Lawyers and their clients have been guilty of “a kind of mutually assured amorality or immorality” in their approach to non-disclosure agreements (NDAs), a leading critic of the profession’s approach has said.
Clients were saying ‘I’ve taken my lawyer’s advice’ and lawyers were saying ‘I’m only taking my client’s instructions’.
Professor Richard Moorhead, head of law at Exeter law school and adviser to the House of Commons women and equalities committee on NDAs, also admitted knowing that a colleague was being sexually harassed when he was a trainee solicitor and failing to take any action.
Speaking to the Exeter Law Review in a podcast discussion, Professor Moorhead – who recently took up his post – said the direction of travel on NDAs was in favour of further regulation, but that was likely to meet with “strong resistance” from employment lawyers and their clients, who liked the ability to stifle or restrict certain kinds of comment.
In October, the government said it would introduce a requirement that employees obtain independent advice before signing NDAs, but the academic said this would have a “quite limited” impact, because what they really needed was someone to negotiate the agreement.
Cooling-off periods could help with NDAs, but only “a little”, he added.
Professor Moorhead said there could be more progress through best practice, and by focusing on “deeply problematic” issues like ‘claw-back’ deals, which could threaten people with loss of their home.
Turning to the future, he said the Solicitors Regulation Authority (SRA) was taking sexual harassment in the profession “much more seriously” and prosecuting more lawyers.
Professor Moorhead said the women and equalities committee would also “keep up the pressure”.
He went on: “It’s the kind of story that the press love. This will lead to pressure for legislative reform and some progress. Quite a lot of lawyers are thinking ‘we need to change this’.”
Addressing his young interviewers, he added: “Things are better than when I was your age and they will continue to get better.”
He stressed the importance of challenging unacceptable behaviour.
“If we see it, we’ve got to call it out,” he said. “When I was a trainee, a colleague was being sexually harassed by my boss.
“We talked about whether to do anything, and actually we decided not to.”
He went on: “I have had colleagues in academia, not here, who have had quite serious problems. It is a really difficult issue and often it is about power.”