Law Society publishes new guidance on NDAs for solicitors

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 recognising that NDAs are a legitimate way of protecting commercial interests, reputation, and confidentiality, the Guidance advises that solicitors should always consider if an NDA is the right approach in certain cases.

It warns of the risks of non-compliance with Law Society Practice Rules and that acting on improper instructions would be a breach. This could include clauses within an NDA which the solicitor knows to be unenforceable, fraudulent or which seek to prevent disclosures which are protected by law. The Guidance also sets out that where a client refused to change their instructions as a result of being advised on rule breaches, the solicitor should 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 Society’s Practice Rules, potentially facing disciplinary action as a result.

“The new guidance provides additional clarity and support for solicitors who may need to challenge a client’s instructions. It sets out what can constitute a rule breach as well as steps solicitors should take to advise their clients when it may not be appropriate to use an NDA. For example, NDAs should never be used in an attempt to prevent reporting a criminal offence or harassment of any kind. Nor should they be used to avoid reporting of alleged misconduct or breach of an individual’s 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.”