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'No black-and-white answer’ to NDAs controversy

A British campaigner for reform of the law on non-disclosure agreements (NDAs) has described her experience of negotiating an agreement as “incredibly gruelling and traumatising”.

Zelda Perkins also told an International Bar Association (IBA) conference at the Law Society in Blackhall Place that lawyers who were put in an adversarial position could lose sight of where their ethical duties lay.

Perkins was the first woman to break an NDA, which was signed with former film producer Harvey Weinstein.

She was speaking at a discussion entitled ‘Zealous v Abusive Lawyering’ at an IBA symposium on professional ethics (27 June).

Perkins described the effect that signing the NDA had on her, telling attendees that she moved abroad for five years, as it became clear to her that the conditions of agreement made it “impossible to function” in Britain.

Breakdowns

Perkins said that lawyers did not see the repercussions of such agreements, adding that all the people she had met who had signed NDAs had not only been traumatised by the negotiations, but had also experienced some form of mental or physical breakdown afterwards because of “the increased trauma of being silent”.

Perkins is the co-founder of Can’t Buy My Silence, a group that is campaigning for legislative and regulatory change that will make NDAs unenforceable for anything other than the prevention of sharing confidential business information and trade secrets.

She welcomed movement on the issue in Britain and the US, with the British Government announcing plans earlier this year aimed at ensuring that NDAs cannot be legally enforced if they prevent victims from reporting a crime.

Tension

Responding to Perkins, however, Mike Fandel (Miller Nash, Seattle) told the conference that the lawyer’s duty was to provide a client with the best representation possible.

While acknowledging that there were sometimes inequalities in NDA bargaining positions, he added that he would be “breaking my obligations to my client” if he did not discuss the possibility of an NDA.

Sara Phelan SC (chair, Bar of Ireland) said that there was no “black-and-white answer” to the issue, and that there was a tension between the lawyer’s duty to a client and the duty to the court.

She drew a distinction between three types of NDA:

• Those that covered up something that potentially affected other people,
• Those that covered criminal activity, and
• NDAs where a plaintiff may just be seeking closure and seeking to avoid the stress of litigation.

The Bar Council chair told the event that if Vicky Phelan had not refused to sign an NDA, none of the controversy surrounding the State’s cervical-screening programme would have come to light.

This showed the power of NDAs to suppress information, but also Vicky Phelan’s power in refusing to sign, she said.

‘Unfair’ burden

Jonathan Price (Doughty Street Chambers, London) said that NDAs had been used to suppress information in the Post Office scandal in Britain.

Price added that the problem had been the routine use of such agreements by solicitors for the Post Office.

He told the IBA event that it was “unfair” to place the burden of assessing the balance between the duty to clients and the duty to the court on lawyers, adding that regulatory bodies needed to “empower” lawyers to tell clients that some agreements were not appropriate.

Sara Phelan made a similar point in a discussion on SLAPPs (strategic lawsuits against public participation), referring to the balance between duties to clients and duties to the court.

“Legislation is preferable to individual lawyers having to make a determination themselves,” she stated.

Public interest

Responding to a question on lawyers’ duty to the public interest, as laid down by the Solicitors Regulation Authority in England and Wales, Price pointed to the difficulty of defining in advance of a case what the “nebulous concept” of public interest was.

He added that there was no acceptable definition of ‘public interest’, and that the SRA should signal that it would give “some margin” to individual solicitors in taking these decisions.

Mike Fandel added that, while his duty was to the client, this was not “blind” loyalty.

“Sometimes our job is to tell them not to do what they’ve asked us to do,” he concluded.