Legal problems between agency and ex-PM
Thread poster: Anna Spanoudaki-Thurm

Anna Spanoudaki-Thurm  Identity Verified
Germany
Local time: 10:24
Member (2009)
German to Greek
+ ...
Dec 9, 2014

Agency E has been a good client of mine for many years. I always had a good cooperation with them and their competent PMs. Among these PMs was also X.

Last summer, E got in touch with me regarding a translation. I noticed that she was working for another agency F ("F" being a name very similar to "E") but it did not bother me. It was not the first time that I saw PMs changing to other agencies and I was happy to work with X again. I accepted, did the translation, was paid for it.

Now, agency E sent a notification alleging that X does not work for them but she has stolen their translators' and clients' database. They asked whether I had worked for X and the new agency that she has founded. I informed them that I had. Now, they ask me to provide them with any evidence I might have, including the name of the end-client and the translated documents.

I looked at my older files and I found that I had completed a small proof-reading assignment for the same end-client two years ago. I had forgotten about it - also because the end client's name changed and they had a new (to me at least) logo. It seems, therefore, plausible that X has "stolen" E's client.

Still, I do not feel comfortable with revealing the clients name or sending the translated documents, because I feel that the evidence I have (my having worked for the client through E and what E alleges) is not sufficient to justify revealing confidential information.
I have already mentioned that I would, of course, give any information to the police or a court.

Am I over-cautious? What would you do?





[Έγινε επεξεργασία στις 2014-12-09 14:57 GMT]


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DLyons  Identity Verified
Ireland
Local time: 09:24
Spanish to English
+ ...
It's not your problem. Dec 9, 2014

You have acted in good faith, and have no need to form any views on the rights/wrongs of their dealings with each other. I suggest ceasing all communication relating to their problems. Send no documentation or evidence, or become in any way involved in their dispute. It's a business issue for them to sort out themselves.

If either, or both, offer you work accept it (as long you are sure you will be paid). Your client-base is entirely your personal (and confidential) choice.


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Anton Konashenok  Identity Verified
Czech Republic
Local time: 10:24
English to Russian
+ ...
Don't rush into providing the requested information Dec 9, 2014

You have contractual relationships with both E and F, but not with X. Whatever X did to E is between her and E, and, technically speaking, you are not a party to that conflict and are not contractually obligated to provide information. On the other hand, you probably owe a contractual duty of confidentiality to F, from which you can only be relieved by F or by a competent authority (a court qualifies as one, while police probably doesn't). In such a situation, I would respond to E that even though I am theoretically willing to provide that information, I am bound by the confidentiality obligation to F, and thus cannot provide such information until lawfully relieved of that obligation. Essentially, this letter is a polite refusal to provide the information until forced to do so by the court. The court can summon you as a witness anyway, so the letter merely restates the obvious in a polite way.

[Edited at 2014-12-09 14:57 GMT]


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Anna Spanoudaki-Thurm  Identity Verified
Germany
Local time: 10:24
Member (2009)
German to Greek
+ ...
TOPIC STARTER
So we all agree... Dec 9, 2014

Thank you DLyons and Anton. I appreciate it!

[Έγινε επεξεργασία στις 2014-12-09 19:08 GMT]


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José Henrique Lamensdorf  Identity Verified
Brazil
Local time: 06:24
English to Portuguese
+ ...
If you are a FREElancer, NO agency 'OWNS' you Dec 9, 2014

Though some overly draconian NDAs may lead you to think that an agency does own you, and can freely rule on who you can and who you can't work for, that's not true.

Of course, if you are working for ACME via Agency X, and the agency tells you to contact Mr. Jim Smith at ACME directly on some technical matters regarding your translation, it is blatantly dishonest to offer him your services directly.

On the other hand, if you have had NO direct contact whatsoever with ACME, and its subsidiary in your country finds you via your web site or your Proz profile, or even if that Mr. Smith does it himself, you should not have any obligation to refer this job to Agency X.

I uphold very strict non-disclosure rules.

Of course, when a client is or has become a personal friend, I'll ask them about any conflicting assignment, however on account of my personal relationship only. Also, of course, I won't disclose to them any intel I have access to resulting from working for their competition. I truly expect that a friend would never ask about it.

On the other hand, I tell all my clients that I suffer from self-induced professional Alzheimer's. (Unless they are personal friends, of course...) I don't remember any of them, nor what I did for them or anybody else in the past. This covers the non-disclosure issue beautifully.

Some clients are shocked to learn that I don't recall having given them a cost estimate two months ago. Then they realize it's for their own good: nothing leaks to anybody else, like it doesn't leak back to them.

If a PM returns to me from a different agency, I won't remember them either. If the person remains as nice as they were in the past, they'll get the same excellent customer service I got them used to. No harm done.

If their old agency asks me for evidence that I worked for this PM in the new agency, I simply won't remember, sorry about that...

[Edited at 2014-12-09 18:22 GMT]


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Rachel Waddington  Identity Verified
United Kingdom
Local time: 09:24
Member (2014)
Dutch to English
+ ...
Not your problem Dec 9, 2014

As others have said, this is not your problem and you have no obligation to get involved. I'd stay out of it and carry on working for whoever I wanted to. Tell them you have an obligation to keep the information they want confidential and so can't provide it.

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Lawyer-Linguist  Identity Verified
Portugal
Local time: 09:24
Dutch to English
+ ...
I'd word it differently. Dec 9, 2014

Rachel Waddington wrote:

Tell them you have an obligation to keep the information they want confidential and so can't provide it.


Tell them that IF you had any such information, you'd be under the same duty of confidentiality that applies to their information and would not be able to provide it.

