josh Billings: His Sayings

From time to time, legal issues are presented by what in grade school would have been referred to as “current events.” And it is current events that have given rise to a number of inquiries from readers asking me to explain “confidentiality agreements.”

A confidentiality agreement is typically entered into when people are possessed of information about a given subject that is known only to them, and they agree, for whatever reason, that the information will not be shared with any third party but will remain a secret among the parties to the agreement.

Let us assume that a friend and I have conspired together to rob a bank, and believe it is in our mutual interest to enter into a confidentiality agreement, pursuant to the terms of which each of us agrees to never disclose the terms of our plan to rob the bank nor our respective identities. Assume I agree to be the driver of the getaway vehicle. If my colleague is arrested and I am not, and my colleague gives the police my name, that is a violation of our confidentiality agreement and I will be able to sue my colleague for breach of the confidentiality agreement.

Now that my readers understand how confidentiality agreements work, here is an example of a confidentiality agreement that might fall under the heading of “current events.” The facts of my example, like my bank robbery example, are purely fictional. Our exemplars, for purposes of this discussion, are called “Tempest” and “Cassius.”

Tempest happens to be in the sex trade, and makes movies that appeal to those with prurient interests, and engages in sexual acts with fellow actors and, on occasion, people who are willing to pay for sexual relations with her. She is quite discrete which is why she is known publicly only as “Tempest.”

During her professional life she occasionally encounters people who, having seen her movies, hope to get to know her better. If the person she encounters is attractive, she may willingly accompany him to a private location where she bestows her favors on him either with, or without, compensation, depending on how much fun she had during the encounter. At the conclusion of the encounter she and her partner may enter into a confidentiality agreement in which each of them agrees not to disclose any of the details of the encounter to ANYONE at any time. They might do that because Tempest does not want it known in professional circles, that she occasionally performs with amateurs. Cassius might want the agreement because without it Tempest might comment on his performance and even disclose, to Cassius’s great embarrassment, that his hands are not the only appendage he has that is small, even when excited. Such a confidentiality agreement, if entered into, is completely enforceable by either party.

Now let us assume that there is no agreement and they part as friends. Some years later Tempest decides to share details of the encounter with a reporter from a muckraking publication and gives a lengthy description of the encounter in which she includes a description of Cassius’s performance during their encounter saying: “It was one position, what you would expect someone his age to do. It wasn’t bad. Don’t get me wrong.”

Many years later, events transpire that cause Cassius to regret the absence of a confidentiality agreement. He asks his lawyer to prepare what might be called an “ex post facto” confidentiality agreement in which both he and Tempest agree to keep confidential that which, by now, is known about all over the world, although perhaps a few details are missing that Tempest overlooked when being interviewed.

Cassius’s lawyer is not a very good lawyer. He once worked as a veterinarian. When Cassius asks him to prepare a confidentiality agreement, the lawyer fails to tell his client that one of the things he learned as a veterinarian, is that on the day before you plan to operate on a cat, you put the cat in a bag so that you will know where it is when it’s time to operate. If the cat gets out of the bag you may not be able to recapture it in order to perform surgery. Had Cassius’s lawyer been a good lawyer, he would have shared that information with Cassius and that would have been the end of it. Instead, Cassius’s lawyer sends Tempest a check for a great deal of money and the EXACT confidentiality agreement Tempest and Cassius should have signed 12 years earlier, and before she gave her interview and all the details of her encounter with Cassius were known all over the world. Cassius hoped that by paying Tempest money, the cat would crawl back into the bag and everyone would forget the interview she had given a few years earlier. The lawyer even went to court to try to get the court to put the cat back into the bag. What is obvious to all but the truly obtuse, is that neither the court nor anyone else can put the cat back in the bag.

Question: Why is everyone trying so hard?

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Christopher Brauchli

Christopher Brauchli

Christopher Brauchli is a columnist and lawyer known nationally for his work. He is a graduate of Harvard University and the University of Colorado School of Law where he served on the Board of Editors of the Rocky Mountain Law Review. He can be emailed at brauchli.56@post.harvard.edu. For political commentary see his web page at http://humanraceandothersports.com

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