| Pages in topic: < [1 2] | End client jumping ship(?) Thread poster: Laurel Clausen
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Samuel Murray 
Netherlands
Local time: 12:24
Member (2006)
English to Afrikaans
+ ...
Laurel Clausen wrote:
I'm looking for some advice.
I'm of two minds here. On the one hand there is the morally right thing to do, and on the other hand there is the commercially right thing to do. The thing about the commercially right thing is that the situation isn't always simple enough to apply a broad moral principle to it. In your case, your problem is that you lack sufficient information to make an easy decision, and so you have to either play it safe (take the moral road) or take a risk (take the commercial road).
The morally right thing
In the absence of NDAs and in the absence of confidentiality in general (i.e. if you're not really a professional translator but a personal one or an academic one or a volunteer one), my approach would have been to tell agency B that you already do this work for agency A, and that you will ask them if they object to you doing the same work for agency B, and then to tell agency A about this and ask them if they have any objection to it. My loyalty would be with agency A because they are my usual contact for this end-client.
In the absence of NDAs but if we take normal professional translator confidentiality into account, I would simply tell agency B that I can't take the work, due to a "conflict of interest". Alternatively, I would stall them and quickly try to ask agency A if they know what the situation is (but see the next paragraph).
Remember, your loyalty duty is to agency A. For this reason you can't tell agency B that you are already doing this work for agency A. However, you do have a confidentiality duty towards agency B (but not a loyalty duty). For this reason you can't tell agency A who agency B is.
The commercially right thing
In real life we deal with agencies and sub-agencies and super-agencies etc, and rarely with actual end-clients except through many layers of authority. You don't know whether your agency's client is the actual end-client. Even if the work is practically the same, you can't be certain that they have the same origin (as in: paying origin).
Most agencies have NDAs that prevent client stealing or similar activities. So, to make matters simple for myself, I use the principle of "client's client" when it comes to agency work:
In other words, if Company X gives the work to agency A, who then outsources to agency B, who then hires me, then my client's client is agency A, and not Company X, and I have nothing to do with Company X. And if Company X gives work to agency D, then I'm free to work for agency D. But if agency A outsources to agency D (in addition to agency B), then my loyalty is with agency B and I can't work for agency D, because agency B's client is my end-client.
For this reason, whenever the type of situation occurs that you mention, I tell agency B that there may be a conflict of interest (i.e. I stall them without giving too much information), and I ask that they tell me who their direct client is (so that I can determine if there truly is a conflict of interest). I then tell agency A that I've been contacted by another agency, and I assure them that my loyalty is with them, but that I need to know who their direct client is, to determine if there truly is a conflict of interest. If in such a situation an agency refuses to tell me who their client is, then that agency itself becomes my end-client, and I have nothing to do with their client.
[So, to recap, I do tell agency A that there is another agency (but not who it is), but I do not tell agency B that there is another agency (unless it is or becomes unavoidable to do so). I simply say "conflict of interest" and I ask both agencies to reveal to me who their direct client is.]
If both agencies refuse to tell me who their direct clients are, or if agency A refuses to tell me who their direct client is, then technically I'm free to work for agency B as well -- although it would be smart to quote a higher rate for them, or to tread cautiously if I'm concerned that by bidding with agency B they might both lose the contract to agency M, who didn't contact me.
If the agencies themselves become my end-clients, my loyalty lies firstly with the agency who first gave me the work, and secondly with the agency who pays me most promptly or who gives me the most other work... but it is difficult to generalise about it.
Some quick replies to your other questions:
Due to confidentiality issues, I obviously cannot go and tell Agency A that they appear to have lost this client.
No, and this is indeed a paradox -- your are (or must be) loyal to agency A and you really want to tell them about this thing that would affect them commercially, but you also have a professional duty of confidentiality towards agency B (even if they are merely a potential client).
It is also possible that agency A will regard your respect for agency B's confidentiality as a vote of no confidence or as a measure of disloyalty towards them, so you have to be circumspect about it nonetheless.
