Law Society to review NDA guidance
The report makes a number of recommendations, including a requirement for employers provide a basic reference for former employees covering employment dates, to prevent this from becoming a bargaining chip. It also advocates clearer language in confidentiality clauses and agreed wording to explain how the employment relationship ended. Other suggestions include:
- ensuring that NDAs do not prevent individuals being able to seek professional advice eg. legal, financial, medical
- issuing guidance to judges and litigants on when an employee’s refusal to enter into a settlement could be regarded as ‘unreasonable’ for the purposes of making a costs order and for such guidance to expressly state that refusal to agree to an NDA should never, in itself, be deemed to be unreasonable behaviour
Christina Blacklaws, President of the Law Society, confirmed in a letter written to the Committee that a review of the guidance is underway, and welcomed the fact that some of the Law Society’s recommendations were reflected in the report.
The SRA has also responded to the consultation with a number of further recommendations including a “cooling off period” to enable parties to digest the terms of the NDA.
Why it matters
But practitioners are understandably concerned. There are currently mixed messages. The regulators are quick to defend the legitimate use of NDAs in employment cases. But get it wrong, we are told, and you will find yourself hauled in front of the SDT accused of lack of integrity failing to uphold the rule of law. Where is the line? When instructions are received to draft a quick NDA, how far does the solicitor have to drill down into the facts behind the agreement? Should we be interviewing the company Directors, reviewing grievance notes? If so, that adds a lot of time onto what should otherwise be a quick bit of drafting.
Very few people would condone the use of NDAs as a secondary form of bullying or harassment, or a way of attempting to frustrate an individual’s rights. There is however a legitimate discussion to be had about whether the solicitor drafting the agreement is the correct target for any fall out. Shouldn’t we instead be focusing on the person that did the deed?
SRA-supported firms are amongst those with serious AML issues
Firms that are classed by the regulator as ‘high impact’ are often allocated to an individual Relationship Manager at the SRA. That person works very closely with the firm (breathes down their neck, some might be tempted to say) to ‘help’ the firm manage its compliance risks.
Nicola Kirby, a member of the Law Society’s money laundering task force, speaking at the recent Legal Futures conference, indicated that a third of firms referred for disciplinary action had Relationship Managers in place.
Interestingly, she is also reported as commenting upon the SRA’s concerns with screening of staff. There is currently no guidance on this vague requirement of the Money Laundering Regulations, but seemingly the SRA would like to see detailed checks taking place, including credit and bankruptcy searches, particularly for employees in high-risk departments and accounts departments.
Why this matters
It’s apparent that even those with direct access to SRA support are struggling to comply with the Money Laundering Regulations, so one does wonder how the small firms are expected to reach the high standards expected of them.
It is a stark reminder to all that it really is imperative that a thorough AML risk assessment is undertaken and a regular review of the firm’s policy is in order.
A reminder that our AML checklist is available to download below.
Inconsistent approach to mental health
This is a concern that has been highlighted by many in recent months. Mr Bennett questioned whether it was appropriate for the SRA to prosecute in cases where there was a mental health element. He also criticised what he considered to be the ‘hard line’ taken by the SRA in these cases. He raises an interesting point and queries whether the legal profession should be subject to the fitness to practise criteria similar to that of the medical profession.
Why it matters
But the regulators are slow to catch up. There is little room in the current disciplinary process to factor in mental health, even in mitigation. When a solicitor makes a foolish error of judgement, even when mentally vulnerable or under intense pressure, it is more likely than not that they will be guilty of dishonesty and therefore struck off.
A ‘fitness to practise’ regime, as an alternative to disciplinary proceedings, would at least give the regulators the option of removing people from the profession without a finding of ‘guilt’. It would recognise mental health as a medical issue. As we know, we are one of the only professions where a ‘guilty’ verdict effectively removes an individual’s ability to practise forever.
Solicitors under no duty to highlight an opponent’s errors
Lady Justice Aplin acknowledged the “technical game playing”, but confirmed that there was no duty to act otherwise.
Why it matters
Doesn’t make them any less of a rotter, mind you.
Practice notes and guidance
- Criminal prosecution of human trafficking – Law Society guidance for practitioners to be aware of their duty to enquire and, if necessary, investigate further any claim that an individual is a victim of trafficking
- Martyn Robert Brown has been struck off for having retained £69,177.22 of client money intended for professional disbursements and insurance premiums. The SDT found that he had acted dishonestly and had repeatedly and deliberately acted in such a way over a period of four years. He was ordered to pay £9,068.
- Clive Leslie Billington, solicitor of 32 years, has been struck off for having failed to inform the lender of the true nature of previous transactions that he was involved. He was instructed in relation to the leasehold sale in 2008 but had also acted for both parties in a sub-sale of the property. He agreed to pay £2,500 costs.
- Levent Chetinkaya has been struck off after having been found guilty of two counts of dishonesty concerning the two letters sent out in relation to a conveyancing file. He was found to have instructed his secretary to draft and backdate two letters.He was ordered to pay £9,000 in costs. The secretary, Tracy Curaba, was banned from working within the profession.