In a shock decision, a panel where females outnumbered males by a ratio of two to one considered claims by a female and a male and found in favour of the female, while insisting that the male hadn't broken any rules.

i bet a certain magic circle corporate guy is get a little nervous reading the SDT's judgement. Thanks goodness for NDAs!

Why would he be nervous if both sides have signed an NDA?

Because an NDA does not override the obligation to report behaviour which breaches the SRA principles to the SRA, nor does it mean the SDT cannot take action if the behaviour comes to light. 

What is the source for 'an NDA does not override the obligation to report behaviour which breaches the SRA principles to the SRA'?

How would the information come to light if an NDA was signed?

"were he to be instructed"

Yep.

Two drunk people have sex and one of them pays a quarter mill and loses his job? 

Or else he was not drunk and took advantage - in which case it is rape and the result should be banning. 

Which is it?  It's an either or situation and blurred lines here don't make sense.

Has Beckwith appealed?

10:38 Beckwith was all over this lady at a previous firm event and his fellow partners just wagged their fingers at him.  While I am sure the panel is correct that the night in question was a bit messy, it was not a once off abuse of position and the other partners appear to have encouraged rather than stopped him.

They were all over each other, 10.59. How did the other partners 'encourage' him? It wasn't  an 'abuse of position', one-off or otherwise, as his position had nothing to do with it.

Anon@ 1021, if there is an obligation to report to the SRA, that obligation does not go away just because an NDA is signed and the firm suppresses the information. It just means that the firm is complicit in hiding behaviour that should be reported to the regulator. So the compliance officer/general counsel of the magic circle firm in question should have reported the Guy o the SRA, not helped draft an NDA to sweep it under the carpet. 

The SRA have issued several notices making it clear that behaviour which may breach the SRA principles should be reported to them. The fact that an alleged victim of bad behaviour is paid off and silenced does not override this either.
 

@11.20 - I understand what you're trying to say, but if the NDA has been drafted and agreed by all parties, how can it be broken? Also, it's far from the case that NDAs are usually signed to sweep matters under the carpet - they have to be agreed by both sides, and usually the accuser is keen to sign one and get closure (normally via a settlement payout). By your reasoning, the accuser would also be complicit in suppressing the information and failing to report to the SRA.

What notices have the SRA issued saying that allegations of behaviour which breaches their principles (if true) must be reported, regardless of any NDA, and what authority do they have to request that a binding NDA can be broken?

@11:30 Because an NDA is a contract, and they're not magic, they can be broken. Faced with a legal / regulatory duty to report conduct to the SRA, and a contractual duty to stay quiet, many will take the option of simply breaching the NDA, particularly in the current climate - if you signed an NDA five years ago back when none of these stories ever really made it out, I think you'd be a lot more confident reporting now than you were then.

If the story is credible, do you really think any firm is going to sue a victim of workplace misconduct (sexual or otherwise) for subsequently reporting it to a regulator and that regulator taking action against the perpetrator?

Anon @ 1130, imagine if you shoot somebody in the leg with your shotgun, and then you and the person you shot sign an NDA with the help off your employing firm and the person who was shot was paid some money from the firm because the firm wants to protect you, the shooter (after all, you are one of the owners of the firm and friends of management of the firm and the firm does not want to be embarrassed by your behaviour). This idoes not mean that the incident should not have been reported to the police or that if it is, the police  cannot investigate because it would “breach the NDA”! Think about it. 

The law and regulations applying to the legal profession trump contractual arrangements.

If you Google ”SRA” and “NDA” you will quickly find the notices from them.

Anon 08.38 

You’re wrong.   The Tribunal dismissed 50% of the allegations and far from finding that RB didn’t break any rules found that he breached two of the Principles which are the heart of the code regulating the profession. 

@1130 - See Use of non-disclosure agreements (NDAs)  https://www.sra.org.uk/solicitors/guidance/warning-notices/use-of-non-disclosure-agreements-ndas--warning-notice/ 

This repeats earlier warnings to similar effect. 

See also Legal Futures article Solicitors rebuked for settlement agreement clauses https://www.legalfutures.co.uk/latest-news/solicitors-rebuked-for-settlement-agreement-clauses though one of the decisions seems to have vanished from the SRA website. 