At the same time, be careful about your presuppositions. You have just assumed that agency A have appeared to have lost the client, but in reality there is no indication of that at all. There can be any number of legitimate reasons why the end-client had given the work to agency B as well. For example, perhaps there was a communication error at the end-client and two departments of the end-client ended up giving the material to translation agencies. Or, perhaps the end-client didn't get a quick enough response from agency A, and then asked for quotes from other agencies, but in the mean time agency A got back to them, and so the work goes to agency A, even though agency B is using this opportunity to get quotes anyway, for perhaps they can manage to outbid the end-client's regular agency. Or it could even be that there are two end-clients (the actual end-client and a rival company who wants the same stuff translated).
If the same work arrives at your desk via more than one channel, then you should not speculate about it. Your speculation might do more damage than good.
At the same time, I have to wonder whether the client is jumping ship because of something to do with either of the agencies or something to do with my own work...
This is a legitimate concern, but there is no way that you can find out. It may be that the end-client is perfectly happy with your work, but that relations between them and agency A have soured, to the point that they're rather use agency B and take a risk on a new translator. Or it could simply be that the end-client's boss wants to cut costs and has therefore ordered the work to be re-advertised for additional tenders or quotes, even though the end-client is perfectly happy with your work and with the value for money that agency A gives them.
You simply can't afford to speculate, in my opinion. Anything might have happened, and it may be temporary, or it might be more permanent, and you simply don't know, and it is foolish to guess. Your action should not be based on such speculation.
[Edited at 2013-04-03 09:14 GMT]
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I wouldn't say anything to either. It's not your responsibility. Your job is to translate and to manage your relationship with your clients. The relationship between the agencies you work with and their clients is literally none of your business (not meant harshly).
| | | | | Is the NCC clause valid in a free market? | Apr 3, 2013 |
Michael Wetzel wrote:
However, your contract almost certainly also includes a non-compete clause (that's not the right term, I mean something more limited) that forbids you from working for the clients of Agency A either directly or through the mediation of another agency.
In that case you would be bound by contract to tell Agency B that you can't take on the job because of a pre-existing NCC and not give any further information (to avoid violating your NDA).
I did try to get advice on this in connection with the clients of an agency that went bankrupt, but did not receive any conclusive answers from the free advisory service I consulted.
The agency was my biggest client for some years before its demise, and at that stage I disliked the one that had taken over the client portfolio, but I had worked for them...
I had NDAs with both, although the clause about not approaching clients directly had lapsed with the surviving agency - I had not worked for them for over two years.
However, end clients began turning up through other agencies - the surviving agency had their names and details, but the end client is only bound to a particular agency by its current contract.
_____________________
[In this case, they were probably not bound at all - the contract was with the agency that had dropped out of the market, and bankruptcy of one of the parties = end of contract in many cases like that.
The end clients had no direct contract with the agency that had acquired the portfolio - and ran a somewhat different operation. To be fair, they have now changed their style a lot, and I like their new image.]
_____________________
There can't be many languages where the market is big enough for translators to turn down jobs for major end clients just because the clients have previously worked with different agencies. Over time, we would end up with serious limitations on who we were allowed to work for.
Some of these clauses are time-limited, but come on. You cannot be expected to check every NDA and your archives every time you are offered a job. At the early stages of negotiations you may not know who the end client is.
If an agency begins to bind translators beyond the normal non-disclosure of confidential material etc. and dictate who they may or may not work for, then they ought to provide some compensation for loss of business, and no way is that going to happen.
They are also limiting the clients' choice of who they want to deal with on the market, and I don't think that is enforcible.
I would never dream of approaching my clients' end clients, but if they approach me, I would not feel any automatic obligation to turn them down. I would do so, if I knew there had been issues, but not otherwise.
[Edited at 2013-04-03 08:28 GMT]
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Samuel Murray wrote:
The morally right thing
In the absence of NDAs and in the absence of confidentiality in general (i.e. if you're not really a professional translator but a personal one or an academic one or a volunteer one), my approach would have been to tell agency B that you already do this work for agency A, and that you will ask them if they object to you doing the same work for agency B, and then to tell agency A about this and ask them if they have any objection to it. My loyalty would be with agency A because they are my usual contact for this end-client.
Saying that disclosure of information about your customers and prospects to third parties (be them your customers or not) is a "morally right thing" gives me the shivers. To me, the only morally right thing to do, and also key to our profession, is to deliver a professional service and high-quality translations and to sustain the highest standards of confidentiality.
