Under any type of employment agreement, including a consulting agreement, confidential information may be disclosed by the employer. Such confidential information may include any information not known to the public that if disclosed could adversely affect the employer’s business, including information such as:
Generally, an expert consulting agreement works like a standard employment agreement – at will – where either party can terminate the relationship at any time.
Although a consulting agreement may contain just a simple statement reminding the consultant that they must avoid any conflicts of interest, the obligation of the employer/attorney hiring the expert may be greater than that of the consultant to verify the consultant is truly not conflicted.
What are conflicts of interest?
Conflicts of interest can be defined as any situation in which an individual (or corporation) is in a position to exploit a professional or official capacity in some way for their personal or corporate benefit.
When retaining a new expert, an employer never knows how carried away an expert might get with an assignment. It is possible that the expert might misinterpret the assignment from the employer. It is also possible that the employer will not exactly know what to request of the expert and will figure it out along the way. To prevent an expert (whether a newly hired exert or not) from getting too far down the wrong path, it is best to limit the number of hours the expert works on any given task.
Most of the time, an expert’s consulting agreement contains a clause stating that the expert’s relationship between the expert and the employer will be an “independent contractor.”
Employers that define the expert’s employment as an “independent contractor” gain tax and legal advantages.
Whether or not you anticipate expenses arising from your expert’s activities, it is best to list possible expenses and set forth whether such expenses will be reimbursed or prepaid by the employer so as not to leave the matter open for debate at a later time.
Possible phrases within expense clauses might include:
Intellectual property (IP) refers to creations of the mind: inventions, literary and artistic works, and symbols, names, images, and designs used in commerce – basically anything that might be protected by patents, copyrights, trademarks, and trade secrets.
The main goals of an intellectual property clause in an expert consulting agreement are as follows:
Usually confidentiality agreements (or confidentiality clauses in a consulting agreement) are used between employers and experts when the employer may expose the expert to internal proprietary information regarding the employer’s products or business processes.. If no sensitive information is being exchanged, a confidentiality agreement may not be needed, but in general, it’s always best to err on the side of caution.
A non-compete clause is used, upon the conclusion of the expert’s employment with a company, to prevent a former employee (or former expert) to use the competitive advantage that they gained in working for their former employer for the benefit of themselves in starting a new business or for a new employer.
A retainer fee is typically an advance payment, or down payment, on an expert's hourly rate for a specific case. The expert puts the retainer in a special trust account and deducts from that account the cost of services as they accrue. During the course of employment, employers should review periodic billing statements reflecting amounts deducted from the retainer.