£200,000 in costs for *this*? How?!

gives a lot of power to juniors who have a drunken shag with a partner.

They can tell him 'Do X or I will tell the firm we had sex, and they will tell you to go quietly without a pay-off or risk getting beckwithed'

Anon @ 1146, it is worth adding that a firm is not allowed to take any detrimental action against someone who reports a breach of SRA principles to them, even if there is an NDA. Any threat to the person who wants to make a report is itself a further breach of SRA principles. So it means NDAs cannot be used to stop reports of matters that should be reported, and a firm threatening an individual who wants to report is committing a serious  breach (as well as the original breach of not reporting and covering up)! The SRA have been clear on this and again, there is guidance they have published.

its why firms who have hushed up matters that should have been reported need to be worried. And the general counsel of these firms are potentially personally in breach if instead of reporting (as they should), they help prepare NDAs to protect their mates in management. 
 

@Regulatory lawyer - what is the guidance though, and what authority does the SRA have to enforce it? Remember, many accusers happily sign an NDA, and will have received independent advice before doing so. They're not always used to 'cover up', sometimes they're the best way of bringing a matter to a close, and they're rarely used to 'cover up for mates'. If an accuser freely signs an NDA, then surely they would be in breach of the SRA regulations for not reporting. And surely the SRA doesn't have the authority to negate contractual rights agreed in the NDA.

@11.55 - applying the rules in this way is outside the SRA's remit. It's an odd judgement - it reads as if he didn't break any rules but then says he did. Very strange.

NDAs can't be used to cover up for criminal matters, 11.52, I don't think anyone is arguing that they can.

But googling 'SRA' and 'NDA' and looking at the links kindly provided by others, I can't see anything saying that the law trumps freely entered into contracts.

Poor guy

I wonder if he would have been sanctioned if he’d been a barrister?

When, not were he to be instructed.

Anon 07 February 20 14:53: unlikely. Lord Lester QC was found to have harassed a woman and abused his position by offering her a peerage in exchange for sex, and was voted out of the House of Lords; but he was not sanctioned by the BSB.

Unlikely he'd have been sanctioned by any other profession to be honest.

He had caused "harm to the reputation of the profession".

This is the nub of it - do not have sex with juinor staff at the same firm.  Even if you think that person is consenting consider how it will look

(Ideally don't drink at work events if you cannont control yourself when you do)

“Unlikely he'd have been sanctioned by any other profession to be honest.”

Agreed but that isn’t the question, as you well know. The question is whether, if he’d been a barrister and found guilty by the BSB of the equivalent regulatory breach, he would have been sanctioned.

Anon @1320, the obligation to report breaches of the SRA principles to the SRA stands notwithstanding any NDA. The earlier poster is correct on this. Believe me, this is my area of expertise and what I focus on in my professional life (my firm advises in this area). 

He didn't bring the profession into disrepute though Lydia, no more than she did. It's up to them if they want to have sex,  not the SRA. She did consent, and 'junior's is irrelevant.

She was drunk too, more than him, and her argument was that she was out of control and he wasn't. So by your logic she should be disciplined.

Why don't you answer your question yourself again 16.10?

What is the SRA authority for this Expert, and how does it supercede contractual obligations?

“He didn't bring the profession into disrepute though Lydia, no more than she did. It's up to them if they want to have sex,  not the SRA. She did consent, and 'junior's is irrelevant.”

The Tribunal found that he did bring the profession into disrepute. That finding stands unless and until it is overturned on appeal.

The tribunal may have found that he brought the profession into disrepute. That doesn't mean he did 16.59.

It is surprising to me that so many posters on this thread seem to think an NDA can be used to avoid an obligation to report to the SRA. 
 

if there had been an issue that has arisen that is reportable, it should be reported to the SRA. The obligation in the regulations is not in any qualified by “confidentiality” and it would be absurd if it was. That would just mean that to avoid an obligation to report, you just enter into an NDA. 
 

it is true to say that firms have entered into these NDAs, often with the full involvement of compliance and general counsel, with a view to avoiding the obligation to report or where, even if that is not the primary purpose, that is the result. This however is improper and is itself another breach of the regulations (because failing to report is itself a breach). Firms take the view “no one will know because we have silenced them”. That does not mean what they are doing is compliant, it just means they don’t think they can ever be found out.