Protecting confidentiality is also one big component of the loyalty due to every customer, and if one day your agency customer happens to learn (for reasons other than your disclosure) that you are working for one of their former end customers via a different agency, they will appreciate the fact that you keep all your business relationships and work fully confidential.
We are not discussing a moral situation, as if the safety of a person was at stake!
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| the difference lies in who is doing the approaching | Apr 3, 2013 |
Christine Andersen wrote:
I would never dream of approaching my clients' end clients, but if they approach me, I would not feel any automatic obligation to turn them down. I would do so, if I knew there had been issues, but not otherwise.
[Edited at 2013-04-03 08:28 GMT]
First of all, your client is the one who pays you. Therefore, if a company you have translated for before through an agency goes to another agency and that agency approaches you to do the work, it is the agency approaching you (and therefore it is the agency you have a business relationship with) and not the company and therefore the Non Solicitation Clause doesn't count. This counts even if you were to have approached the agency, since the agency is not the client of the other agency.
Equally NSCs only prevent you from approaching clients direct, they don't stop you from working with them if they approach you.
I was told by one employer for which I had to sign an NSC that it wouldn't stand up in court. It stated that I couldn't work in the same industry for a year after leaving the company which I found a bit extreme. The fact is that this sort of NSC infringes the following human right: •(1) Everyone has the right to work, to free choice of employment, to just and favourable conditions of work and to protection against unemployment.
You have the right to freely work with the clients of your choosing and to be remunerated for that work. What NSCs try to do is to induce goodwill and prevent people from acting in bad faith.
| | | | Samuel Murray
Netherlands
Local time: 12:24
Member (2006)
English to Afrikaans
+ ...
| Professional versus non-professional (rather theoretical, if you ask me) | Apr 3, 2013 |
Tomás Cano Binder, CT wrote: Samuel Murray wrote:
In the absence of NDAs and in the absence of confidentiality in general (i.e. if you're not really a professional translator but a personal one or an academic one or a volunteer one), my approach would have been to tell agency B that you already do this work for agency A, and that you will ask them if they object to you doing the same work for agency B, and then to tell agency A about this and ask them if they have any objection to it. Saying that disclosure of information about your customers and prospects to third parties (be them your customers or not) is a "morally right thing" gives me the shivers. To me, the only morally right thing to do, and also key to our profession, is to deliver a professional service and high-quality translations and to sustain the highest standards of confidentiality.
Yes, but did you see the text that I had underlined here?
The professional translator has a loyalty duty to his profession (and therefore to his clients). A non-professional translator may be loyal to society and his neighbours. The professional translator protects his client, practically at all cost, even to the detriment of others. The hobbyist translator tries to do the thing that is best for everyone.
But this is a theoretical argument, because we are all professional translators, and our duty is not to our neighbours, and not even to society, but to the single party that pays us. We are free lance[r]s, i.e. hired guns. When we act professionally, we must acknowledge that some of what we do may be morally reprehensible, and we should not deceive ourselves into thinking that what we do is "best for everyone".
If one day your agency customer happens to learn ... that you are working for one of their former end-customers via a different agency, they will appreciate the fact that you keep all your business relationships and work fully confidential.
No, I think that the agency's reaction will depend on the agency -- they might say (as you claim) "we are so glad that our translator has acted so professionally by his non-disclosure", or they might say "we can't trust this translator because he failed to provide full disclosure, i.e. he was not honest with us about this other agency" (even if you and I both know that non-full disclosure is actually a professional courtesy).
Tomás Cano Binder, CT wrote elsewhere:
And I say for your own good because Agency A would at first appreciate your loyalty... but would drop you for good 3 minutes later because of the risk that you disclosed hints or details about your relationship with them to a third party. I would, and anyone in their sane mind would. "Rome does not pay traitors!"
That is unfortunately true, and I can understand your approach of total secrecy. However, I prefer my approach of non-competition on the basis of "client's client". If you try to keep everything a secret, you might get found out. If you keep everything a secret except for the fact that you have a secret, it may harm you less if your secret comes out.
