We have warned law firms that non-disclosure agreements (NDAs) should not be used to prevent the reporting of professional misconduct. In a warning notice, we have reminded law firms that potential professional misconduct by a person or firm should be reported to us.
This includes sexual harassment or misconduct towards other employees or clients. NDAs are widely used to protect commercial interests, confidentiality, and – in some circumstances – reputation. However, they should not be used to prevent people reporting wrongdoing to the relevant authorities, such as the police or a regulator.
There is widespread reporting of the perception that NDAs, alongside cultural issues within some firms, are resulting in low levels of reporting of inappropriate sexual behaviour. We have received relatively few complaints about such behaviour. Over a two-year period (November 2015 to October 2017) it received 21 complaints relating to such allegations of inappropriate sexual behaviour.
Paul Philip, SRA Chief Executive Officer, said: “The public and the profession expects solicitors to act with integrity and uphold the rule of law. And most do. NDAs have a valid use, but not for covering up serious misconduct and in some cases potential crimes.”
We have published two examples to help solicitors and firms understand its expectations around behaviour and reporting: one involves a sexual harassment complaint, the other alleged sex discrimination and an out-of-court settlement. In both instances, the law firm would be expected to report the misconduct to us.