The question was more how can the contract legally be broken 11.48. You mention a conflict between what the SRA is requesting (it isn't clear that this is a legal requirement) and a contractual obligation (which is legally binding), but it seems the only protection against breaking an NDA is hoping the firm or other party won't sue or injunct.

The firm or the other party to the NDA would, I believe, have the right to sue, and yes, I really think you will see cases where they do, especially if the person breaking the NDA doesn't return the settlement or if the NDA was signed many years ago. Remember that in the context of the terms of the contractual obligations under the NDA, it is the person breaking them who is the burpetrator, not the party impacted by the breach.

“The tribunal may have found that he brought the profession into disrepute. That doesn't mean he did”

That is exactly what it means. That is how findings work. It is now an objective truth that he brought the profession into disrepute.

Thanks 17.30, but what authority does the SRA have to compel parties to the NDA to break the contract or to not be able to enforce their contractual rights when there has been no criminality, especially where all parties to the NDA entered into it freely and after legal advice and are happy with it.? That's the question nobody seems able to answer. To invert your question, one would wonder why anyone would enter into an NDA if they knew that it wasn't binding and indeed was some sort of SRA rules breach.

Remember that many NDAs aren't to do with 'not being found out' but are rather to draw a line under a matter.

Thanks very much for the links 12.00. The first one is interesting, but  I suppose the question led to is on what basis can the SRA enforce these directives? This is answered to an extend by the second link, which seems to indicate that the SRA targets NDAs which specifically refer to prohibiting complaints to the SRA rather than all NDAs, but again it isn't clear what authority they are acting under. Yes, it is strange that one of the links has vanished!

"The question is whether, if he’d been a barrister and found guilty by the BSB of the equivalent regulatory breach, he would have been sanctioned."

The answer to the question is "unlikely he'd have been sanctioned by any other profession to be honest".

You're not quite getting what a finding is 18.08. An objective truth must be objective. A finding is just the views of the panel. In this case they got it wrong, since Beckwith didn't bring the profession into disrepute.

By your logic, a tribunal making a finding that pigs could fly would make this an objective truth.

In reality, Beckwith (and his family) were fined £235,000 for this.

“The tribunal may have found that he brought the profession into disrepute. That doesn't mean he did”

“That is exactly what it means. That is how findings work. It is now an objective truth that he brought the profession into disrepute.”

Exactly. The Tribunal had to determined whether he had brought the profession into disrepute. This is a mixed question of fact and law. They found that he had brought the profession into disrepute. That finding stands as an objective truth unless and until it is overturned. As a result, there would be a defence of truth if he were to sue anyone for defamation for saying he brought the profession into disrepute. 

We may disagree with the Tribunal’s findings, but our views are merely anecdotal.

"The question is whether, if he’d been a barrister and found guilty by the BSB of the equivalent regulatory breach, he would have been sanctioned."

The answer is: unlikely, because the BSB is far more lenient. See the Lester case.

You're not quite getting what a finding is Dave. An objective truth must be objective. A finding is just the views of the panel. In this case they got it wrong, since Beckwith didn't bring the profession into disrepute.

By your logic, a tribunal making a finding that pigs could fly would make this an objective truth.

Odd that you post comments under multiple names agreeing with yourself, especially when you're wrong.

Daveanon, 

The question is whether, if he’d been a barrister and found guilty by the BSB of the equivalent regulatory breach, he would have been sanctioned."

The answer to the question is "unlikely he'd have been sanctioned by any other profession to be honest".

Not because of any leniency on the part of any other profession.

Anonymous, do... do you actually know what the SRA is? It’s the Solicitors Regulation Authority, ie the professional regulator for all solicitors/firms in England and Wales. Its authority comes from statute (among others, the Solicitors Act 1974). Professional regulators have the power to investigate and discipline professionals regardless of the terms of any private contract they may have entered into. 
 

An NDA term which purported to prevent the parties from going to the SRA would almost certainly be unenforceable on public policy grounds. 

