NDAs: Improper conduct by law firms happens all the time
A leading employment lawyer has hit out at the conduct of some law firms when negotiating non-disclosure agreements (NDAs) for employers.
Karen Jackson also questioned the independence of panel law firms that firms and employers refer employees to for advice on settlement agreements, which usually contain NDAs.
But she argued that NDAs have been “over-demonised” in the post-Weinstein era.
Speaking at a Westminster Legal Policy Forum event on ethics, Ms Jackson – chief executive of London employment law firm didlaw – said she dealt had represented a lot of lawyers and dealt with many sexual misconduct cases.
“What shocks me the most about our profession is what goes on in law firms. I had a previous career in the City of London and I expected things to be quite different when I moved into law and found it quite shocking actually.
Opposing the suggestion made during the passage of the Employment Rights Bill that NDAs should include a provision nullifying them if a victim later chooses to do so, Ms Jackson said: “If there are people who have signed NDAs who later come to regret it, I blame the lawyer.
“I would never allow a client of mine to sign an agreement unless I’m absolutely sure that they know what they’re doing, that there is no duress, there’s no undue influence and that they are willingly at that moment in time entering into an agreement.
“I routinely deal with people whose mental health has been destroyed by these kinds of situations, but I still will ensure that they have adequate time to think about things and to decide what they need to do.
“The conduct of some law firms, and I’m talking about good law firms with good reputations in this area, is really lacking.”
She recounted a mediation at a big City law firm that began at 9am and did not finish until 2am.
“We were absolutely exhausted. I could barely see straight. My client, who was suffering from various mental health issues, was on the floor and the lawyer for the law firm was insisting that we should sign the agreement. I point blank refused…
“I was told by the lawyer at the good firm, if you walk out, the deal is off. And so we walked out and the next morning the deal was still there.
“My client had slept, she’d eaten, she’d had a cooling-off period and I was able to advise her properly. This is improper conduct and it happens all the time.”
The question of how much employers pay for the employee to take independent legal advice on a settlement agreement came up this week in a parliamentary debate on NDAs.
Echoing employment lawyer turned MP Sarah Russell, Ms Jackson said the customary fee of between £250 and £500 “isn’t enough in most cases to cover proper advice”, and she added that some law firms would not pay it anyway if the employee did not use a lawyer from their panel.
“That panel solicitor is effectively working for that firm,” she said. “They get their daily bread and butter from that law firm. Are they really independent?”
She recalled how she had once been on such a panel for “a big corporate employer” and, after the first time she challenged an agreement, she never received another instruction.
“There’s possibly something that can be done around the general framework and behaviour of respondent lawyers and looking at their ethical obligations and their independence when it comes to NDAs,” Ms Jackson said.
However, she stressed that “we need NDAs and they’re not the great evil that they are purported to be… I think they have been over-demonised in the post-Weinstein era.”
She explained: “I accept entirely that for a victim, particularly of sexual misconduct case, it’s not nice at all to have to be silenced.
“But unfortunately the reality of the situation is you might be in a position where you cannot work and what you really need is a sum of money to allow you to get back on your feet. And the NDA has a role.”
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