NDA warning notice, now updated

News

We have revised our warning notice on the use of non-disclosure agreements (NDAs) to clarify its scope and provide more practical examples of the type of conduct which we regard as improper.

We first published the warning notice in March 2018, when the impact of the “#Metoo” movement was beginning to impact the legal sector and made some minor amendments to it in November 2019 to reflect our new Standards and Regulations. We made a commitment to review the scope of the notice in light of the issues we have seen in practice, and discussions in the sector and beyond.

We are not changing our approach to this issue but have revised the notice to clarify our expectations. In summary:
 
  • we have made it clear that we are concerned about the conduct of practitioners advising on and negotiating NDAs, as well as the terms of the agreement
  • we have clarified that the notice applies whether the opposing party is represented or not, and to NDAs in whatever context they may arise
  • we have provided examples of behaviours which are of concern and expanded the examples of clauses we regard as improper
  • we have emphasised the importance of using plain English and making sure the agreement is clear on what disclosures can and cannot be made.

Read the revised warning notice.