Boyce: Myriad of misconceptions about NDAs
The Law Society has launched what it called “a public legal education initiative” to help employees understand their rights when faced with non-disclosure agreements (NDAs) – but it appears at odds with both its own guidance to solicitors and that of their regulator.
The society has been under fire for its guidance and pledged in June to review it, although nothing has happened publicly on this since.
But today Chancery Lane has trumpeted a new page on the consumer-facing part of its website entitled ‘NDAs and confidentiality agreements – what you need to know as a worker’, and said it would also disseminate the information through “partner organisations and law firms”.
It is significantly briefer than the Solicitors Regulation Authority’s (SRA) warning notice on NDAs, and also appears inconsistent with it.
When shared with the media yesterday, the web page said: “It would not normally be appropriate for you not to keep a copy of the agreement.” But this implies that it may on occasion be acceptable.
However, the SRA’s notice says it would be improper for a solicitor to “prevent someone who has entered into an NDA from keeping or receiving a copy”.
The page has been updated today to read: “You should always ask for a copy of the agreement, so you have a record of what has been agreed.
The web page seems inconsistent with the society’s own guidance to solicitors as well.
Yesterday it said simply that the NDA should be clear on who the employee can talk to, “including family members and medical professionals”, although that has been tweaked overnight to say the employee should know “who you can talk to”.
The guidance says it would “not be normal” to prohibit disclosure to any professionals for legal or tax advisory, medical or therapeutic reasons.
In other areas, the web page is more strongly worded. It says: “An agreement may not be legally binding if you are not given reasonable time to think about the confidentiality clauses and/or to get independent legal advice.”
However, the guidance for solicitors does not suggest this. It says simply that it is “good practice” to give anyone signing an NDA time to consider it and potentially seek independent legal advice.
The society cited the concerns of the House of Commons’ women and equalities committee that “victims of potentially unlawful discrimination and harassment may be reluctant to report their experiences” as one of the reasons it has published the new page; the committee also recommended that the society revisit its guidance.
Stephanie Boyce, the Law Society deputy vice-president, said: “The legal profession has a responsibility to educate the public on complex and sometimes controversial aspects of the law.
“There are many legitimate reasons why employers and workers may want to enter into confidentiality agreements… However the emergence of high-profile cases, often involving sexual harassment claims, has led to legitimate fears of misuse.”
She said the publicity has led to a “myriad of misconceptions”. Ms Boyce added: “This initiative seeks to equip members of the public with the awareness, knowledge and confidence to make an informed choice when the time comes.”
Crispin Passmore, the consultant and former SRA policy director, has been one of the most outspoken critics of the Law Society’s guidance.
He said: “Yet again the Law Society is putting the interests of solicitors ahead of the public and in particular women’s rights. This is an example of public mis-education.
“And all the while the Law Society continues to publish the practice note for solicitors that has been roundly condemned by many experts, while the women and equalities committee has recommended the Law Society rewrite it.”
The Legal Futures NDAs, Harassment and Whistleblowing Masterclass is on 16 September in London.
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