Another approach is to specify in the agreement what happens when an employee fails to meet his or her confidentiality obligations, with some of the settlement money being repayable depending on the seriousness of the breach. However, such a wording can be difficult to formulate and take time to negotiate. In any event, it can be difficult to recover money from a former employee as soon as the amount of compensation has been paid. Mr. Steels brought a district court action for the remainder of the transaction, which the employer defended on the grounds that a breach of the confidentiality clause constituted a serious breach of contract that required him to break the agreement. Legally, this is a “refusal of contract.” The regional court judge found that the former employee`s testimony had not harmed the company, so it was not serious enough to allow him to reject it. The employer appealed to the High Court. The confidentiality clauses contained in the transaction agreements present unique risks for lawyers and their clients. If an agreement contains a strict confidentiality clause, there may be almost infinite obligations for the parties and their lawyers.
Taking into account the following considerations, lawyers can work to meet clients` expectations while respecting their ethical obligations in accordance with the rules of professional conduct. Even an erroneous breach of a confidentiality provision can result in damages, whether the violation is due to the conduct of the client or lawyer. That`s why many lawyers discuss with their clients the importance of respecting the confidentiality rules of the transaction agreement, especially in the age of social media. In situations where a large number of customer representatives are aware of a transaction, it may be desirable to include in the agreement conditions that only disclosure of certain detailed billing conditions can be considered a violation of the agreement. Otherwise, the injuring party may be obliged, in the event of an infringement, to return the proceeds of the transaction or to pay other damages. If the employer has already paid the money owed under the transaction contract, the employer can sue the employee for restitution. There is generally an exception to confidentiality where disclosure is required by law or by subpoena in another court proceeding. Many transaction agreements will specifically consider what should happen if confidential transaction information is required by subpoena or imposed by law, including by providing the un convened party with the opportunity to object to the disclosure of information.
After paying a number of payments, the employer found that the worker had violated the confidentiality clause by making the transaction and the amount of the payment to a single third party. She then did not make any further payments. Subsequently, the employee decided in the regional court to initiate proceedings to recover the balance of the agreed transaction amount. The employer responded by stating that there were no other amounts earned because of the breach of the confidentiality clause. The regional court judge ruled in favour of the employee, which was upheld on appeal. Transaction agreements generally contain a confidentiality clause that requires an employee to keep the existence and terms of a billing confidential.