In our latest webinar, “SLAPPs and NDAs – Latest Guidance“, Jonathon Bray and his team delved into the complex ethical terrain surrounding Strategic Lawsuits Against Public Participation (SLAPPs) and Non-Disclosure Agreements (NDAs). With increasing scrutiny from regulatory bodies like the Solicitors Regulation Authority (SRA), this discussion is more pertinent than ever. Here are the main themes, talking points, and takeaways from the session.
Understanding the Ethical Concerns
1. The Role of NDAs: NDAs, typically used to protect intellectual property and sensitive business information, have come under fire for their misuse, particularly in cases involving harassment and assault. Sophie Freeman of The Legal Director, a lawyer with extensive experience in commercial intellectual property and branding, highlighted how NDAs have been weaponised to silence victims, often signed under duress, thereby obstructing justice.
2. The Impact of High-Profile Cases: The webinar referenced the significant influence of cases like Zelda Perkins’ exposure of Harvey Weinstein’s misconduct, which brought to light the abusive use of NDAs. This case, among others, has spurred legislative changes and regulatory warnings, emphasising the need for ethical practice in drafting and enforcing NDAs.
3. Regulatory Landscape: The SRA has issued a warning notice on NDAs, stressing the importance of clear, enforceable terms and the prohibition of clauses that can undermine justice. The updated guidance includes plain English requirements and the prohibition of unreasonable clawback and indemnity provisions. The recent Victims and Prisoners Act 2024 further restricts the use of NDAs to silence victims of criminal conduct.
Practical Guidance for Legal Professionals
1. Drafting Ethical NDAs: Lawyers are encouraged to tailor NDAs to specific situations, ensuring they serve their intended protective function without overstepping ethical boundaries. Freeman stressed the importance of identifying the purpose, information, and parties involved in the NDA, avoiding boilerplate templates that fail to address these crucial elements.
2. Challenging Unfair NDAs: Legal professionals should push back against NDAs that violate ethical principles. Ensuring that clients fully understand the terms and implications of NDAs, including their rights to disclose information to legal advisors, family members, and medical professionals, is paramount.
3. Training and Awareness: The SRA’s thematic review revealed that very few firms provide specific training on NDAs, and whilst most employment lawyers were aware of the Warning Notice, much fewer had any depth of understanding of the ethical issues. Enhancing training programs to cover the ethical use and potential abuses of NDAs can help prevent misuse and ensure compliance with regulatory standards.
Strategic Lawsuits Against Public Participation (SLAPPs)
1. Defining SLAPPs: SLAPPs are lawsuits intended to silence critics, often targeting journalists, activists, and other public interest defenders. These lawsuits can be particularly aggressive, leveraging the legal system to intimidate and financially drain opponents.
2. Regulatory Response: The updated SRA warning notice on SLAPPs reiterates the need for lawyers to avoid abusive litigation tactics. The guidance calls for a balance between advocating for clients and maintaining professional integrity, emphasising the avoidance of oppressive behaviors that characterise SLAPPs.
3. Litigation Ethics: The warning notice, although focused on privacy and defamation practice areas, serves as a broader reminder to all litigators about the importance of ethical conduct. Aggressive tactics that may be considered robust between lawyers can cross into unethical territory when used against unrepresented or vulnerable parties.
Conclusion and Future Discussions
The webinar underscored the necessity for legal professionals to navigate the fine line between zealous representation and ethical practice. With increasing regulatory attention, the onus is on lawyers to ensure their actions uphold professional principles.
A common theme between NDAs and SLAPPs is the critical need for solicitors to balance their duty to act in the best interests of their clients with their obligations to the wider public interest. This balance is essential to uphold the integrity of the legal profession and ensure justice is served.
Solicitors must be vigilant in identifying when their client’s instructions may cross ethical boundaries, particularly when these instructions involve the use of NDAs to silence victims or SLAPPs to intimidate and suppress legitimate criticism. A solicitor should refuse to act on a client’s instructions if those instructions involve unethical practices, such as using legal agreements to obstruct justice, prevent the reporting of criminal behaviour, or engage in oppressive litigation tactics that undermine the public’s right to free speech and transparency. In such instances, the solicitor’s duty to maintain professional integrity and adhere to regulatory standards must take precedence over client demands.
The skill is in recognising, and not crossing, the line between fearless protector of your client’s interests and unethical conduct.
Looking ahead, our next session will focus on law firm culture, exploring how internal practices and behaviours align with regulatory guidance on creating positive workplaces. Join us on the 10th of July for more insights with executive coach Chris Sweetman. Places are limited – register here.
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