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Confidentiality Agreement with former employer

San Bernardino, CA |

I was dismissed from my position as a commissioned executive recruiter by my employer on 7/26/13. I would like to contact the clients I brought to my former employer to solicit them for business. What is my liability to a law suit if I send my former employer a certified (receipt requested) letter stating that I rescind my agreement to their Confidentiality Agreement effective immediately and then solicit the clients for recruiting business with my new company?

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Attorney answers 5

Best Answer

Don't do that.

You can't retroactively rescind an agreement that you entered into, and for which you took the benefit (i.e., your employment).

Either the agreement is legal or it isn't. If the agreement protects trade secrets, confidential, or proprietary information, then it is legal and enforceable. If it protects information other than that, it is illegal and unenforceable. Your trying to get out of an agreement that you entered into has no effect at all on whether the agreement is legal or illegal.

Whether information constitutes a trade secret, confidential or proprietary information depends heavily on the facts. No one on Avvo can tell you, based on the limited information we can get here, whether the agreement is legal and enforceable or not. It would take an extended conversation, which you can't have and are well-advised not to have on a public website like Avvo.

I hope this information is helpful to you.

Craig T. Byrnes

Disclaimer: Please be aware that I am not offering legal advice, nor forming an attorney-client relationship with you. I am not representing you, nor doing anything to protect your legal rights. If you believe that you have suffered a legal wrong, take action before any statute or limitations expires, or your right to do so may be lost forever. Good luck in your legal matter.


Assuming their Confidentiality Agreement is valid (consult with an attorney about that), you will likely open yourself up to a lawsuit. Rescission is basically not an option open to you at this point. Rescission generally requires restitution -- i.e., your return of the goods/materials you received via the contract. That is impossible at this point because you can't "unlearn" the info and, in fact, you want to take advantage of that info. If one could simply "rescind" these agreements as you've set forth, they'd be worthless.

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If you brought these clients with you, it is doubtful that they can prevent you from contacting your former clients. However, you really need to see an employment attorney to review the agreement with you. You cannot unilaterally rescind the agreement unless there is fraud or some other special circumstance. However, you might want to write a letter stating that your former clients are not covered by your agreement with them. Or you might not want to write them at all and just contact your former clients as you want to. Have an attorney look over your agreement and advise you what your options are.

Christine C McCall

Christine C McCall


I think that there is a misunderstanding underlying this response. This response seems to assume that the asker brought clients from a former business with him when he accepted employment for which the confidentiality agreement was required. I read the asker's facts as describing that he wants now to contact persons whom he recruited in the course of performing his duties for the employer with whom me made the confidentiality contract. This seems to be a critical and outcome-determinative difference in the factual premises of the responders here.


Do not go about it that way. You will get sued.

It is critical that you do this the right way. Even if you do, a former employer will often use to cause you to incur crippling attorney fees at a time when you need cash flow to start your business.

Be smart and hire an attorney to walk you through this part. It is the prudent thing to do.

Good luck to you.

This answer should not be construed to create any attorney-client relationship. Such a relationship can be formed only through the mutual execution of an attorney-client agreement. The answer given is based on the extremely limited facts provided and the proper course of action might change significantly with the introduction of other facts. All who read this answer should not rely on the answer to govern their conduct. Please seek the advice of competent counsel after disclosing all facts to that attorney. This answer is intended for California residents only. The answering party is only licensed to practice in the State of California.


I agree with the answers above that you should not do that and likely do not have grounds to rescind the Confidentiality Agreement.

Independent of the confidentiality agreement, the names, address, and contact persons of the customers of your former employer are likely their trade secret under Business and Professions Code section 16607. The law provides that you may contact the trade secret customers to make an announcement of your new employment, but nothing more, and that you may not solicit the trade secret customers' business.

I recommend you consult an attorney or consult your new employer's attorney before taking any action.

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