I had, then lost, a new client this month. The breaking point was a work for hire agreement that specified I could not work for any company “in the same business” as this client for two years after working for them. My problem was that the document did not specify what business the client was in! So I added a phrase to do this, and they rejected the edit because they wanted to reserve the right to go into other, new businesses in the future. We thus went our separate ways.
This is not the first time I’ve lost work by declining to sign a legal document I felt was unreasonable. Once a small agency (whose client base was banking, not the CIA) wanted me to sign a commitment never to show any work I had done for them or even say I had done it. Since a freelancer needs to prove experience to get work, this didn’t seem a good idea. It’s not the same thing as signing an NDA (non-disclosure agreement) which I’ve done many times and simply holds the contractor responsible for keeping confidential any trade secrets revealed during the project.
What do you do to protect your legal rights while still getting new business? Do you show everything you are asked to sign to a lawyer? Do you have a lawyer draft your own estimates and contracts? I don’t. For one thing, the cost of the lawyer would cause me to raise my rates to a level the market wouldn’t bear. For another, if there ever were a legal complaint the cost of defending it would most likely put you out of business anyway, so the best defense is to act ethically in all your dealings and hope it never happens. This is the “reasonable person” (nee “reasonable man”) concept in which you honor any commitment, in writing or not, in a way that meets the expectations of your profession and the business community.
When I’m asked to propose an agreement to a client (as I’ve done a number of times in retainer relationships) I write a letter, in plain English, and put a place for both of us to sign at the end. I describe what it is I’m delivering, how it will be judged as satisfactory and complete, what are the payment and delivery terms, and how either party can get out of the contract. I deliberately keep it simple. Again, if they want to outwit me with a legal shenanigan they can do that easily enough but I’m hoping a satisfactory working relationship is more important.
Do you have professional liability insurance that would defend you if a client claimed a business failure was your fault? I don’t… see above, if you ever get a claim it’s probably going to put you out of business insurance or not. If you do purchase this insurance be sure the business you are in is clearly defined. You probably want it to be “advertising consultant” not simply “freelance writer” and you want to get a clear commitment from the insurer as to what is covered.
One type of insurance I do have is a “studio” rider on my homeowner’s policy (I work in a separate building on the same lot where our house is located) that covers the cost of business equipment, some business interruption costs, and personal liability as it relates to people who come on the property. Once a delivery man was surprised by my German Shepherd (long since deceased, by the way) and jumped off the second floor balcony; the insurance paid for his medical bills and time lost from work.
That’s what I do to protect myself legally. I’m sure it could be better, but I feel like it handles the worst scenarios. I’m gratified that most of my contracts, even for some fairly large clients, are still made with a handshake rather than a legal document. How about you?
because they deconstruct a word and turn it into a bunch of separate letters which the reader must look at one by one in order to make sense of it. Readers don’t do this. If there is any impediment to readability, they move on.