[Edited at 2014-12-09 19:53 GMT]


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Merab Dekano  Identity Verified
Spain
Member (2014)
English to Spanish
+ ...
Confidential is what it says it is Dec 9, 2014

Anna Spanoudaki-Thurm wrote:

is not sufficient to justify revealing confidential information.
I have already mentioned that I would, of course, give any information to the police or a court.



Absolutely, confidential or proprietary information may only be subject to disclosure under court order or other lawful process. This is a boilerplate that we usually translate, but it has a clear meaning and message (and warning?) to it.

You can sympathize, but should not do anything beyond that. Keep clear from unnecessary legal and emotional problems.


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José Henrique Lamensdorf  Identity Verified
Brazil
Local time: 06:24
English to Portuguese
+ ...
On court orders Dec 9, 2014

Merab Dekano wrote:

Absolutely, confidential or proprietary information may only be subject to disclosure under court order or other lawful process. This is a boilerplate that we usually translate, but it has a clear meaning and message (and warning?) to it.


Here in Brazil (where there is a specific law on sworn translations - details here), some sworn translation clients are concerned with my non-disclosure, as the law requires me to keep a copy of all such sworn translations hardbound in 400-page books. My surviving family members are expected to surrender these books to the sworn translators surveillance agency upon my demise.

Considering many business agreements that I've translated, I've taken a lesson from there on non-disclosure.

Let's envision one possible case; though I've never heard of such a situation, like the Italians say, Se non è vero, è ben trovato.

Say a couple got divorced, and the ex-husband became absurdly wealthy afterwards... several times wealthier than the ex-wife's lover, who caused the entire snafu. She wants her alimony, allegedly "for the children", drastically readjusted, in view of the new situation.

After some investigation her lawyer finds out that the ex-husband is now involved in big international deals, and he had me do a sworn translation of his income tax return, so a foreign bank would have evidence on his income and assets. They file a plea in court for readjusting her alimony "for the children", and request the judge to issue a court order demanding that I provide a copy of such translation (that, according to the law, will have to be back-translated into Portuguese by a sworn translator) as evidence of her ex's current assets and income.

It would be normal that they'd give me some time to produce that copy. According to the lesson learned from those business agreements, I'd advise the ex-husband (my client) on that court order, so he can file a plea for overruling it on account of any law on tax return non-disclosure, if there is any (I wouldn't know, I'm not a lawyer).

So there is plenty we can do before disclosing any translation work we've done.


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Anna Spanoudaki-Thurm  Identity Verified
Germany
Local time: 10:24
Member (2009)
German to Greek
+ ...
TOPIC STARTER
Yes, but... Dec 10, 2014

José Henrique Lamensdorf wrote:

Though some overly draconian NDAs may lead you to think that an agency does own you, and can freely rule on who you can and who you can't work for, that's not true.

Of course, if you are working for ACME via Agency X, and the agency tells you to contact Mr. Jim Smith at ACME directly on some technical matters regarding your translation, it is blatantly dishonest to offer him your services directly.

On the other hand, if you have had NO direct contact whatsoever with ACME, and its subsidiary in your country finds you via your web site or your Proz profile, or even if that Mr. Smith does it himself, you should not have any obligation to refer this job to Agency X.

I uphold very strict non-disclosure rules.

Of course, when a client is or has become a personal friend, I'll ask them about any conflicting assignment, however on account of my personal relationship only. Also, of course, I won't disclose to them any intel I have access to resulting from working for their competition. I truly expect that a friend would never ask about it.

On the other hand, I tell all my clients that I suffer from self-induced professional Alzheimer's. (Unless they are personal friends, of course...) I don't remember any of them, nor what I did for them or anybody else in the past. This covers the non-disclosure issue beautifully.

Some clients are shocked to learn that I don't recall having given them a cost estimate two months ago. Then they realize it's for their own good: nothing leaks to anybody else, like it doesn't leak back to them.

If a PM returns to me from a different agency, I won't remember them either. If the person remains as nice as they were in the past, they'll get the same excellent customer service I got them used to. No harm done.

If their old agency asks me for evidence that I worked for this PM in the new agency, I simply won't remember, sorry about that...

[Edited at 2014-12-09 18:22 GMT]


I agree with all the above.
The special situation here is that there exists evidence that X has committed fraud. I think it is acceptable if a PM continues to work with his/her preferred translators after changing to a different agency or founding his/her own. It is, though, a very different thing if one walks away with the most important assets of one's former employer: in this case, the clients and translators databases. In this particular case, I would not want to continue working with this person.


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Merab Dekano  Identity Verified
Spain
Member (2014)
English to Spanish
+ ...
Not to us to tell Dec 10, 2014

Anna Spanoudaki-Thurm wrote:

I agree with all the above.
The special situation here is that there exists evidence that X has committed fraud. I think it is acceptable if a PM continues to work with his/her preferred translators after changing to a different agency or founding his/her own. It is, though, a very different thing if one walks away with the most important assets of one's former employer: in this case, the clients and translators databases. In this particular case, I would not want to continue working with this person.



In principle, this is not to us to prove, believe or disbelieve. End clients are not our clients, if an agency acts as an intermediary.

The mentioned PM may have stolen the database or may have not. How can we tell that? We should not tell that in the first place.

I recall a chief investigator of NTSB once said: “if someone said something, it does not mean anything until you prove it yourself”. The problem is that we should not try to “prove it ourselves”, because we lack the necessary skills, training, competence and time to conduct an investigation.


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Andrea Halbritter  Identity Verified
France
Local time: 10:24
French to German
+ ...
Not your problem Dec 11, 2014

That's not your problem.

Sympathize, but tell them no more and keep away from any trouble.

If the agency insists tell them that you can not provide any more information due to confidentiality.


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