Law Society issues guidance for NDAs

The Law Society of Scotland has published new Guidance for solicitors on accepting instructions and advising on non-disclosure agreements (NDAs) and confidentiality clauses. While the Guidance recognises that NDAs are legitimate tools for protecting commercial interests, the society advises that solicitors must carefully consider if such agreements are appropriate in specific circumstances.

There are warnings about the potential risks associated with non-compliance with Law Society Practice Rules, noting that acting on improper instructions could amount to a breach. This includes advising clients on clauses within an NDA that may be unenforceable or fraudulent, or that aim to prevent disclosures protected by law. The Guidance further stipulates that should a client refuse to alter their instructions despite being advised of potential rule breaches, the solicitor is required to withdraw from acting.

David Gordon, lay convener of the Law Society of Scotland Regulatory Committee, said “NDAs are a legitimate and useful tool to protect clients’ interests in certain circumstances but solicitors have to ensure that they do not to overstep the mark and risk breaching the Law Society’s Practice Rules, potentially facing disciplinary action as a result.” He emphasised that the new Guidance provides clarity and support for solicitors when they need to challenge a client's instructions.

Moreover, he noted that NDAs should never be used to prevent the reporting of a criminal offence or harassment, nor should they be employed to avoid the reporting of misconduct or breaches of regulatory requirements. “Ensuring solicitors comply with their professional ethics and regulatory obligations is paramount to ensuring public protection and trust in Scotland’s solicitor profession. Solicitors work extremely hard to protect their clients’ interests and the new guidance will help ensure members comply with their professional obligations while continuing to meet their clients’ needs.”