@wtf - it's a discussion about whether NDAs are enforceable. Try and look at how others have responded in putting forward their argument instead of being insulting when you don't agree with something or don't want it to be true.

I'm well aware of what the SRA is and how it is authorised by statute. The question is under what authority the SRA can force parties to a freely entered into and legally binding contract to break that contract.

You say an NDA preventing parties going to the SRA would almost certainly be unenforceable (which sounds a bit like you don't know if its unenforceable or not). Yet you seem unable to say why you think that or under what authority it would be unenforceable and the SRA able to prevent the parties enjoying their contractual rights. 

wtf 08 February 20 08:05: thanks for your post. Anonymous is an idiot or a troll or both. You are correct as regards the powers of the SRA. There is a hierarchy of laws: statute, common law, contract, and the last of those is subject to the first two. The impact on freedom of contract by statute and the common law is well-known. In the case of NDAs, it is an implied term of such contracts that they are subject to the obligations imposed by the SRA. (Of course, some NDAs contain an express term to like effect.) If an NDA dealt with matters which had to be disclosed to the SRA, it would be an implied term that those matters had to be divulged to the SRA, notwithstanding any relevant confidentiality obligations. Accordingly, it would not be a beach of an NDA if one or both of the parties make a mandatory disclosure to the SRA of those matters. 

As for the point made by Anonymous relating to flying pigs, as he knows or is too stupid to realise, such a matter would not be a fact in issue, so would never be before a decision-making body for determination. Where a fact is in issue, as it was in the Beckwith case, the role of the tribunal (or court) is to find whether a fact happened or not. In the Beckwith case, the issue was a mixed question of fact and law, namely whether Beckwith had brought the profession into disrepute. To determine this, the tribunal found the facts in the context of competing accounts, and then applied the legal test to the facts as found. It is thus now an objective truth that Beckwith brought the profession into disrepute. 

Dave’s point re the disparity of approach as between the SRA and the BSB is spot on. There is a divergence, because the SRA is generally much tougher than the BSB when sentencing for congate regulatory offences. (Anonymous’s point that Beckwith would never have been tried by the BSB is of course true but, as he knows or is too stupid to discern, is irrelevant. The issue is whether there is a disparity of approach between the regulatory bodies. Answer: yes, for the reason explained above.)

These points above re: NDAs are mental. I hope they’re posted by overeager law students. It’s a serious cause for concern is any of the posters have practicing certificates.

The SRA has the power to impose reporting obligations on the firms / individuals it regulates and the power to hand down sanctions if such firms / individuals fail to comply with those obligations. Those powers are given by statute.

Signing a private contract with your victim does not negate the powers of the SRA. Saying the SRA “forces you to break your contract” is the wrong way of looking at it.

The right way is to say that the regulator is obviously not bound by private contracts entered into by the people it regulates and therefore it’s stupid for a firm to sign a contract which it is impossible for them to fulfil without breaching their regulatory obligations.

If a firm snookers itself by signing a dodgy NDA, the SRA does not therefore have to offer it a free ball...

Anonodave - you don't say under what authority the SRA can compel parties to an NDA who freely entered into a legally binding contract to break that contract. Note, I'm looking for authority, not pseudo-legal gibberish or name-calling.

You're not quite getting what a finding is. An objective truth must be objective. A finding is just the views of the panel. In this case they got it wrong, since Beckwith didn't bring the profession into disrepute. By your logic, a tribunal making a finding that pigs could fly would make this an objective truth.

The question is "whether, if he’d been a barrister and found guilty by the BSB of the equivalent regulatory breach, he would have been sanctioned." The answer to the question is "unlikely he'd have been sanctioned by any other profession to be honest".

Anonymous 08 February 20 14:47: you are an idiot and a troll. I just hope you don’t make it into the legal profession.

@Actually a solicitor - while some of the comments are indeed 'mental', the question of what authority the SRA has to compel individuals who have freely entered into a legally binding contract to break that contract hasnt been answered, although several self-described 'experts' have given their opinion. Your talking about victims shows a fundamental misunderstanding of why the majority of NDAs are entered into - they're entered into freely and after independent advice. It does raise the question of whether you are 'Actually a solicitor's at all, or at least one who is any good.

