The SRA first published its Warning Notice on non-disclosure agreements (NDAs) in March 2018, following concerns arising from the #metoo movement that settlement agreements containing NDAs were being used to prevent the reporting of misconduct to the relevant criminal/regulatory authorities. Approximately 5 years on, the SRA has conducted a thematic review, conducting surveys and visiting firms, to attempt to establish the extent to which lawyers and firms are aware of the Warning Notice and are using settlement agreements/NDAs appropriately.
In this discussion, our Regulatory and Professional Discipline Partner, Andrew Pavlovic, and Partnership and Employment Partner and General Counsel, Beth Hale, discuss the key findings of the thematic review, including:
- Templates – the risk to firms in using templates without considering the underlying facts of each matter in order to determine whether an NDA clause is appropriate
- Training – how training can be used to address gaps in knowledge regarding the Warning Notice, and how to deal with vulnerable clients
- Commercial and economic pressures – how lawyers and firms can discharge their obligation to act in the best interests of their client when they are required to work under tight timescales and within budgetary constraints
- Handling difficult or vulnerable clients – the circumstances in which it may be necessary to discuss matters with the COLP and/or consider ceasing to act where a client does not accept instructions in respect of an NDA clause
- Reporting the conduct of others – when it may be necessary to report the conduct of the opponent’s solicitors where they draft or present an NDA which does not comply with the Warning Notice
If you have any questions arising from this video, or you would like to discuss any issues regarding NDAs or SRA investigations and regulation, please contact our Partner Andrew Pavlovic, who specialises in regulatory and professional discipline law, or Beth Hale who specialises in partnership and employment law.
CheckYourNDA – Free Online Tool
Try our free, interactive tool, CheckYourNDA, to help you check the terms of any non-disclosure or confidentiality agreement to ensure they are appropriate, enforceable and in line with best practice.
The tool provides you with a traffic-light report, giving you feedback on areas of potential concern on your NDA provisions, with explanations and suggestions for improvement. You can access the tool here.