Legal Services Board issues call for evidence on misuse of NDAs and the role of lawyers

The inquiry will also consider how regulation might better support lawyers

The Legal Services Board (LSB) launched a call for evidence on 2 May on the misuse of non-disclosure agreements (NDAs), the role that lawyers’ conduct can play in the misuse of NDAs, and how regulation might better support lawyers in meeting their professional ethical obligations.

The LSB’s inquiry aims to understand the nature and extent of the misuse of NDAs and the circumstances in which a legal professional may fail to meet their professional ethical obligations in the context of NDAs. In addition to this, the LSB intends to consider regulation on the matter and how it can be used to ensure that the use of NDAs is always appropriate.  

An NDA is a legally enforceable contract or part of a contract between parties that prevents confidential material or sensitive information from being shared with others. In practice, once an individual signs an NDA, they are prohibited from discussing any information protected by the agreement with any non-authorised party. Concerns surrounding the misuse of NDAs have come to light in recent media coverage. The LSB pinpoints the #MeToo movement as a specific example that has increased public awareness of the misuse of NDAs to silence the victims of misconduct in the workplace.

The call for evidence is open for feedback until 14 July 2023. The LSB will publish conclusions and proposals for future action on the matter later in the year, following its analysis of the evidence.

Commenting on the call for evidence, Matthew Hill, Chief Executive of the LSB, said: “The public relies on lawyers to help deliver fair outcomes. That applies as much to NDAs as any other area of the law. We want to make sure that regulation supports – and, where necessary, insists on – standards of conduct that ensure, as far as possible, that NDAs are never used to cover up wrongdoing, silence victims or deprive people unwittingly of their rights. This is something everyone across the sector should be concerned about, and we want to work collaboratively to ensure NDAs – which have a legitimate and important role to play in a wide range of circumstances – are always used appropriately and ethically. We’re interested in hearing from anyone with a view on this topic – whether the real experience of people who have been subject to misuse of NDAs, practitioners in this or related fields, regulators, representative bodies and others – to help identify solutions that uphold public confidence.”