Solicitors engaged in drawing up non-disclosure agreements (NDAs) on employment severance settlements have been reminded that, in any conflict of principles, the public interest in the proper administration of justice must come first. The warning appears in a practice note published today entitled Non-disclosure Agreements and Confidentiality Clauses in an Employment Law Context.
It follows last year's furore over the role of law firms in drawing up NDAs allegedly to prevent former employees speaking out about sexual harassment. In March last year the Solicitors Regulation Authority published a warning note to the profession on the issue.
The Society's practice note, aimed at 'all solicitors who draft non-disclosure agreements and confidentiality clauses in an employment law context, whether that is for their own firm or for a client', states that NDA clauses have a legitimate role in employment contracts. However it draws a distinction between 'appropriate and lawful' clauses seeking to protect trade secrets and 'situations in which confidentiality provisions are aimed at preventing disclosure of conduct or other circumstances which, for example, may have led to a dispute or to the breakdown of the relationship between an individual and the business.'
It notes that, when drafting NDAs, solicitors need to remember that, under the SRA Code of Conduct, their duty to clients is subject to a duty to the court and to the administration of justice. 'Where two or more mandatory principles come into conflict, the principle which takes precedence is the one which best serves the public interest in the circumstances, especially the public interest in the proper administration of justice.'
The note warns: 'It is unlikely to be legitimate to ask a person to sign an agreement in which they agree not to disclose an unlawful act that has not yet happened, as the chances of such an agreement being legally enforceable are slim.'
On dealing of cases involving whistleblowers, the note warns that protection under the law is a complex matter. 'Parties who may wish to blow the whistle will often need professional help to navigate this issue,' it states. It suggests that employees seeking support under the Public Interest Disclosure Act 1998 seek assistance from the whistleblowing charity Protect.