Kennedy: BSB Handbook not an adequate substitute for proper NDA guidance
More than half of the reports received by the Solicitors Regulation Authority (SRA) about the use of non-disclosure agreements (NDAs) in discrimination or harassment cases relate to claims made within law firms, it has emerged.
The SRA said the other six reports of the 13 it has received since late 2017 involved settlements being negotiated by a solicitor on behalf of their clients.
The regulator provided the information to the House of Commons women and equalities committee following the oral evidence session earlier this month, at which chief executive Paul Phillip revealed that a solicitor at City firm Allen & Overy involved in drafting an NDA involving film producer Harvey Weinstein has been referred to the Solicitors Disciplinary Tribunal [1].
Speaking about the intelligence received by the SRA, Mr Phillip told MPs that “you would not have got that profile of reports two years ago. You could argue it happened before, but it was never reported to us, but now it is being reported to us.”
Of the seven reports involving NDAs used by law firms, three came from former employees or their representatives, two by law firms and two from media coverage. Four of the six relating to NDAs negotiated by solicitors came from the public, one from a law firm and one from media coverage.
Only one of the cases has been closed – “as a review of the NDA did not give any cause for concern” – while the other 12 “complex and sensitive matters are ongoing”. Two have been referred to the tribunal.
The SRA said it has received a further six reports of misuse of NDAs in relation to other commercial and civil matters, four of which have been closed. Four were reported by the public, one from another regulator and one from an MP.
It also pointed to the case last year of Alexis Maitland-Hudson, a solicitor struck off over multiple allegations, including improper use of a settlement agreement with a former client that attempted to prevent the latter from complaining about him to the SRA.
Meanwhile, a leading QC has criticised the Bar Standards Board’s (BSB) decision to go back on its intention to issue guidance to barristers on the use of NDAs. It recently told the committee that guidance was “neither necessary nor appropriate” [2] given the core duties which barristers already have to comply.
Quoted on the International Bar Association’s website, Baroness Helena Kennedy QC – director of Human Rights Institute – said the BSB’s Handbook was not an adequate substitute for proper guidance and training.
“The core professional duties they set out in the Handbook are all well and good, but lawyers brought in to draft settlements or termination of employment agreements have rarely had training in complaints of a sexual nature and have no idea about the long-term issues which arise for those who have been abused.
“‘Not good enough’ will be on their annual scorecard when this arises at the annual conference of the Bar.”
Interested in this topic? Check out the Legal Futures Masterclass on NDAs, Harassment and Whistleblowing [3]. 27 June 2019, London.