For something which you think only overeager law students would ask, not those holding a practicising certificate, you seem notably unable to provide any sources or authorities whatsoever to support your assertions and can only resort to name calling of people who are asking a question which you yourself don't seem to know the answer to.

Perhaps the SRA can contribute with what they believe the extent of their powers to be, together with authority...

Thanks for your nuanced and calm analysis anonodave @ 16.04, and good afternoon to you to.

For the troll on this page who refuses to accept NDAs should not be used to avoid reporting to SRA.

See the Notice issued by the SRA on 12 March 2018 and updated on 25 November 2019 “warning” firms not to use NDAs to avoid reporting matters that should otherwise be reportable or to justify failing to notify SRA of misconduct or to influence anyone not to disclose reportable matters to the SRA. It goes on to say that an NDA should not give anyone even the “impression” that “reporting” or “disclosure” are prohibited. The SRA mention In the notice they have statutory powers to investigate any such breaches and failures by firms may breach paragraphs 7.5 and 7.7 of the Code of Conduct for Solicitors and paragraph 3.10 of the Code of Conduct for Firms. It concludes that any solicitor who uses an NDA in the way it describes is in breach of the SRA requirements and will be “subject to disciplinary action.”

Maybe the troll who refuses to drop his nonsensical position is one of those management figures from MC who has been using these NDAs to hide bad behaviour by his friends in management and his firms money to silence people who have complained.

“the question of what authority the SRA has to compel individuals who have freely entered into a legally binding contract to break that contract hasnt been answered....”

An answer has been given. Look at what is said about statutory powers, hierarchy of laws, and implied and express terms. 

This is basic stuff. Wake up or take your trolling elsewhere.

The question again though, Regulatory lawyer, is what authority the SRA have to compel individuals who have freely entered into a legally binding contract to break that contract. You have provided no information on this authority.

Your talking about 'bad behaviour by friends in management' shows a fundamental misunderstanding of why the majority of NDAs are entered into - they're entered into freely and after independent advice.

Try not to call people 'trolls' or formulate wild conspiracy theories which you don't know the answer to, it makes you look like a troll yourself.

Anonadaveagrame @8.07 - you don't say under what authority the SRA can compel parties to an NDA who freely entered into a legally binding contract to break that contract. Note, I'm looking for authority, not pseudo-legal gibberish or name-calling.

Wake up! (or alternatively upvote your comments loads of times and post more name-calling and nonsense under another different name).

7th Feb 2020 @ 12.00 - the first link is actually to SRA guidelines. The link specifically says that the guidelines do not form part of the SRA Standards and Regulstions.

It seems to me that no matter how many attempts are made to explain basic principles to the Anon who will not accept NDAs should not be used to override regulatory and statutory duties, that he or she will keep on shrieking, like a bot, “but provide more evidence! I refuse to accept these basic principles of law developed over centuries! I don’t understand! I need you to point to an actual law!”

Anon puts fingers in ears and starts singing to himself....

Anon@857, the point that it seems to me you miss when you say NDAs are entered into freely etc between Party A and Party B (which is of course a valid point to make), is that the regulations are designed  to protect the integrity of the profession as a whole. Just because Party A and B may agree to draw a line, does not mean the SRA agrees that too or to ignore behaviour which is wrong just because there is an NDA. The SRA is about discouraging behaviour that is inappropriate in the profession. They are certainly not stopped from investigating or taking action against Party A or B (whoever breached the principles), just because Party A and B agree something between themselves, which may include a payment. The earlier poster pointed out that in fact, the SRA have expressly said entering into these types of NDA arrangements may itself a disciplinary matter.

As I understand it, other professions have similar rules. Eg if a doctor screws up, just because a damaged patient receives a payment, does not mean the medical governing bodies cannot do anything with a view to protecting other patients and the profession. They would have additional rights to pursue the doctor if he or she tried to cover up with an NDA.

11.20 - that's a funny typo if it's intentional

Anonodaveahaha @3.15 on the 10th - you don't say under what authority the SRA can compel parties to an NDA who freely entered into a legally binding contract to break that contract. Note, I'm looking for authority, not pseudo-legal gibberish or name-calling.

