Confidentiality & Non-Disparagement Between Partners

The partners’ meeting runs long and ends badly. By Thursday a medical assistant knows what each partner earned last year, a front-desk supervisor has heard that the practice “might be sold,” and a physician in another group has been told, at a soccer game, that the managing partner cannot be trusted with a checkbook. None of that was decided by anyone. It leaked, and leaked information sets the practice’s agenda for the next several months.

The damage compounds where the partners can least afford it. When Dr. Fontenot and Dr. Davis deadlocked over an acquisition offer in their rural two-pediatrician practice, the standoff ran 14 months, and two of the practice’s nine staff resigned citing “the atmosphere.” Nobody had disparaged anyone in writing. The staff simply worked inside a conflict the partners never contained, and they left. Staff turnover is the tax a practice pays on unmanaged partner conflict, and it is collected long before any lawsuit is filed.

Confidentiality provisions cover two distinct things, and agreements that address only the first are the ones that leak. The first is the practice’s confidential information: financial statements and partner compensation, payer contract terms and negotiated rates—many of which carry their own confidentiality obligations running to the payer—vendor pricing, strategic plans, personnel matters, and patient information governed by HIPAA regardless of anything the agreement says. The second is the partnership’s own deliberation: what was said in the room, how each partner voted, what was considered and rejected. Both need naming. The second is the one that walks out on its own.

Data governance is the mechanical half of the same obligation, and it is where confidentiality either holds or becomes decorative. Decide who may extract data from the billing system and the EHR, in what form, and with whose approval. Decide whether partners may keep personal copies of financial packages, board materials, and payer contracts, or whether copies live in a practice-controlled repository that partners access rather than possess. Decide what a departing partner returns, on what timetable, and what counts as returned when the material sits in a personal email archive. And state that the obligation survives departure, because the confidential information most likely to travel is the information carried out by someone who no longer has a reason to protect it.

The operating rule is simple to state and hard to keep: partners debate in the room and speak with one voice outside it. Disagreement is recorded in the minutes, not in the break room, and a partner who lost a vote is free to say she disagreed and is not free to relitigate it with staff. Two supports make the rule livable. Give dissent a legitimate channel—a recorded objection, a scheduled revisit, the escalation ladder of article 18—because a partnership that offers no way to be heard has guaranteed the informal one. And correct one common misunderstanding early: partners frequently assume their own conversations are privileged. Privilege attaches to communications with counsel, and even then the practice, rather than any individual partner, usually holds it. Counsel should explain that boundary before anyone relies on it, particularly in the moments when partners begin taking sides.

Non-disparagement should be mutual and should survive departure, covering statements about the practice, its partners, its staff, and its governance. It should also be drafted with its carve-outs on the page rather than assumed, because the clause without them is the clause most likely to be attacked: truthful statements to licensing boards, regulators, and law enforcement; testimony and responses to legal process; participation in peer review; internal complaints and any protected reporting. Enforceability varies by jurisdiction and by context, and a provision that reads as though it bars someone from reporting a concern to a government agency invites exactly the challenge no practice wants to defend. Counsel drafts the language. The partners decide the scope.

Public conduct is the modern half of the same provision. Partners are bound by the practice’s social media standards, and by more than the staff are, because a partner’s post is read as the practice’s position whether or not the account says so. Cover the obvious and the non-obvious together: no clinical detail, no photographs, and no “a patient today” anecdotes; no response to an online review that confirms the reviewer is a patient, which is among the most common ways a well-meaning practice creates a privacy problem out of a customer-service problem; disclosure of any paid relationship or endorsement; and a media-contact protocol naming one spokesperson so a reporter’s call does not become four different practices’ positions. The practice’s own accounts remain practice property under the assignment provisions of article 28, credentials included.

Then attach a consequence, because a provision without one is a preference. The ladder that works escalates: a written notice and cure period for a first lapse; loss of a leadership stipend or committee seat; suspension or removal from the managing partner role; a defined financial consequence; and, for serious or repeated breach, an effect on the departure tier that governs a partner’s covenants and payout terms. Financial consequences carry a doctrinal condition worth stating plainly—liquidated damages must be a reasonable estimate of a harm that is hard to measure, and an amount chosen to punish invites a court to strike it. And the enforcement has to be even. A practice that disciplines a receptionist’s Facebook post but not a partner’s has documented its own unseriousness, and it has done so in a file someone will read aloud someday.

Red flags. No confidentiality provision, so financial deliberations circulate among staff within days. No non-disparagement clause, and a partner posting publicly about the practice during a dispute. Social media standards that exist only in the employee handbook and bind nobody with equity. Internal partnership communications forwarded to non-partner employees. Carve-outs missing, so the clause overreaches into reporting and becomes unenforceable in the one moment it is invoked. And no defined consequence—which converts the entire section into a statement of hope.

An agreement that governs everything the partners may do with the money and says nothing about what they may say about each other is half a document. The other half is the part the staff can hear.