SRA strengthens NDA guidance

SRA strengthens NDA guidance

The Solicitors Regulation Authority (SRA) has published revised guidance on the use of Non- Disclosure Agreements (NDAs) following concerns about the professional conduct of some solicitors. The guidance, or ‘warning notice’, stresses that solicitors’ duty to act in the best interest of their clients does not override their professional obligation to uphold the proper administration of justice and behave with integrity towards the opposing party.

The guidance, or ‘warning notice’, stresses that solicitors’ duty to act in the best interest of their clients does not override their professional obligation to uphold the proper administration of justice and behave with integrity towards the opposing party.

The SRA warns that solicitors who negotiate, draft, advise on or enforce NDAs have a duty not to take advantage of the opposing party by exploiting their lack of legal knowledge or their limited
access to legal advice. In addition, they must not apply undue pressure or use inappropriate aggressive or oppressive tactics, particularly towards anyone who may be considered vulnerable. For example, they must not impose artificial limits on the amount of time available to agree to the terms of the  NDA.

If a client’s instructions to a solicitor threaten to undermine these professional obligations, the solicitor should consider refusing to act for that client.

The guidance also emphasises that NDAs must be written in standard plain English and must include clear information about which types of disclosure can and cannot be made.

The terms of an NDA must not prevent ‘proper disclosure’ to legal advisers, tax advisers, medical professionals, counsellors and other professional advisers who are bound by a duty of confidentiality. In addition, solicitors should not use warranties, indemnities and clawback clauses in a way that has the effect of preventing or inhibiting such disclosures.  Contact us here.

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 SRA strengthens NDA guidance

SRA strengthens NDA guidance