Watching the Women and Equalities Select Committee evidence this week on NDAs (see here) a couple of thoughts struck me which may be worth mentioning.
Firstly, the evidence of the City partner portrayed an interesting, common attitude among lawyers. The point the Committee was dealing with was that NDA’s often/sometimes are casually/deliberately opaque about the rights of the subject of the NDA; in particular, how public interest disclosures are permitted under the agreement. I would say, some of these NDA’s are irresponsible by design.
The line taken, which was meant as a helpful suggestion, was that someone else ought to provide guidance to complainants, perhaps on a website somewhere, as to what these opaque or deliberately one-sided agreements really meant. It is tempting to add here, that this help should be given on a website, far far away. A second suggestion was that perhaps the regulators, the Law Society, specialist interest groups, or similar, could get together to tell the lawyers what kinds of agreements were acceptable.
Neither of these are terrible suggestions, but they seek to solve a problem rather removed from the origin of that problem and they miss the fundamental point that it is the lawyer who is responsible for the drafting of their own agreement. It is the lawyer who has to make sure that their agreements are lawful and does not take advantage of their opponent. It could very well be the lawyer who is held criminally responsible if a deliberately opaque agreement is likely to lead to the suppression of evidence.
And, in fact, it might be difficult for a regulator, or representative body, to give watertight guidance on such matters because – as lawyers are always fond of reminding us – every case is different. Each context is important. And, in any event, ultimately it is not the regulator or the representative body which interprets legality or professional misconduct, it is the Solicitors Disciplinary Tribunal or the courts. The SRA, for understandable reasons, is taking a line that says it is better that the professionals get used to taking and accepting the responsibility which is properly their own. They could take another line which is to try and regulate with much more detail. I will leave it to the reader’s own imagination as to how the lawyers would respond to that kind of detailed intervention. Ok, here’s a hint: creative compliance and lots of complaining.
The second point is that Paul Philip, CEO of the SRA, I think indicated in his evidence that any allegation about a suspect NDA which is put to them will be investigated. This is not normally how the SRA deals with complaints. As I understand it, they do not investigate every complaint that is made, even if on its face it, such a complaint may contain a well-founded allegation of misconduct. They prioritise according to the nature of the allegations and the evidence before them as well as the risk posed by the behaviour alleged. It is an interesting question as to which approach is the right one. The hearing provides some uncomfortable viewing for the SRA, particularly the admission that they did not seek a copy of the nondisclosure agreement from Allen and Overy when they met with them to discuss the Zelda Perkins case. Mr Philip properly accepted that this was an error. Such errors are likely born of a flexible approach to investigation.