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Law Society pledges action over solicitors’ use of NDAs

Blacklaws: Plain English guidance for clients

The Law Society has told MPs that it is to take action over the inappropriate use of non-disclosure agreements (NDAs) by solicitors.

This will involve guidance for both solicitors and their clients.

The Bar Standards Board will also be issuing guidance later this month, it has confirmed; the Solicitors Regulation Authority (SRA) put out a warning notice [1] in March.

The activity follows a call by the House of Commons’ women and equalities committee [2] in July for legal regulators to show that lawyers will face “serious sanctions” if they sexually harass clients or colleagues or misuse NDAs to silence victims of sexual harassment.

In a letter last week to committee chair Maria Miller MP, Law Society president Christina Blacklaws said: “The report rightly expresses concern about the use of NDAs in the wake of high-profile cases such as the Presidents Club dinner.

“The Law Society is clear that solicitors are expected to adhere to the highest ethical standards at all times, and indeed the vast majority do.

“However, in light of recent instances of inappropriate use of NDAs, we are preparing a practice note for members which will highlight expected behaviour when advising clients on the use of such agreements.

“We will also be issuing plain English guidance to help those who are presented with NDAs and confidentiality clauses to understand how they work, and ensure that they are aware of their rights to make protected disclosures in certain circumstances.”

Ms Blacklaws said the guidance would supplement the SRA warning notice on solicitors’ professional obligations when advising clients on the use of NDAs.

This stressed that improper use of NDAs would be considered a breach of the code of conduct, and that solicitors were expected to ensure that the NDAs they approved did not include obviously unenforceable clauses.

A leading legal ethics expert said the SRA should have gone further [3], however.

Ms Blacklaws added: “Of course, tackling the wider problem of workplace sexual harassment will require determined action from employers to shift cultures.

“The Law Society is preparing a factsheet on workplace harassment for law firms which will outline best practice in creating a safe and inclusive working environment for all employees.”

Interested in this topic? Check out the Legal Futures Masterclass on NDAs, Harassment and Whistleblowing [4]. 27 June 2019, London.