As consultants, everything we do should be confidential in the broadest of terms. We are being commissioned by our client/s to provide them with advice and qualified information and solutions to their request for our services. For this reason, I always insist on working to a written brief, with the name and address of the person or persons employing me clearly shown as ‘The Client’ with the address of the property subject to my reports shown on the header or first page. If more than one person e.g. husband and wife or a partnership, both or all names should be included in the heading.
You need to establish your client’s identity, the project site and full description of the brief as provided to you, or agreed by both Parties. All business conducted between the two Parties should be considered strictly confidential, and if necessary, a clear statement added to the front cover of the report to that effect. If the customer wishes to disseminate the information, to their family or staff, that is their affair, but as the paid consultant, you need to offer total confidentiality at all times. If your report causes any issues or disputes due to public sharing, the cause should not be your neglect in preserving the privacy of the contents.
This is not a matter of being neurotic, but merely a matter of integrity and good manners. The contents of our reports must be held sacred, if for no other reason, we are asked to work without fear or favour when producing our work, even if it causes difficulties elsewhere. This statement will apply even to the most uncontentious subjects. I have known of reports that have been critical of certain projects, condemning them as being unfit for purpose, only to find that the person responsible for the problem was shown a copy of the report by mistake.
We are obliged to be honest and unbiased in our opinions and advice, and not be concerned about politics – especially if we have not been warned to be diplomatic beforehand!
You may learn many details of matters that will inform you regarding a project which will be an essential part of your brief. These may include wages and salaries paid to staff, profit sharing schemes, proposals or existing financial arrangements, personal/ family affairs and future plans, imminent retirement plans or a host of other important personal or commercial information that should not be disseminated. We should consider ourselves to be in a privileged position, much as a Doctor or Priest, careful not to divulge personal or commercial information to those who are not entitled to it.
Under the General Data Protection Regulation 2016 (GDPR), which is set of guidelines for the collection and processing of personal information from individuals who live in the EU, the primary purpose is to protect your clients’ details from being made known to the public at large. The term ‘guidelines’ is interesting, as there are so many 42 caveats, provisions and requirements, one would need a company lawyer on your books full time! The essential principle is to enhance individuals’ rights over their personal data and to simplify regulatory environment for international business.
As far as we are concerned, as individuals who are given privileged access to personal data and information by our clients as and when necessary, it is incumbent that we honour that sentiment, as a matter of principle as well as Law. It is a Regulation, not a Directive, which allows for flexibility between countries in how they interpret the precise meaning, although fundamentally, it means that you are obliged to keep all personal information about your clients, and their business matters, strictly confidential and under safe cover (i.e. in a safe and secure place).
The primary consideration of GDPR is to prevent personal data from getting into the hands of firms and companies who will use that information for commercial reasons. It is not intended to include personal activities between individuals who may be exchanging information. Conversely, an entity – an enterprise, has to be engaged in commercial activity to be covered by GDPR, and it is safe to consider our consultancy work to fall within the regulations, even if it could be argued otherwise. It is safer to consider that everything we do or say in our reports should be treated as STRICTLY CONFIDENTIAL.
FIRST CONTACT PROTOCOL
Because I receive enquiries from various sources – including those seeking information from the Professional Garden Consultant’s Association (PGCA) website as the administrator of the site (the PGCA Register holds personal profiles on all of the Members, including their location and consultancy specialties) there are some people who cannot decide which Member to contact for their requirements.
The majority of my work concerns disputes and Court work, and I must be seen as independent at all times. I have a polite system of not allowing anyone to engage me in conversation over the telephone, instead asking them to email me with as much information as they can – even if it is simply an outline of their enquiry. The reason for this hesitancy is to prevent someone from trying to give me their side of a story in an attempt to persuade me of their righteousness. I am genuinely, totally independent, working for the Court. I cannot become an advocate for one side or the other, otherwise my reports could be rejected as invalid and produced against Court’s Protocol.
