Non-disclosure agreements (NDAs) have become a risky affair for solicitors. #MeToo threw a spotlight on the role that lawyers play in buying silence from victims of misconduct.
From the lawyer’s point of view, there are clearly regulatory, ethical and reputation considerations when dealing with NDAs:
- Could this piece of work get me into trouble or reprimanded by my regulator?
- Am I comfortable with what I am being instructed to do?
- What are the longer term implications for my own – and my firm’s – reputation if the NDA ever comes to light?
However, the vast majority of NDAs are rather more boring. They are typically agreements drafted with the aim of protecting the parties’ commercial interests. This allows certain conversations to take place without having to worry too much about revealing sensitive information to a potential competitor. That’s the theory, at least.
And yet most firms do not have a policy to either distinguish between high and low risk NDAs, or set out how they should be dealt with.
This is an oversight. Whenever the SRA issues a Warning Notice (see ‘Use of non disclosure agreements (NDAs)’, last updated in November 2020), the profession needs to take notice.
Apparently, there are a number of SRA investigations under way related to unethical NDAs.
That’s why we have produced a free template NDA policy for you to incorporate into your own practice.
The policy distinguishes between low risk (think standard commercial confidentiality) and medium-high risk NDAs. The latter – under this policy – need some level of supervision.
We hope it helps mitigate an increasingly important risk area.