Haha 10 February 20 03:15: you are right. I actually think the Anon who will not accept that the SRA can overide NDAs is mentally ill. Hence the copy and paste of his comments in verbatim terms. It indicates an unsettling pathology. 

Anyhow, the votes are overwhelming in favour of the obviously correct position that the powers of the SRA and related disclosure obligations can displace NDAs.

Anonodaveahaha @9.21 - you don't say under what authority the SRA can compel parties to an NDA who freely entered into a legally binding contract to break that contract. Note, I'm looking for authority, not pseudo-legal gibberish or name-calling.

Let me try and explain in basic terms to Anon troll everyone!

Imagine this (quite common!) scenario: Firm A becomes aware of inappropriate behaviour by management member B which damages victim C. Victim C gets paid off and signs an NDA prepared by Firm A’s general counsel under which Victim C, in exchange for cash, agrees to say nothing to anyone about management member B’s behaviour. General counsel is likely a buddy of management member B, but that is just an aside....

Firm A is obliged to tell the SRA (regulator) of the inappropriate behaviour by B. The fact that there is an NDA does not matter. In fact, by entering into an NDA which purports to prohibit anyone telling the SRA, a new breach arises by Firm A (in addition to the existing breach by management member B and the second breach by Firm A for not originally reporting). If the general counsel/compliance team are complicit in this cover up, they are personally in breach of the regulations. 

Anon - do you understand ? If not, suggest you trust me in this one and don’t cut and paste the same weird demands for “evidence of the law”.

@I will try - the question of what authority the SRA has to compel individuals who have freely entered into a legally binding contract to break that contract hasnt been answered, although several self-described 'experts' have given their opinion. Your talking about inapprorpriate sbehaviour and buddies hows a fundamental misunderstanding of why the majority of NDAs are entered into - they're entered into freely and after independent advice.

You can only resort to name calling of people who are asking a question which you yourself don't seem to know the answer to.

I will try 10 February 20@10:09: what you say is entirely right. I think the anonymous troll is unwell, as his reply to your message at 11.27 further demonstrates. 

When faced with someone like him, it is best to behave as you would if you realised you were sitting next to a drunk on a train: just ignore.

also reg lawyer - agreed that the contract is entered into freely and that one function of the SRA is to protect the profession as a whole. The questions are what regulations the SRA has in place stating that parties to the contract must break that contract or that parties can be disciplined for freely entering into the contract and what authority the SRA has to enforce any such regulations.

It's hard to comment on the hypothetical medical example without knowing what regulations are being referred to there.

Anon @ 1127, you have had many people try and tell you the answer but you just don’t seem to understand -  everyone else does. The issue has been explained over and over again. I agree no need for name calling, but you really are making posters assume you are a few sandwiches short of a picnic 

Anon, what on earth does the fact that NDAs are entered into voluntarily and after legal advice (no one is disputing this), have to do with the issue of whether NDAs override the obligation to inform the SRA of inappropriate behaviour? These are two completely separate points. And the obligation to inform SRA falls primarily on the firm, not the person who agrees to be silenced through the NDA. You just don’t get it so pleas stop annoying us all with your infantile thought processes.

Anin - the question of what authority the SRA has to compel individuals who have freely entered into a legally binding contract to break that contract still hasn't been answered or explained though. The only thing posters will assume is that nobody trying to explain so far knows the answer.

Anonodaveahaha @12.13 - you don't say under what authority the SRA can compel parties to an NDA who freely entered into a legally binding contract to break that contract. Note, I'm looking for authority, not pseudo-legal gibberish or name-calling.

I think some of these questions/answers get the analysis of exactly what is going on here wrong, although most (ie everyone other than Anon) are mainly, or partially correct.

The question is not whether the SRA can force someone to break an NDA, or whether they can override an NDA; the question is whether an NDA is binding in these circumstances (clue: it isn't).

An NDA is simply a confidentiality agreement.  You can have an NDA as a simple form of settlement agreement where in exchange for cash (or whatever the settlement is) you agree to keep something confidential, or you have can have a confidentiality clause in a more complicated agreement.  The provisions in relation to confidentiality are normally the same/similar whatever the type of agreement.  Most confidentiality clauses/agreements (and all of the precedents at my firm do, wherever they deal with confidentiality) will contain an express provision that sets out that if disclosure (of the confidential information) is required by law, the relevant regulatory authorities, or law enforcement agencies, then disclosure of the confidential information is permitted.

