Your agency invests massive amounts of time, energy and money pursuing its new business goals.

And it’s exciting when the efforts turn into a new opportunity, project or long-tem lucrative contract.

So let’s not spoil that good energy by missing a legal step or making a legal mistake that will jeopardize the agency’s efforts, create unsustainable risk or cost lost profit, OK?

Over the hundreds of agency new business scenarios we’ve helped counsel our clients through, these are the mistakes we see, on repeat, in agency new business. Along with some suggested fixes you can implement before your next big new business opportunity.

Mistake #1: Failing to Protect the Agency’s IP in Pitches and Proposals

It takes a lot of creativity and ideation to attract new business.

If your agency regularly pitches new business or responds to proposal requests from prospects, you are pouring your best creative concepts, strategies, and proprietary knowledge into your attempts to attract prospective clients.

Do you want to give all of that away? If you’ve decided that it’s a worthwhile investment in the potential opportunity to do so, I support you – it’s an intentional business strategy. If you haven’t thought hard about it, or it isn’t your intention read on.

How to Fix It:

Make it your default to implement a mutual Non-Disclosure Agreement (NDA) with the prospect before sharing any creative or strategic materials. A mutual NDA demonstrates that both parties are committed to confidentiality. It also secures your claims to the work and ideas you share with the prospect.

Side Note: If you’ve agreed that the prospect will own the ideas or concepts you share in a pitch or proposal, make sure the terms are clear, specific, and any compensation stated.

Worried about putting this forward to a potential client? Don’t be. Presented respectfully and in the spirit of mutuality, brands are very accustomed to the requests (in fact, much the time they’re making the request for the NDA first, although their version usually isn’t mutual).

If your agency is uncomfortable requiring the mutual NDA, there are two additional measures it can take to “stake its claim” to the IP it shares in a new business conversation:

• Add an IP ownership ownership clause directly into your proposal or pitch documentation. This clause should that any IP shared with the prospect remains the sole property of your agency unless a formal agreement is signed and the agency is compensated.
• Use a copyright notice (e.g., © 2025 Your Agency Name) on any deliverables included in your pitch. Remember that copyright protects only physical or electronic assets – it does not cover ideas shared verbally with the prospect.

Mistake #2: Accepting Client Contracts Without Proper Legal Review

Agencies eager to close deals often sign client-drafted contracts without a full review or negotiation. This can lead to highly unfavorable terms, including relinquishing rights, delayed payments, and excessive liabilities.

How to Fix It:

Always conduct a thorough legal review of the client’s contract before signing. If possible, have an attorney who understands agency operations assess the terms. Pay special attention to:

• IP clauses that transfer ownership of deliverables before payment is made.
• Payment terms that delay billing or tie payment to client “approval” of the invoice.
• Exclusivity clauses that limit your ability to work with other clients in a vertical or region.
• Approval processes that are missing, undefined, or put all risk on the agency.
• Liability clauses that make the agency responsible for client delays, misinformation, or failure to provide assets.

Where feasible, seek to lead with your agency’s Master Services Agreement (MSA) in place of the client’s contract. And always have your agency’s own MSA as a benchmark even if you frequently sign the client’s document.

A major assumption we see many agencies make is that they have no leverage to negotiate terms with a prospective client. Or that a big brand will never sign an agency-provided contract. It’s not true. You may have less leverage in some situations than in others, but you should always be prepared with an adequate legal review to use the leverage that you do have.

Mistake #3: Creating New Legal Documents for Every Client Engagement

A major reason many agencies avoid or short-circuit a full legal review of client contracts and related documents is the perceived extra time and investment of legal fees it takes.

You’re in a hurry to get the work started and get the retainer flowing.

One major reason for this? Many agencies lack a standardized approach to legal documents, treating each client engagement as a one-off transaction. This creates inefficiencies and opens the door to inconsistent language, errors, and legal exposure. It also makes the process more expensive, and slower.

How to Fix It:

Standardize your legal documentation process. Every agency should maintain a legal document library with vetted, customizable templates, including:

• A Mutual NDA that can be used across different engagements.
• A Master Services Agreement (MSA) for long-term, complex, or high-value clients.
• A Short-form Terms & Conditions document for smaller, one-time projects.
• Templates for Proposals, SOWs (Statements of Work), Change Orders, and Client Approval Forms.

In addition to creating these core documents, assign central ownership of the legal process within your agency. Designate one person or team to manage the use and version control of legal forms. No one should send a contract or sign one without going through the designated point of contact or review process.

And, again: if you must use the client’s contract, compare and benchmark it against your agency’s standard legal templates. This helps you identify gaps in liability protection, IP rights, and billing terms before you’re legally bound to them.

Mistake #4: Giving Away Too Much IP—Or Giving It Away Too Soon

Agencies frequently transfer ownership of creative assets too early in the relationship—sometimes even before payment is made. Worse, many fail to assert rights over unused or rejected ideas, leading to lost opportunities for reuse or repurposing.

How to Fix It:

Use a clear rule in all contracts and proposals: no IP transfer until payment is made in full. Your contracts should specify that final deliverables are not the client’s property until all associated invoices are paid.

Equally important is identifying what the agency retains:

• Unexecuted or rejected ideas/concepts: These should remain your property and be eligible for reuse in future pitches or campaigns.
• Pre-existing intellectual property: This includes proprietary frameworks, processes, templates, tools, or software your agency created prior to the client engagement.
• Portfolio rights: Reserve the right to showcase completed work in your agency’s marketing, website, or case studies—even if the client owns the final product.

Educate your clients about these boundaries so expectations are set from the start.

Mistake #5: Using Contracts With Weak Payment Terms and Inadequate Liability Protection

Agencies often overlook crucial contract clauses related to payment enforcement and liability limitation. This opens the door to late payments, disputes, or financial exposure far exceeding the scope of the work.

How to Fix It:

Your contracts should include strong, enforceable payment provisions:

• Define due dates clearly (e.g., “Net 30 from invoice date”).
• Include interest clauses for late payments (note: interest must be in writing to be enforceable).
• Specify late fees, rush fees, or project cancellation fees where applicable.
• Include a clause that entitles your agency to recover collection costs and attorney fees if legal action is necessary to collect unpaid invoices.

On the liability side, limit your agency’s exposure with the following:

• Client approval language: Make it clear that the client is responsible for reviewing and approving final work.
• Disclaimers for client-supplied content: State that the agency is not liable for legal issues arising from materials provided by the client.
• Require the client to conduct legal reviews for trademark usage, ad claims, and regulatory compliance.
• Cap your liability to a defined amount—ideally no more than the total fees paid to the agency under the agreement.
• If insurance coverage is involved, limit it to reasonable levels based on the size and scope of the engagement.

The goal here is to assume no more responsibility or liability than is fair to your agency, or that (worse) is uncovered by your agency’s insurance policies.

Use this as your checklist during your next agency new business discussion to start the agency-client relationship off on solid legal footing.