Agency's client stopped a longterm project with them and placed an online ad looking for freelancers
Thread poster: Tomi B

Tomi B
Finland
French to Finnish
Mar 7, 2019

Dear Colleagues,

I would like your opinion on one matter, over which I'm losing sleep. So I a have a long-time agency client (A) with whom I have a good relationship. Until quite recently I have been translating texts which were assigned to A by a company called B.

Some time ago A notified me that this particular type of work would cease because „their client“ (of course they never told me who it is but I have had many opportunities to indirectly learn that it‘s m
... See more
Dear Colleagues,

I would like your opinion on one matter, over which I'm losing sleep. So I a have a long-time agency client (A) with whom I have a good relationship. Until quite recently I have been translating texts which were assigned to A by a company called B.

Some time ago A notified me that this particular type of work would cease because „their client“ (of course they never told me who it is but I have had many opportunities to indirectly learn that it‘s most probably B) switched their model from working with agencies to working directly with freelancers.

Not long afterwards, I saw an online ad from a company looking for translators and I immediately realized it was B. I didn‘t think much and applied and later B let me know that they were willing to work with me. Then I started having doubts and looked at the NDA I had signed with A. The non-compete clause is particularly strict and wide there: it basically says that the service provider agrees not to attempt to contact, enter into contracts or accept work from A‘s clients. In many other contracts I have, this clause is more along the lines of „the service provider should not attempt to divert the company from their clients or solicit their clients in order to undercut the company“ or something like that. But in A‘s case, I have already breached the NDA by just contacting B, even though I did no harm to A‘s business interests and „officially“ learned about B from the public ad, as I‘ve explained in the beginning.

And so I‘m worried that if I start working with B client, A might find out and disapprove of my behaviour. Should I tell A about the situation (even though I‘ve already breached the NDA) and then possibly tell B that I cannot after all work with them due to conflict of interest, or should I keep quiet and go ahead?

Sorry for the long post and thanks for any opinions.
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Morano El-Kholy  Identity Verified
Egypt
Local time: 06:13
Member (2011)
English to Arabic
+ ...
You have not breached any rule yet! Mar 7, 2019

Tomi B wrote:

.... "officially“ learned about B from the public ad, as I‘ve explained in the beginning.


Dear Tomi B,

You did not breach anything! Because:

1- You have applied to work with the agency "officially" after its posted public ad.
So, you will not be the only applicant applying for this positio
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Tomi B wrote:

.... "officially“ learned about B from the public ad, as I‘ve explained in the beginning.


Dear Tomi B,

You did not breach anything! Because:

1- You have applied to work with the agency "officially" after its posted public ad.
So, you will not be the only applicant applying for this position.

2- You could not be possibly sure 100% that agency "B" is itself their current client.

Should I tell A about the situation (even though I‘ve already breached the NDA) and then possibly tell B that I cannot after all work with them due to conflict of interest, or should I keep quiet and go ahead?


No, do not make a hassle about anything! These could be merely doubts! Go ahead and start working with them.

Best wishes.

[Edited at 2019-03-07 08:45 GMT]
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Jacek Sierakowski
Elif Baykara Narbay
 

Maxi Schwarz  Identity Verified
Local time: 22:13
German to English
+ ...
a general thought about this rule in contracts Mar 7, 2019

Very often agencies hire is for work without ever telling us who their client is. How, then, can you avoid working for someone when you don't know who that person is?

Kay-Viktor Stegemann
Sarah Lewis-Morgan
Viviane Marx
Jacek Sierakowski
Elif Baykara Narbay
Rachel Waddington
Kay Denney
 

Chris S  Identity Verified
United Kingdom
Swedish to English
+ ...
I wouldn't worry Mar 7, 2019

You say B is no longer A's client. Problem solved.

Elif Baykara Narbay
Rachel Waddington
Kay Denney
Ricki Farn
Robert Forstag
Tom in London
Michele Fauble
 

Tomi B
Finland
French to Finnish
TOPIC STARTER
I may have got the title wrong Mar 7, 2019

Chris S wrote:

You say B is no longer A's client. Problem solved.



Chris, I might have made a mistake in the topic title – I actually can't know whether or not B still work with A (they may well do), I only know that they stopped assigning this particular long-term project I used to work on.

But as Morano and Maxi have pointed out, the supply chain can be quite complicated so you can't really know 100% who is whose client unless your client tells you, which will never happen.


 

Maria Pia Giuseppina Nuzzolese  Identity Verified
Italy
Local time: 05:13
Member
English to Italian
+ ...
Tell them Mar 7, 2019

Apart from NDAs, I would simply write a couple of lines to the agency, especially if - as you say - it's a long-time agency client with whom you have a good relationship. Just inform them that you would like to apply for company B, but before that you want to be sure that there's no problem from their side; I'm sure they will appreciate it, and - most importantly - you will have a written consent in case of further inquiries.

