Contentious conveyancing and broader action on NDAs: your letters to the editor
Cut the contentious conveyancing
I have noticed a tendency – some solicitors even boast about it – of emails to my firm being copied to the estate agent, mortgage broker and the sender’s client where less than temperate language is used, and assertions made of poor practice in relation to the progress of a conveyancing matter.
You will know the sort of thing: an email sent at 9.05am stating: ‘We are dismayed to note that we have had no response to our email sent yesterday at 4.55pm. We would have hoped that you would deal with this matter with the urgency and professionalism it deserves. Take your client’s instructions and revert today.’
No please, thank you or by your leave.
Sometimes sent by a paralegal working in a conveyancing factory. Sometimes by a purportedly top-level firm partner.
The purpose, of course, is to ‘big it up’ in front of the interested parties and one’s own client. ‘Put the pressure on. Don’t let them have time to change their minds.’
It is a form of contentious conveyancing that some estate agents, builders and brokers seem to like, because it saves them having to employ progression executives and fits in with their ‘we must drive this or the transaction will fail’ mentality.
I believe that using these methods breaches our Code of Conduct. It is unprofessional and distasteful. It may also breach the Data Protection Act 2018.
On another issue, one seller’s solicitor recently enlisted the help of our client’s (the buyer’s) mortgage broker to contact us to tell us what we ought to do and how we ought to do it, because the seller would pull out if we did not exchange when they demanded. The mortgage broker was put out when she was told that, as this was none of her business and we were in communication with our client, we would not give her an update and we invited her to stop communicating with us and cc’ing in every Tom, Dick and Harry into her flurry of emails to the office demanding we speak to her. She even told us, as a professional, she understood the law. She did not seem to know about client confidentiality or DPA 2019.
The best conveyancers control their own client’s expectations and conduct the matter as a negotiation rather than as some form of litigation. The best conveyancers address issues which relate to title and deal with those issues (that is, the fundamentals of the job) rather than acting like some hard-nut enforcer for the estate agent and/or builder and/or mortgage broker.
If only we had a regulator that worried about such things. Instead, I shall report whatever breaches of DPA 2019 come into my office to the ICO. They are likely to take it very seriously.
Arthur Michael Robinson
Director and solicitor, Emmersons Solicitors, Newcastle upon Tyne
Broader action needed on NDAs
The role of confidentiality clauses in protecting the reputation of employers is obvious. However, NDAs also confer several benefits on employees – not least that the promise of confidentiality serves as a powerful bargaining tool for employees, who can often negotiate a generous settlement in return for their silence.
Despite these benefits, following several scandals during which it was revealed that NDAs were being used to cover up allegedly serious cases of sexual misconduct, their use has come under intense scrutiny.
The government recently published its response to the consultation on the use of confidentiality clauses in workplace harassment or discrimination cases.
In the employment context, the inclusion of confidentiality clauses within settlement agreements has become common practice. In cases where an employee has made allegations of harassment or discrimination, such clauses would ordinarily prevent the employee from disclosing details of those complaints to third parties.
One concern raised was that some employers have allegedly been attempting to use NDAs to try and prevent employees from reporting allegations of sexual misconduct to the police. While in reality the prospect of any court enforcing such a provision is slim, that an employee may believe that they are not permitted to report legitimate concerns to the police is clearly of concern. To try and address this, the government has proposed introducing legislation which would make it unlawful to include a term in an NDA that would prevent an employee from making a disclosure to the police.
A related concern is that the wording of NDAs can make it difficult for employees to fully understand what they are and are not permitted to discuss with others, following signature of an agreement. In response, the government is proposing to require that the limitations of any NDA (such as the fact that they cannot operate to prevent a disclosure to the police) are clearly set out within the agreement, and that employees must receive specific advice on the terms of any confidentiality provisions before entering into a settlement agreement.
The Solicitors Regulation Authority suggests there should be a cooling-off period for NDAs. This is a sensible proposal which, if implemented, should help to reduce the likelihood of departing employees suggesting that their employer put them under undue pressure to sign an NDA.
This will benefit employers, who understandably want to ensure that employees do not later seek to challenge the validity of a fairly negotiated NDA, and employees, who will benefit from an extra period in which to consider the merits of agreeing to keep certain matters confidential in return for a compensation payment.
These are all sensible measures that should go some way to helping prevent the misuse of NDAs in the workplace. But some see this as a missed opportunity for the government to take broader steps to address the prevalence of discrimination and harassment in the workplace, such as introducing an explicit duty on employers to prevent harassment.
Winckworth Sherwood, London