Confidentiality

[Man of Chain]

Hi Everybody,

I am preparing a contract for Land Surveying services, while reviewing my draft contract with an attorney, I realized I had left out any part about confidentiality. I was hoping some of your fine minds could explain to me what all needs to be kept confidential between me and my future clients and why?

[mpallamary]

Out of curiosity, why is it a question. Do you use the CLSA contract form?

[mpallamary]

Per the PLSA:

8776.4. Effect of article on confidential agreements

(a) Notwithstanding any other provision of law, a licensee shall not be considered to have violated a confidential settlement agreement or other confidential agreement by providing a report to the board as required by this article.

[Man of Chain]

I thought it would be prudent to include it in my contract so the client has an understanding of my limitations of communication regarding their actions. No, I have formed my own contract. Is there not some confidentiality that we are supposed to maintain with our clients? as in, how much they paid, what they are doing, why pay for a survey?

[mpallamary]

I am not aware of any requirement other than conventional business relations. Absent some extraordinary circumstances, everything is discoverable. Discretion may be the order of the day, i.e., do not kiss and tell.

It is no one's business what my client and I agree to providing we are not violating any laws.

I hope the attached helps.

[Jim Frame]

I'm trying to think of a reason to codify confidentiality terms in a survey contract, but I'm not coming up with one. I prefer to keep contracts as simple as possible, which is the reason I use a one-page letter agreement (what I'll do, what I'll deliver, what they'll pay and when, plus BPELSG-required boilerplate) unless the client insists otherwise.

[Robert Martin]

Maybe you are thinking of Board Rules 476(d)... I certainly recommend, as a surveyor, we all should be familiar with Board Rules 476(d), but I don't have it referenced in my contracts.

FYI Board Rules 476(d) reads as follows:

Board Rules, 476 Code of Professional Conduct – Professional Land Surveying
(d) Confidential Information:
Confidential information obtained by a licensee, in his or her professional capacity, concerning a client, employer,
or other related party shall not be disclosed by the licensee without the permission of the client, employer, or other
related party except for the following:
(1) Disclosures made in response to an order of the court or to a subpoena or summons enforceable by an order of
the court.
(2) Disclosures made in an adjudicatory proceeding.
(3) Disclosures made in response to an official inquiry from a governmental regulatory agency.
(4) Disclosures made when required by law.
(5) Disclosures made upon discovering a hazard within the licensee’s field of professional expertise which may
threaten the health, safety, and welfare of the public.
(6) Disclosures made when providing evidence to the Board regarding other licensees or unlicensed individuals
who may have violated the Professional Land Surveyors’ Act.
(7) Disclosures made regarding illegal conduct.
As used in this section, “confidential information” means information identified as confidential by the licensee’s client,
employer, or other related party.

[David Kendall]

This is an interesting concept. One of the seminar speakers (Ethics - Knud Heransen PE PLS Esq) at this year's Western States conference suggested that any information that the client requests should remain confidential unless it meets the criteria of the 7 exceptions in 476(d).

The assertion was that this is true even if the information which the client requests to remain confidential is a description an encroachment of your client's residence onto an adjoining property which might constitute your idea of a material discrepancy which you feel ought to be shown on a Record of Survey in accordance with BPC 8762.

8762 (b)(2) A material discrepancy with the information contained in any subdivision map, official map, or record of survey previously recorded or filed in the office of the county recorder or the county surveying department, or any map or survey record maintained by the Bureau of Land Management of the United States. For purposes of this subdivision, a “material discrepancy” is limited to a material discrepancy in the position of points or lines, or in dimensions.

The suggestion was that this information could instead be included in a private survey report and the existence of said report would then be noted on the survey. Then the client will do with the report what he feels he should.

In re-reading this code, I see no conflict with this scenario. Next question: Is an encroachment a material discrepancy in the position of points, lines or dimensions?

I could imagine circumstances where this might place the surveyor into a bind between the rules.....

My contract does not contain the word confidential. I consider it one of the subjective terms of professional discretion or ethical considerations but it is not spelled out explicitly

[mpallamary]

I do include a non-disclosure agreement in some of my agreements.

https://en.wikipedia.org/wiki/Non-disclosure_agreement

See the attached. I use it when working with high-profile clients, generally.