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UCL law professor: Lawyers who draft dodgy non-disclosure clauses could be perverting the course of justice

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Government announces measures to prevent victims being silenced by using NDAs

📸 Professor Richard Moorhead

Non-disclosure clauses that deliberately attempt to “improperly stifle the revealing of misconduct” or “inhibit or shape the way someone engages” with the criminal process, even indirectly, are “probably criminal, and probably in breach of professional rules of professional misconduct”, argues Richard Moorhead, professor of law and ethics at University College, London.

Speaking during a session of the Women and Equalities Committee (WEC) today, Moorhead’s evidence formed part of the committee’s inquiry into the use of non-disclosure agreements (NDAs) in discrimination cases.

Moorhead, who was one of a number of witnesses, also criticised lawyers’ tendency to prioritise their client’s interests over the public interest in the administration of justice and the protection of the rule of law. He said that the balance between those obligations was “a little bit out of kilter” among lawyers in practice.

Moorhead took the opportunity too to admonish the Law Society for its “rather weak” guidance on the use of NDAs labelling Chancery Lane “cheerleaders of a certain view” which was, he argued, “to their longer term detriment”.

The session comes in the same week that the Business Minister, Kelly Tolhurst, announced new measures to “put an end to the unethical use” of NDAs. They include clarifying that, legally-speaking, NDAs cannot prevent someone from speaking to the police to report a crime and ensuring that an individual is specifically told about their rights in relation to confidentiality before signing. The aim, according to a statement is that “a person is in full possession of all the relevant facts; this will help to prevent employees from being duped into signing gagging clauses which they were unaware of.”

Tolhurst said: “Many businesses use non-disclosure agreements and other confidentiality agreements for legitimate business reasons, such as to protect confidential information. What is completely unacceptable is the misuse of these agreements to silence victims, and there is increasing evidence that this is becoming more widespread. Our new proposals will help to tackle this problem by making it clear in law that victims cannot be prevented from speaking to the police or reporting a crime and clarifying their rights.”

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20 Comments

Anonymous

Maybe this is an LC misquote but “NDA’s which “inhibit or shape the way someone engages” with the legal process, even indirectly” seems a little sweeping for a statement of what constitutes “criminal” conduct don’t you think?

(11)(0)

Anonymous

I for one am against regulating what we can and cannot do with our coconuts.

(10)(0)

Anonymous

May this, may that…

Get it tested at court and stop speculating.

(5)(1)

Anonymous

Sounds like you’ve never met an academic.

(2)(1)

Anonymous

Why isn’t anyone talking about Chuka Umunna taking legal advise from Towers & Hamlins, obviously on incorporating and putting into the fake labour party.

(2)(0)

Anonymous

Alleged victims Professor Moorhead! You really must understand the principle of innocent until proven guilty if you’re going to pontificate in this way.

(5)(1)

Anonymous

Innocent until proven guilty is nothing more than a presumption of evidence in criminal proceedings. It is irrelevant in a commercial context.

(2)(2)

Anonymous

The principal obviously applies in commercial and other civil cases too where an allegation is being made. NDAs can’t be used to cover crimes, its a common misconception.

(2)(0)

Anonymous

The principle, note the spelling, has no application whatsoever. The concept of “innocent until proven guilty” is often quoted, seldom understood. There is a burden of proof in civil cases. NDAs usually provide for permitted disclosure when under a legal compulsion to do so, but with decent drafting that can be a very very narrow exception, and usually the moaner taking the money will sign up to anything to get some cash. And breach of the NDA usually means all the money has to be paid back plus interest, so you tell them after they get the cheque that if they breathe a word to someone you’re coming after them with everything you’ve got.

(3)(0)

Anonymous

Focus less on the spelling and note the point being made, which remains correct. Innocent until proven guilty applies in commercial and other civil cases too – you say yourself that there is a burden of proof. ‘Innocent until proven guilty’ is easy to understand, the problem is more that some people don’t want to understand it. NDAs can’t be used to stop people reporting crimes, its a common misconception that they can and you won’t be able to find a case where someone has signed an NDA, reported a crime to the authorities, and been successfully sued for doing so.

Anonymous

But the point you make has nothing to do with “innocent until proven guilty” but rather whether a contractual bar that could restrict reporting an alleged crime is unenforceable as being contrary to public policy.

Anonymous

You’re confusing two different points. The first is that referring to alleged victims as ‘victims’ shows a failure to grasp the concept of innocent until proven guilty.

The second is the fact that NDAs can’t stop people reporting crimes – a fact that some people don’t seem to understand.

Anonymous

No, there is no confusing.

First, he can refer to alleged victims as “victims” all he likes. It is sloppy and reeks of prejudice but if anyone thinks that has anything to do with “innocent until proven guilty” then they have no grasp of the scope of the legal concept.

Second the post in question was pointing out that the prior commenter was confusing the two issues of the concept of “innocent until proven guilty” and the permitted substantive scope of NDAs in the context of reporting criminal proceedings. I don’t see how pointing out confusion is confusion.

Anonymous

You are confused. There are two separate points.

Point 1. NDAs can’t be used to stop people reporting crimes to the authorities. This has nothing to do with ‘innocent until proven guilty’.

Point 2. To refer to alleged victims as victims is to not uderstand ‘innocent until proven guilty’. To not get this is to have no grasp of the scope of the legal concept.

Anonymous

This all pathetic. If someone wants to take the cash of a settlement it is a perfectly understandable commercial protection to insert an NDA. Most of these claims are try on nonsense by failures in denial and the pay off is just to sort out the nuisance value of the claims. The commerciality is particularly important and legitimate since the media is so quick to publish mere allegations but not to report the eventual outcomes.

(8)(1)

Anonymous

Love how this comes from the same uni who’s rugby club made their freshers sign NDAs

(0)(1)

Cymro

Surely the obvious point here is neither the presumption of innocence nor public policy impediments to contractual enforceability gut whether parliament should legislate to restrict the use of agreements to cover up conduct that is potentially criminal or tortious. Which it probably should.

(0)(0)

Anonymous

The presumption of innocence is fundamental. This is because anyone who believes that an alleged victim is the same as a victim is likely to have a skewed view of how NDAs should be used.

NDAs can’t be used to cover up criminal behaviour, this is a common misconception. So there is no need for parliament to legislate for something which is already covered by existing laws. As for tortious conduct, an NDA is entered into voluntarily by both parties and is in line with the objective of the courts for parties to attempt to settle without going to court. It is very often in the interests of both parties to sign an NDA to resolve matters. The alternative would be a vigorously defended court case which is highly traumatic for the accuser, or the risk of injustice to the accused if the court process is tainted by people who believe that an alleged victim is the same as a victim. This is especially relevant in ‘sexual harassment’ type cases.

(0)(0)

Deed U No

….lawyers’ tendency to prioritise their client’s interests over the public interest in the administration of justice and the protection of the rule of law…..

does this simply mean the former Att – Gen Lord Goldsmith “legal advice” ….justifying the country going to war in Iraq ….(was he acting then as per job description- att: gen of the govt or att: gen to the govt). – discuss.

(0)(0)

Anonymous

Alleged victims aren’t the same as victims.

(1)(0)

Comments are closed.

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