Personally, I prefer this initial distancing between myself and the caller, as it reinforces the importance of my independence, and the professional barrier that is erected from the outset renders my professionalism complete. Everybody suddenly understands the gravity of the situation, and common sense guides the conversation thereafter. As my terms and conditions, together with my rates/fees are shown on my website, my first question is to ascertain if they have seen that site. If they have, they will be aware of my costs, and not waste my time. Invariably, they have visited and understand their likely financial commitment. This makes all further conversation much easier to continue. I produce an invoice at the time of commission, which is payable in advance due to the adversarial nature of dispute work.
Obviously, this process is not necessary when I am dealing with professionals such as solicitors, because they are already aware of my Terms, rates and modus operandi. This clarity of establishing a working relationship is broadened to include the most sensible way forward to ensure that the caller receives the help they require. Many people really do not know what they want to achieve from their enquiry beyond general terms. They have a problem, and are looking for someone to come along and solve it for them. They THINK they know what they want, but do not know how to achieve their wishes.
NON-DISCLOSURE AGREEMENTS
A non-disclosure agreement (NDA) is also known as a confidentiality agreement (CA) or a confidential disclosure agreement (CDA) or sometimes a secrecy agreement (SA). These are all forms of legal contracts, or part of a contract between two Parties. On rare occasions, these may be published in the form of a deed.
Although NDAs are primarily used in business to protect Company or Trade secrets and to allow open disclosure of company information or working practices that need to be protected from being plagiarised, some individuals feel it important that they too, are covered by a legally binding contract when engaging an outsider into their domain.
I have worked in Embassies and Ambassador’s residences and have no problem with signing an agreement stating that I will not divulge any information regarding the security measures employed by the client, or how many valuables paintings are hanging on the wall!
I have also worked for Film stars who do not wish the public to know how they live. I have no problem with any of these, as they are all part of providing a confidential service to my clients. But some clients wish to go further, requiring a full-blown NDA signed and witnessed by a solicitor, whereby the consultant is known as ‘The Recipient’ (of information) with the client becoming ‘The Disclosing Party’, setting out in graphic terms the penalties for breaking the arduous terms of the document. Every word written, every question asked, every item of information provided to the consultant – no matter how important the information may be to the accurate production of the report – must be submitted in writing prior to being answered – if at all – and signed off by both Parties.
These types of imposition are not acceptable to me, in any way, shape or form. I simply could not do my job as a consultant without having full and frank confidential discussions with my client. I do not know how one would stand in a Court if you provided incorrect information to a client due to their reluctance to disclose relevant facts at the time of an interview. No doubt the NDA would have a penalty clause that states you are liable for massive costs for breaching the Agreement!
SURROGATE CLIENTS
There are times when a client is not able to be present on site, perhaps living outside of the country, only visiting on occasion or wishing to commission a report on a property they are thinking of purchasing. Although they may describe their brief to a third party, in their absence a surrogate is employed as their representative. This is usually an individual, although in some cases, a firm may be employed to act on their behalf. There is no reason to be concerned by this arrangement, provided that your terms of contract clearly state the authority by which they act, and your professional relationship with that surrogate person.
Usually, the surrogate will be a Solicitor, who has been instructed to act on behalf of the owner, and will provide you with a written agreement protecting you and agreeing to make all payments as they fall due. On occasion, the surrogate may be a family member or Agent, whose authority may not have the same legal weight that an instructed solicitor will enjoy. Your Terms and Conditions should identify the person acting as surrogate, and a signed arrangement put in place.
Always protect yourself at all times, ensuring that everything in your report identifies the situation under which you are engaged. I suggest that you do not enter into agreements with other trades (e.g. Structural Engineer) on behalf of the surrogate, leaving them instead to make their own arrangements.
As a consultant, you never know what the next commission is going to bring. By preparing for and expecting the unexpected, you will be able to cope with all comers!