Natalia Pedrosa
Yolanda Broad
Teresa Borges
ilker menderes iyidogan
 

Chris S  Identity Verified
United Kingdom
Swedish to English
+ ...
@Tomi Mar 7, 2019

Tomi B wrote:
Chris, I might have made a mistake in the topic title – I actually can't know whether or not B still work with A (they may well do), I only know that they stopped assigning this particular long-term project I used to work on.
But as Morano and Maxi have pointed out, the supply chain can be quite complicated so you can't really know 100% who is whose client unless your client tells you, which will never happen.

That uncertainty is certainly your get-out-of-jail-free card.

Even without that, (1) how could they know you're now doing the job and (2) do they really have the time/inclination to follow up these things?

Personally, the last thing I would do is ask them if it's OK. They might say no.


Morano El-Kholy
Rytis G
Joe France
Kevin Fulton
Robert Forstag
Tom in London
Rachel Waddington
 

Samuel Murray  Identity Verified
Netherlands
Local time: 05:13
Member (2006)
English to Afrikaans
+ ...
SITE LOCALIZER
It's no longer their client Mar 7, 2019

Tomi B wrote:
Some time ago A notified me that this particular type of work would cease because „their client“ (most probably B) switched their model from working with agencies to working directly with freelancers.


So, from that point onwards, B is no longer a client of A.

And so I‘m worried that if I start working with B client, A might find out and disapprove of my behaviour. Should I tell A about the situation (even though I‘ve already breached the NDA) and then possibly tell B that I cannot after all work with them due to conflict of interest...


Yes, it sounds like you want to keep A as a client, so if you believe that there is possibly a conflict of interest or a situation which the NDA relates to, the easiest way to solve it is to ask client A if they would mind if you worked directly for that unknown client as a freelancer. You don't have to mention client B's name (although it can't hurt). Just refer to the client that they spoke about in their initial notice.

This has happened to me on two occasions and in both cases the agency said "no problem" when I asked them if I could continue to with for their old client. That said, it may also happen that they say "no, we don't want you to", and then you have to decide what you want to do.

Also, how sure are you really that client B was client A's client? Perhaps the work you did was about company B, but that doesn't mean that the client was company B (the client could have been someone else who were commissioned to do with about company B).


Maria Pia Giuseppina Nuzzolese
Elif Baykara Narbay
 

Thomas T. Frost  Identity Verified
Member (2014)
Danish to English
+ ...
No breach Mar 7, 2019

If it cannot be objectively deducted from the work you have already carried out via A who B is, and A has never told you, then I can't see how it could be covered by the non-competition clause.

Your guess may be right or wrong. You don't base decisions like this on guessing.

In such a situation, I would not risk complicating the situation by informing A or B but just go ahead and work for B if they accept it.

I often ask outsourcers who a client is so I can
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If it cannot be objectively deducted from the work you have already carried out via A who B is, and A has never told you, then I can't see how it could be covered by the non-competition clause.

Your guess may be right or wrong. You don't base decisions like this on guessing.

In such a situation, I would not risk complicating the situation by informing A or B but just go ahead and work for B if they accept it.

I often ask outsourcers who a client is so I can add them to a list for non-competition purposes. But sometimes the outsourcer doesn't know either, or I'm just not told. In that case, it's not possible to apply the non-competition clause.

[Edited at 2019-03-07 13:41 GMT]
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Morano El-Kholy
Kevin Fulton
Rita Translator
tinageta
Sandra & Kenneth Grossman
 

Maria Pia Giuseppina Nuzzolese  Identity Verified
Italy
Local time: 05:13
Member
English to Italian
+ ...
So... Mar 7, 2019

Chris S wrote:

Tomi B wrote:
Chris, I might have made a mistake in the topic title – I actually can't know whether or not B still work with A (they may well do), I only know that they stopped assigning this particular long-term project I used to work on.
But as Morano and Maxi have pointed out, the supply chain can be quite complicated so you can't really know 100% who is whose client unless your client tells you, which will never happen.

That uncertainty is certainly your get-out-of-jail-free card.

Even without that, (1) how could they know you're now doing the job and (2) do they really have the time/inclination to follow up these things?

Personally, the last thing I would do is ask them if it's OK. They might say no.


...nothing is illegal until you get caught? If they say no (I mean if they have the legal ground to say no), it means that you are breaching the NDA you signed with them. They won't say no on principle. I think the best thing you can offer to a client is honesty and trustworthiness, so there's no need to be afraid. They might say no, but at least they will know they can trust you as a professional.


Yolanda Broad
Teresa Borges
ilker menderes iyidogan
 

IrinaN
United States
Local time: 22:13
English to Russian
+ ...
Non-compete in NDA? Mar 7, 2019

I've heard about this fairly new nasty practice but never signed anything like that myself. NDAs should take no more than half-page, especially when one is required at the initial stage of establishing the relationship. Everything else belongs in the actual contract.