Even if a confidentiality agreement does not contain such an express provision, then for public policy reasons (as explained above), a similar term will be implied.  This means that where the person owing the duty of confidentiality is under a duty to disclose, or might be compelled to disclose confidential information, they are either expressly or impliedly permitted to do so, or another way of looking at it is that it is not a breach of the duty of confidentiality if they do so.

The SRA Guidance now makes it very clear (as explained in @I will try at 10:09 above) that there is a duty on firms to disclose, so failure to disclose is a breach, entering into an NDA is a breach and if the GC/Risk team draft an NDA for the firm (to facilitate the firm's breach), they commit a separate (and personal) breach of the Guidance.  

Whether the complainant who entered into the NDA makes the complaint, or someone else does and the SRA investigates, the NDA is not binding on the complainant (or the firm).

The funniest comments are the unintentionally funny ones.

Anonymous 10 February 20 14:52: thanks. This is what Anon 08 February 20 10:03 said in the first paragraph of his/her post.

It is of course the correct analysis.

@Give me strength - what authority does the SRA have to compel a firm which has freely into a contract with other parties to break that contract?

Your annoyance would seem to stem from the fact that you don't know the answer!

Anonodaveahaha @19.12 - you don't say under what authority the SRA can compel parties to an NDA who freely entered into a legally binding contract to break that contract. Note, I'm looking for authority, not pseudo-legal gibberish or name-calling.

Anonymous @14.52 - it's a surprisingly common mistake that people make to think that because NDAs can't be used to prevent criminal allegations or whistleblowing, then it must follow that all NDAs are unenforceable. You are not the first to make this mistake and you won't be the last.

You don't provide any sources for your the SRA guidelines you are referring to or your interpretation of them. It is clearly not the case that all NDAs are unenforceable (the SRA themselves don't argue that they are) and GCs whi draft and NDA to cover an alleged breach (by the firm or the complainant) are no more likely to be hauled before the SRA than an accuser who takes a payoff in exchange for signing an NDA.

Where your analysis obviously fails though, is that you are unable to say what authority the SRA have to compel parties who have freely entered into a legally binding contract to break that contract, or what authority they have to declare a contract unenforceable. Perhaps the SRA can provide details as to what authority they have to do so...

Here you go m8: 

Paras 3.2 and 3.3 of the Code of Conduct for Firms create the duty on firms to assist the SRA and disclose information requested.  Para 3.9/3.10 is the obligation to notify of matters that might breach the regs*.  (Solicitors Act '74 s31(i) for the underlying statutory powers underpinning it all, if that's what's bothering you).  

As for this being enough to "break" the NDA, see for example Parry-Jones v Law Society: "Such a duty of confidence is subject to, and overridden by, the duty of any party to that contract to comply with the law of the land. If it is the duty of such a party to a contract, whether at common law or under statute, to disclose in defined circumstances confidential information, then he must do so, and any express contract to the contrary would be illegal and void."

(*whilst I'll concede that arguably pre-Beckwith you could 'reasonably believe' that such conduct wasn't a breach of the regs, post-Beckwith I can't see how you can avoid a conclusion that it is now reportable?  Even legacy stuff if the firm is sitting on an NDA?  Must be a fair few nervous people out there...)

Anonymous 10 February 20 20:25

Anonymous 10 February 20 20:26

You are asking a false question, so the issue does not arise. The contract is not being broken, whether under compulsion or otherwise.

Anon troll @ 20.26. The answer to your question in the simplest possible terms is because party A and party B owe an obligation (based on regulations given by statute) to the SRA. Nothing party A and party B agree amongst themselves can override that. 

Actually I will try and make it even simpler for you. If party A owes party C 100 pounds, nothing party A and party B agree amongst themselves cancels that obligation to pay party C 100 pounds. Get it?

