David Greene, Deputy Vice President of the Law Society has written a piece on NDAs, which is both curious and, I’d say, rather foolish.
For instance, he says:
The Law Society has produced accessible guidance for the public to detail their rights and dispel popular misconceptions that have crept into the public consciousness – for example, that confidentiality clauses may be prohibiting the reporting of a potentially criminal act and thus, in themselves, constitute a criminal offence.
There are two particular problems with this:
- The rather disingenuous idea propagated here is that NDAs are not a real problem, they are just a perception problem. It’s politically foolish, because NDAs are going to keep coming back to haunt the profession and their clients; and this high-handed it’s just a perception line plays terribly with almost everyone other than the lawyers themselves. NDAs will be like Groundhog Day where the plot is: It is the cover-up that kills you; and, they are determined to get killed again and again.
- The Law Society’s Practice Note does not require the NDAs themselves make clear inhibitions of whistleblowing are prohibited. Why not? This is the best way available to them of clearing up the so-called perception problem. The NDA is the one document the ‘public’ should definitely* have if subject to an NDA. Almost all practitioners interested in NDAs tell me they do this already but also tell me of other solicitors who deliberately omit or obscure whistleblowing rights and the like. The Cowboys need to be told, but not by the Law Society it seems. There is a known problem, a clear position on good practice, and the Law Society line is we put something on our website about NDAs to educate the poor dears who don’t understand that NDAs are just a perception issue and that is good enough.
This is but one of several specific ways in which I have, and continue to make the allegation that, to use David’s own words, “the Law Society has failed to discharge [their] responsibility to the public” (See here and here, for some of my criticisms). This charge he says, “is simply not correct.” He makes this sweeping argument without any justification whatsoever. And suggests there needs to be an, “open and frank discussion” with the profession. I would suggest that he has failed in this aim of openness and frankness. Let me outline the ways.
- The charges laid against the practice note are not what he says they are. They are that it fails to reflect good practice** as defined by employment lawyers; that it omits areas of the law that it is relevant, indeed important, for lawyers using NDAs to be reminded of, and that it obfuscates, is in tension with, and sometimes contradicts the SRA Warning Notice. As a result, it fails the Law Society’s members as much or more than it fails the public.
- In particular, such criticisms are not an, “attempt to make any ethical judgement of NDAs beyond the law, nor to suggest standards as they ought to be.” They are a plea for achievable clarity and proper warnings about risky approaches which contravene the law and/or professional rules. This is principally about legality and professionalism, not ethics more broadly. The debate about the regulation of NDAs more broadly is an important, but separate point.
- Moreover, to say, “There is no disparity between our approach and that of regulators,” is incorrect. One example, the Practice Note suggests there may be circumstances where it is permissible not to a party to an NDA a copy. The SRA are clear that this is wrong.
- He also says this, “The practice note was written by specialist practitioners and advisors, with input from the Solicitors Regulation Authority. Through our guidance we advise solicitors to refer to their regulatory obligations and the SRA warning notice.” I await with interest public confirmation from the SRA as to what they think of the Practice Note and how much input they had. But I also reiterate my point that I am absolutely certain that a good many specialist practitioners and advisors in the field think that the Law Society Practice Note should be withdrawn or improved.
- I am fairly sure that David too will be aware that some, perhaps many, of the concerns I have raised about the Note are shared by experienced practitioners in the field. A full and frank conversation with the profession on this topic might be expected to acknowledge this. He chooses to ignore those concerns entirely and not engage with the substance of them.
If that is so, then I think it is fair of me to suggest that David, in raising this issue in this way, and in the terms that he does, is not trying to have a full and frank conversation with the profession. He is seeking to put PR before principles and, more importantly still, is trying to pull the wool over the professions eyes on a topic vital to their reputations.
*As well all know the President’s Club dinner and Zelda Perkins case were both marked by refusals to give the women involved copies of their agreements.
**The note itself says it is a note of good practice.