Why I don't sign NDAs to read opinion letters

“Hi,

I appreciate the offer, but I don't sign NDAs to read opinion letters.

The tax code isn't proprietary. Neither is ERISA. A well-supported opinion is written to be relied on, which means it's written to be read by clients, advisors, auditors, and if it ever comes to it, the IRS and DOL.

If the letter stands on its own, send it over and I'll give it a fair read. If secrecy is the price of admission, that tells me what I need to know.

Best,

Chris"

Today a vendor asked me to sign an NDA before I could review their tax opinion. I passed.

That's the email I sent, feel free to use it yourself.

The Internal Revenue Code, ERISA, and the Treasury regs are public. An opinion interpreting public law isn't a trade secret.

Opinion letters exist to be relied on, which means the people who will test them have to be able to read them. That's your client, your E&O or fiduciary liability carrier, the plan's auditor, and if it comes to it, the IRS or DOL.

I'm happy to sign an NDA covering pricing, or proprietary technology. The legal analysis is a different matter.

Good faith legal analysis of broadly available benefits programs operating under federal law doesn’t need an NDA.