Confidentiality agreements have been hitting the news in recent months. If it isn’t Harvey Weinstein, it is Donald Trump. Their circumstances are different, but they both seem to have required people to sign detailed, and very one-sided, non-disclosure agreements (NDAs).
This should be good news for IP Draughts, as the author of a Law Society book on drafting confidentiality agreements. But somehow, he doesn’t think the lawyers acting for these gentlemen are likely to be purchasers. And even if they are, they won’t find any mention of the extraordinary clauses that are said to be included in their NDAs. Perhaps that is a new feature that we should include in the 4th edition.
Increasingly, IP Draughts is seeing commentary on the ethical issues for lawyers who advise on extreme NDAs. This is part of a larger issue of whether lawyers should uncritically follow their client’s instructions, however dodgy those instructions may be. Professor Richard Moorhead of UCL has been particularly prominent in this field, with a string of interesting articles about what he calls “solutions-focused but ethically neutered lawyering”.
If you think this problem is confined to a particular type of noisy, low-grade lawyer, think again. The House of Commons Women and Equalities Committee had some tough questions for partners in Allen & Overy about one of the cases in the news.
All of this prompts in IP Draughts’ mind the question of how far a lawyer should go in his or her client’s interests. Sometimes, clients want a lawyer who is an aggressive b*****d. Some law firms in the City of London have made it part of their selling point that they are “tough but fair” in litigation or negotiations. By this, they mean that they will comply scrupulously with their ethical obligations (as they see them), but they will go right up to the boundary of what is acceptable and, staying on the right side of the line, make life as miserable as possible for their client’s opponent.
If you are dealing with hard-nosed corporate clients, perhaps such an approach is acceptable and commonplace. But if you are dealing with individuals, such as women who are pursuing claims of personal misbehaviour against rich tycoons, does the boundary of what is ethical shift? And is it appropriate to operate right at that boundary? Behaviour that may seem conventional in other circumstances, eg all-night meetings to discuss the terms of an NDA, or fielding a large team of experienced lawyers against a lone, junior associate, may become inappropriate by default, because no-one has stood back from the situation and questioned the status quo.
IP Draughts may not be the best person to comment on being tough but remaining within acceptable bounds. One of his longstanding but occasional clients, whose judgment he respects, recently told him that his trouble was that he was “too nice”. The implication seemed to be that he would have been instructed more if he had been less nice. And he still remembers the time, about 30 years ago, when as a junior associate he refused to work all night on an agreement, just because his opposite number’s boss (a partner in one of the biggest London law firms) thought it would be a good idea. His refusal was regarded as extraordinary. But the world didn’t come to an end, and everyone was much fresher mentally when they resumed work on the draft agreement the next morning. This wasn’t niceness, it was not following convention when it didn’t make sense.
If you are going to be an ethical b*****d, you have to work really hard to make sure you don’t stray over the line. And be aware that the position of the line may change, for reasons outside your control. Much better for your peace of mind to stay back from the line in ethically secure territory, and be nicer than you need to be or even, sometimes, your client wants you to be.