February 2023

Nearly all NDAs and confidentiality provisions exclude from the confidentiality and restricted use obligations information that is or becomes “public,” “publicly available,” or “publicly known.”

Contract drafting guru Ken Adams has given his imprimatur to the “is or becomes public” formulation. His preferred version of this exclusion is any information that is “already public when the Disclosing Party discloses it to the Recipient or becomes public (other than as a result of breach of this agreement by the Recipient) after the Disclosing Party discloses it to the Recipient.”

But is the “public” characterization the appropriate standard when it comes to the protection of trade secrets?

A consortium of international human rights organizations, bar associations, and advocacy groups has released its annual report coinciding with the International Day of the Endangered Lawyer, January 24. This year's focus is on Afghanistan. From the introduction of this year's report:

Since 2010, the International Day of the Endangered Lawyer has been observed on 24 January in cities, countries, and continents around the globe.

This date was chosen as the annual International Day of the Endangered Lawyer because on 24 January 1977, four lawyers and a co-worker were murdered at their address at Calle Atocha 55 in Madrid, an event that came to be known as the Massacre of Atocha.

Each year, the International Day is organised by the Coalition for the Endangered Lawyer, a network of national and international organisations and bar associations.