So far Sir Philip’s Green’s solicitors have not been criticised for their behaviour in drawing up non-disclosure agreements in the case which has been so much in the news over the last week.

This contrasts with the previous high-profile case concerning non-disclosure agreements (NDAs) in an employment setting, where the solicitors for Harvey Weinstein were criticised in the House of Commons Women and Equalities Committee report on ‘Sexual harassment in the workplace’ - ‘We have been particularly concerned by the evidence we have heard about members of the legal profession facilitating the unethical use of NDAs.’

In the case of Sir Philip Green, the Court of Appeal, in granting a temporary injunction, gave helpful detail on the background to the drawing up of the NDAs and the subsequent proceedings, which throws light on the actions of the solicitors and the complainants:

  • the complainants in each case had independent legal advice in entering into the settlement agreement 
  • the agreements safeguarded the complainants’ rights to make legitimate disclosures (including reporting any criminal offences) if they chose
  • at an early stage in the proceedings, attempts were made to ascertain the attitudes of the five complainants as to whether information about their complaints should be published, even if they were not named. One complainant said that they were happy for their complaint, and the settlement, to be disclosed, provided they were not named. Two said that they supported the claimants’ application for an injunction. One said they did not support the application. 

A reading of the judgment shows that that the court believed that ‘(t)he circumstances of the present case give rise to important and difficult policy considerations’. They thought that there was sufficient likelihood for Sir Philip Green to win his arguments at a full trial for the injunction to be granted.

The right to a trial was circumvented by Lord Hain using parliamentary privilege in the House of Lords – which raises different arguments regarding the rule of law. Given that it was a temporary injunction, with the court requesting a full and speedy trial, the rule of law would doubtless demand that consideration of the use of parliamentary privilege awaits at least the outcome of both sides being able to put their case fully to an independent court, particularly in circumstances where two of the complainants support the injunction.

But my focus here is on the role of solicitors. Since the Harvey Weinstein case, and doubtless pressured by its own appearance before the House of Commons Committee, the SRA has issued a warning notice to the profession on the use of NDAs

To the extent we are able to tell from the brief summary in the court judgment, nearly all the warning boxes in the SRA notice are ticked by the above facts – for instance, the NDA did not prevent legitimate disclosures, and each side had legal advice. Where there is no box ticked, it is because the court does not tell us what happened – for example, did all the complainants receive a copy of the NDA? 

But what the SRA notice does not tell us, and maybe can never tell us, is what to do if a client wishes to behave in a way that many would consider disgraceful, but which falls short of a breach of the law and ethics. So the SRA notice says that ‘Inappropriate or disproportionate threats, including a threat of defamation proceedings where such a claim is known to be unsustainable, may well involve serious breaches of the Principles or Code’. 

The standard of knowing a defamation claim is unsustainable still permits many lesser forms of disgraceful behaviour to slip through. What is a solicitor to do if a client wants to behave badly but within the confines of the law and the solicitor’s own code of ethics? The classic response is that the solicitor carries out the client’s instructions, since otherwise clients are left without representation. Another reason is to prevent something constraining client behaviour which is neither in the law nor in recognised codes of ethics.

The use of NDAs in an employment setting raises that modern scourge of our profession: decision-makers wanting to get at our clients’ behaviour through us.

We are the gatekeepers to their secrets and future conduct. In only one case have laws so far been passed to make us tell on our clients, and that is in the area of money-laundering. For the rest, decision-makers pass guidelines, issue challenges, and name and shame us (as happened earlier this year with NDAs).

In a range of areas – business and human rights, and tax avoidance are two others – policy makers would love lawyers to influence their clients’ conduct in a way that they find socially useful. For the time being, fortunately, the burden still chiefly rests on solicitors to decide what to do in these circumstances.