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A clause within a confidentiality agreement
Thread poster: Cecilia Coopman, M.A. in Translation

Cecilia Coopman, M.A. in Translation  Identity Verified
United Kingdom
Local time: 20:45
English to Spanish
+ ...
Oct 14, 2006

Hello colleagues,

Would you accept this clause;?

"In the event that a negligence claim arises from the [Name] trial which may require the involvement of Provider or its nominated solicitors, all relevant information relating to [Name] trial may be disclosed to the nominated solicitors for the purpose of reviewing, accessing and defending the negligence claim.

Provider means me, the translator.

It is not clear for me what kind of negligence they are refering to here.

Many thanks in advance for your opinions


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Victor Dewsbery  Identity Verified
Germany
Local time: 21:45
German to English
+ ...
Perhaps I have missed the point ... Oct 14, 2006

... but in my reading, this clause seems to grant you a right.

If somebody wants to sue you and you nominate a solicitor, you are then entitled to show confidential stuff to your solicitor so that he/she can use it in your defence. Normally the client will roast you at a great heat if you show anyone the confidential material, but here they are making an exception in your favour.

Which of course leads to another question: who is liable to sue you, and why?
What liability does the client expect you to bear? (This should be spelled out somewhere else in the contract.) If it is an agency, will they handle any liability claims on your behalf? Who will pay for your solicitors if you ever need them? Who will pay the court costs, and who will pay the compensation to the end client that has suffered from the error? And what is the state of your professional liability insurance?

This, of course, opens up a whole new area of controversy. How important is professional liability insurance? Has any translator ever been sued for the consequential costs arising from a translating error, or is this sort of clause merely a formality that nobody ever puts to the test?

So there may be reasons not to sign the contract, but if there are such reasons, this clause would seem to be the least of your problems.


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Ford Prefect  Identity Verified
Burkina Faso
Local time: 19:45
German to English
+ ...
... Oct 14, 2006

I agree with Victor's reading. The contract should stipulate that your liability to the client is limited to the fees paid, most reputable agencies are happy to agree to this if they have heard good things about you. This affords you protection in terms of contract unless such agreements are not legal where you live. However, no contractual clause can protect you against a tort action, in principle anyone who can foreseeably be influenced by your translation and claims to have suffered damages because of something you did, even for free and out of the goodness of your heart, could sue you for negligence. In practice, we have heard rumours, and rumours of rumours, but no-one has ever shown me a case of judgment being passed against a translator for professional negligence or similar. In countries which have a test along the lines of "work that does not fall below the standard of that which would be expected of an average practitioner", it must be nearly impossible for clients or direcly injured parties to successfully claim professional negligence and our learned friends will advise accordingly - since all you would have to do is show the court the "average" (i.e. atrocious) standard of much translation. Just pick up a few instruction manuals, for example.

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Cecilia Coopman, M.A. in Translation  Identity Verified
United Kingdom
Local time: 20:45
English to Spanish
+ ...
TOPIC STARTER
thanks Oct 16, 2006

Hi,

Thanks for your comments. Yes, they give me this "benefit"; however, that is exactly what was bothering me.... why? I think the confidentiality agreement I got is badly written. They actually contradict themselves because they also asked to delete all electronic copies from my computer or shred printed documents, so how can I provide this info to my solicitors anyway?

The liability issue is also not clear at all in the agreement. In fact, this is the only clause they talk about it.

I have contacted my client raising this issues, so I will see what they answer.

Many thanks.

Cecilia


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