Few legal issues have caused more controversy and debate in recent months than the use, or misuse, of confidentiality clauses or non-disclosure agreements (NDAs).
The #MeToo movement and scandals such as Harvey Weinstein and the Presidents Club have dragged NDAs out of the shadows and into the limelight. Legitimate fears have been raised that such tools have been used to cover up abuse, or even allow it to continue.
The role of solicitors in drafting these clauses is a vital public issue: it’s both appropriate and right that we have embraced this debate. The profession has a public legal education role to play – it’s clear there needs to be a better awareness amongst the public of what all parties need to know before signing an agreement.
The Law Society has produced accessible guidance for the public to detail their rights and dispel popular misconceptions that have crept into the public consciousness – for example, that confidentiality clauses may be prohibiting the reporting of a potentially criminal act and thus, in themselves, constitute a criminal offence.
We must also work with government to make improvements to the law where there are shortcomings. For NDAs to be lawful, they must not prohibit or restrict reporting to the police or relevant regulator – but also, they should not pressure an individual to conceal an unlawful act that has not yet happened. Nor should they stop the signatory from being able to speak to close family or friends or medical professionals about their experience. As lawyers, it is sometimes easy to assume that a matter is settled when an NDA is agreed – however for the individual, the agreement must continue to be the right settlement for them.
Finally, we must be willing to have an open and frank discussion within the legal community.
The Law Society brought together experts, legal professionals and campaigners – including Zelda Perkins, NDA whistleblower, and legal ethics professor Richard Moorhead – at an event to discuss the boundaries between the legal and other such considerations.
During the discussion, Zelda Perkins rightly reminded us that “there is disparity of power between a claimant and their employer.” An NDA which abuses such an inequity in power, particularly if the individual subsequently feels intimidated and restrained from disclosing, for instance, harassment, is not a good document. We always have a responsibility to our clients, but also to the public interest. All solicitors are committed to upholding the rule of law and the administration of justice.
Although it may be headline grabbing, to suggest that the Law Society has failed to discharge our responsibility to the public is simply not correct.
Our practice note released earlier this year exists to outline current standards. It does not attempt to make any ethical judgement of NDAs beyond the law, nor to suggest standards as they ought to be. It simply demonstrates the law as it is.
That’s because, even amongst claims of misuse, there are also situations in which confidentiality clauses are entirely appropriate and, in some instances, in the interests of the claimant and employer. As a professional body, one of our priorities is to ensure our members are aware of the existing legal and regulatory obligations when drafting NDA agreements.
The practice note was written by specialist practitioners and advisors, with input from the Solicitors Regulation Authority. Through our guidance we advise solicitors to refer to their regulatory obligations and the SRA warning notice.
The SRA welcomed our guidance. There is no disparity between our approach and that of regulators.
Alongside the practice note, we are working on all the issues raised in the current debate on NDAs in the interests of the profession and the public. We can fulfil our duty to provide guidance to our members, while advocating for policy in the public interest. To suggest otherwise is to imply a dichotomy where there is none. We remain committed to our public interest responsibility – not just here, but in all other prominent and contentious areas of law.
David Greene is deputy vice president of the Law Society of England and Wales