Evidence NDAs restrict access to justice, says LSB

Evidence NDAs used to cover up illegal conduct, promote imbalances of power and restrict access to justice published by the Legal Services Board.

The Legal Services Board has published this morning a summary report of evidence on the use and misuse of non-disclosure agreements (NDAs), based on the experience of those who responded to a call for evidence last year.

This report contributes to the conversations about the ethical conduct and practice of lawyers advising and facilitating on NDAs. The evidence brings a spotlight to 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:

  • 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 LSB received over 100 responses in total, including from 19 organisations comprised of a range of legal regulators, various industry bodies, charities, and interest groups. 74 individuals across England and Wales also shared their personal experiences with NDAs. These responses reflected instances of how NDAs have been used in industries such as entertainment, higher education, professional services (including the legal profession), charities, the public sector and private sector.

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 legal professionals to maintain high standards of professional ethical conduct.

Chief Executive Matthew Hill, said:

“We’re grateful to those who contributed their experiences to this call for evidence, to help shed light on an area of legal practice that is by its very nature secretive.

The recurring themes highlighted in this report show that where NDA misuse occurs, it can have a devastating impact on people’s lives.”

This evidence contributes to the LSB’s wider programme of work on professional ethics and the rule of law, and the challenges set out in our sector-wide Reshaping Legal Services strategy to ensure high quality legal services and strong professional ethics.

Hill added,

“We want to see a legal sector that provides high quality legal services and strong professional ethics, where the conduct of lawyers is consistent with upholding the rule of law. This report forms an important part of our evidence base as we consider whether the regulatory framework may need to be adapted to help realise this ambition.”

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