I would recommend to never sign any overextended NDAs.

Since A had never officially informed you about the end client's name, you have no obligations to them. It could have been harder in case of interpreti
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I've heard about this fairly new nasty practice but never signed anything like that myself. NDAs should take no more than half-page, especially when one is required at the initial stage of establishing the relationship. Everything else belongs in the actual contract.

I would recommend to never sign any overextended NDAs.

Since A had never officially informed you about the end client's name, you have no obligations to them. It could have been harder in case of interpreting at the client's premises but unless they want to act like a monster-in-law with vengeance, why would they go after you now?

It makes sense to check whether this clause is enforceable at all in your locale. Sometimes it's nothing but a scarecrow. For example, it is not here in Texas, at least against physical persons. The laws of the state prevail and no one has a right to prevent anyone from making a living, especially when the job is available and a person is willing and capable to make decent money within h/h qualifications, remain a diligent shopper and pay taxes rather than tapping into the system. Our cowboys prefer a working man/woman over a welfare recipient:-)
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Chris S  Identity Verified
United Kingdom
Swedish to English
+ ...
No Mar 7, 2019

Maria Pia Giuseppina Nuzzolese wrote:
...nothing is illegal until you get caught? If they say no (I mean if they have the legal ground to say no), it means that you are breaching the NDA you signed with them. They won't say no on principle. I think the best thing you can offer to a client is honesty and trustworthiness, so there's no need to be afraid. They might say no, but at least they will know they can trust you as a professional.

No, I'm saying that, as the situation has been described, OP has no obligation to ask A about it, nothing to gain by doing so, and nothing to lose by not doing so.

That's not dishonest or unprofessional.

On Planet NDA, of course, asking A is actually unethical because B's dealings with you are confidential...

Is there no place for common sense any more?


IrinaN
Thomas T. Frost
Morano El-Kholy
Vera Schoen
Kevin Fulton
Gareth Callagy
Apolonia Dermit
 

Kuochoe Nikoi-Kotei  Identity Verified
Ghana
Local time: 04:13
Japanese to English
Free your mind Mar 7, 2019

Unless A has specifically told you (in writing) that B is their client, you owe them nothing. For all you know, there could be an intermediary agency C between A and B, or something similarly complicated. Can A prove that you know for sure that B is their client? If yes, don't go there. If no, go right ahead. I don't see the point in asking A for permission to do anything. They are not your bosses.

Thomas T. Frost
Morano El-Kholy
Katalin Horváth McClure
Rita Translator
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valerie hussar
Local time: 07:13
English to Russian
no woman no cry Mar 13, 2019

[quote]Morano El-Kholy wrote:

Tomi B wrote:

.... "officially“ learned about B from the public ad, as I‘ve explained in the beginning.


Dear Tomi B,

You did not breach anything! Because:

1- You have applied to work with the agency "officially" after its posted public ad.
So, you will not be the only applicant applying for this position.

2- You could not be possibly sure 100% that agency "B" is itself their current client.

....


3- you have no formal proof that B is or was their client
4 - some unknown b took the job off your A? that minute b stopped being your known A's client even if it had been the B (the client). you are good to work with b, B, c, D, Ee...because they are all just b, c, d, e - you have no clue if they are affilliated in any way with A (unless otherwise clearly specified)(check A's web page and make some screenshots to be sure). Some orders placed by some companies in public domain - you are eligible to apply.


 

Eliza Hall
United States
Local time: 23:13
Member (2018)
French to English
+ ...
Don't ask Mar 13, 2019

Chris S wrote:

I'm saying that, as the situation has been described, OP has no obligation to ask A about it, nothing to gain by doing so, and nothing to lose by not doing so.

That's not dishonest or unprofessional.

On Planet NDA, of course, asking A is actually unethical because B's dealings with you are confidential...

Is there no place for common sense any more?



I've actually drafted NDAs as a lawyer and I agree. "A" didn't tell you who their clients were, and the NDA they had you sign sounds like it does not include any obligation on you to check with A whether a company that you're considering working for is one of their clients. Indeed, as of now, you still don't even know for sure whether B has ever been their client. It doesn't sound like you have any obligation here at all. I would think that if A wanted to prevent you from working for their clients, they have to tell you who their clients are. How else can you possibly comply? But they obviously care more about client confidentiality than they care about having an NDA that they can actually enforce. Fine, that's their decision to make.

You have nothing to gain by asking them, and you have more to lose than you might think. Not only would you lose the future work from B (if B is their client), you might be giving A an argument that from now on you have to check with them every time you're considering working for a company, to make sure that company isn't a client of A's. And by the way, you would also be alerting A that their NDA sucks and needs to be redrafted, so you would not only be doing your fellow translators who work for A a disservice, you might also be required to sign a new, stronger, better-written NDA with A before you can continue working for them!

[Edited at 2019-03-13 20:42 GMT]


Arianne Farah
 


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