One problem I often deal with when it comes to jobs that arrive at my desk via multiple agencies is that I'm sometimes asked to be the editor for a translation that I have done myself. Then it is a discomfort to the agency who accepted the editing job on the assumption that "their star translator" (i.e. me) would be able to do it, only to discover that they had accepted a job from the end-client that they can't deliver on.
[Edited at 2013-04-03 09:19 GMT]
| | | | | also out of my depth | Apr 3, 2013 |
Hello Christine, Hello Marie-Helene,
I pointed out that an NCC is not the right term, because this can obviously only be applied to departing employees and would make no sense in the case of work with freelancers.
If the contract only contains a non-solicitation clause then Marie-Helene's presentation of the facts is certainly correct.
However, I have signed a contract with an agency that contains the type of agreement that I described (I am not allowed to ... See more Hello Christine, Hello Marie-Helene,
I pointed out that an NCC is not the right term, because this can obviously only be applied to departing employees and would make no sense in the case of work with freelancers.
If the contract only contains a non-solicitation clause then Marie-Helene's presentation of the facts is certainly correct.
However, I have signed a contract with an agency that contains the type of agreement that I described (I am not allowed to directly or indirectly work for their end-clients for a period of two years) and I think that this is usual - at least in some countries (it is a German agency).
I agree with Christine that all of this seems dubious in terms of its being legally binding, but I would still suggest taking a look at the contract to see what it actually says and not exclusively concentrating on the issue of an NDA.
After the situation with the contact is clear, then you can decide what makes sense in terms of running your business.
Sincerely,
Michael ▲ Collapse
| | | | Samuel Murray
Netherlands
Local time: 12:24
Member (2006)
English to Afrikaans
+ ...
| If not legally binding, then *do not sign* | Apr 3, 2013 |
Michael Wetzel wrote:
I agree with Christine that all of this seems dubious in terms of its being legally binding...
If a contract contains something that you know or suspect is not legally binding, then you should not sign it. No translator should sign a contract with the thought "oh, it is safe for me to 'agree' to these unreasonable demands, because they can't be enforced anyway". Always assume that what you sign is legally binding.
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Phil Hand
China
Local time: 18:24
Chinese to English
| I reckon my formulation is OK | Apr 3, 2013 |
Tomás Cano Binder, CT wrote: Phil Hand wrote:
"I've translated successfully for this end client in the past." I don't think so. In my opinion, the right expression would be: "I've translated successfully about this exact industry/topic/kind of material in the past."
The fact that I translate about computers is one thing; the fact that I've translated for Microsoft is a different thing. It's commercially salient information, and if my contracts don't specifically forbid it, I would use it (where necessary).
I wouldn't say I've translated for End Client X through Agency Y; I wouldn't put any timing indicators on it. Obviously I couldn't say anything about the content translated. But the information about who the client is comes as a separate datum, not part of the job itself.
I guess what I'm saying is, in the absence of explicit NDA obligations, the concept of basic non-disclosure which I apply to all my work wouldn't necessarily include "who". I'd absolutely avoid any mention of what (content) and how (through which agency); I'd mostly avoid when (if there's any chance it might give something away); but under certain circumstances, the who could be OK.
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Hi Samuel,
I agree completely, although my post could easily be taken to suggest the opposite. In my case, I consider the clause perfectly reasonable and will abide by it, regardless of whether or not I might be able to successfully take them to court about it.
It is the only agency that I ever worked for regularly (and I probably had less than five one-off encounters with other agencies) and I consider it perfectly reasonable that 15-20 institutions and a handful of ar... See more Hi Samuel,
I agree completely, although my post could easily be taken to suggest the opposite. In my case, I consider the clause perfectly reasonable and will abide by it, regardless of whether or not I might be able to successfully take them to court about it.
It is the only agency that I ever worked for regularly (and I probably had less than five one-off encounters with other agencies) and I consider it perfectly reasonable that 15-20 institutions and a handful of artists are off-limits to me for two years. That's approximately 0% of the market for German > English translations in the field of art. I asked for and they sent me a list of protected clients; I questioned a few and we reached a compromise.
However, this situation is, of course, much different from that of the majority of ProZ readers and your advice is very important, particularly in terms of maintaining professionalism.
Michael ▲ Collapse
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