In 2023 the LSB ran a call for evidence to hear peoples’ experiences with NDAs. The summary report of evidence was published in February 2024.
This report contributes to the conversations about the ethical conduct and practice of lawyers advising and facilitating on NDAs. The evidence highlights a potential overuse and misuse of NDAs, where the intention is to cover up misconduct, intimidate or silence people.
The key themes emerging from the submissions include:
- NDA misuse often exploits imbalances of power such as employer/employee, divorce proceedings or consumer disputes,
- potential access to justice issues for individuals in employment disputes, particularly in respect of lack of access to legal advice,
- members of the public lacking understanding about legal rights and NDAs, specifically in relation to protected disclosures, covering up allegedly illegal conduct including unlawful harassment and discrimination,
- NDAs can have an adverse effect on individuals personally and professionally, particularly where there are clauses that bar individuals from sharing the NDA with friends or family.
The evidence will form part of the LSBs gap analysis to determine whether the existing regulatory framework sufficiently accounts for these types of unethical conduct or whether further regulatory intervention is needed to better support and incentivise legal professionals to maintain high standards of professional ethical conduct.
Evidence submitted by organisations are available to read below:
Employment Law Committee of Birmingham Law Society (BLS)
Employment Lawyers Association (ELA)
Independent Society of Musicians (ISM)
Intellectual Property Regulation Board (IPReg)
Ivors Academy of Music Creators (IAMC)
The Office of the Rt Hon Dame Maria Miller MP
Solicitors Regulation Authority (SRA)