@5.58 - what authority does the SRA have to compel a firm which has freely into a contract with other parties to break that contract?

its like trying to explain to a puppy dog he has to drop the broom from his mouth to get through the doorframe. It might seem obvious but anon troll cannot process it.

drop boy! 

Anonodaveahaha @10.44 - you don't say under what authority the SRA can compel parties to an NDA who freely entered into a legally binding contract to break that contract. Note, I'm looking for authority, not pseudo-legal gibberish or name-calling.

Anonodaveahaha @5.53 - 

Its a surprisingly common mistake that people make to think that because NDAs can't be used to prevent criminal allegations or whistleblowing, then it must follow that all NDAs are unenforceable. You are not the first to make this mistake and you won't be the last.

The Solicitors Regulation Act 1974 doesn't provide the SRA with carte blanche authority to over-ride contracts. Sounds like you're confusing regulations with guidelines.

You don't say under what authority the SRA can compel parties to an NDA who freely entered into a legally binding contract to break that contract. Note, I'm looking for authority, not pseudo-legal gibberish or name-calling.

@Regulatory lawyer @6.05 - the question of what authority the SRA has to compel individuals who have freely entered into a legally binding contract to break that contract hasnt been answered, although several self-described 'experts' have given their opinion. Your resorting to name calling does raise the question of whether you are a 'Regulatory lawyer' at all, or at least one who is any good.

Anonymous 11 February 20 10:23: the contract isn’t being broken. And see Give me strength's mate Dave 11 February 20 01:53 for the answer to the issue.

Anonodaveahaha @12.30 - you don't say under what authority the SRA can compel parties to an NDA who freely entered into a legally binding contract to break that contract. Note, I'm looking for authority, not pseudo-legal gibberish or name-calling.

Anonymous 11 February 20 16:24: can you please explain why you disagree with what Give me strength's mate Dave 11 February 20 01:53 says? Am new to this thread and interested in this point. 

Anonodaveahaha @05.57 - it's because you don't say under what authority the SRA can compel parties to an NDA who freely entered into a legally binding contract to break that contract. Note, I'm looking for authority, not pseudo-legal gibberish or name-calling.

The point, quite obviously, is that the SRA can't "compel" anyone to do anything (i.e. in the sense that it won't use torture to force information out of people and such like!) but that failure to disclose or comply with SRA investigations is itself a breach of the Regulations, for which a sanction can be applied (up to and including simply removing individuals/firms' ability to exist within the profession). The fact that the firm may have a contractual arrangement with a third party where it has agreed not to disclose that information is not a defence to any such breach - so the firm is simply faced with a choice, and the cards are stacked heavily in favour of compliance with the SRA's requests / demands.

You don't always need a legal method of compulsion (indeed few true ones exist), a practical one will do.

TLDR

Anonymous 12 February 20 10:46: I am not Anonodaveahaha, I can assure you. I am new to the thread. Please dignify my honest enquiry with a tailored, considered response, rather than a cut and paste of what you have previously written in response to others. I would like to engage you in reasoned debate.

Why don’t the provisions of the SRA Code and the Parry-Jones case, referred to by Give me strength's mate Dave 11 February 20 01:53, provide a compelling answer to the issue in hand?

[email protected] - yes, it seems that the SRA has no legal authority to compel individuals who have  freely entered into a private contract to break that contract. So the cards are hardly stacked in their favour.

It is then valus to question why someone who has signed an NDA would be worried.

Anonodaveahaha @13.51 - because Parry-Jones relates to legal professional privilege, which is not the issue here. And because you don't say under what authority the SRA can compel parties to an NDA who freely entered into a legally binding contract to break that contract. Note, I'm looking for authority, not pseudo-legal gibberish or name-calling.

I'd stop reading after the first three comments tbh TLDR.

Anonymous 12 February 20 15:12: thanks, but the Parry-Jones case also concerned the question whether a contractual duty of confidence, separate from a duty arising from legal professional privilege, operated to oust the duty to disclose to a statutory regulator.  Lord Denning said no (as he did re legal professional privilege); Diplock LJ said legal professional privilege was irrelevant to the case and that it was all about contactual non-disclosure; and Salmon LJ agreed with both judgments. Diplock LJ said: “What we are concerned with here is the contractual duty of confidence.....Such a duty of confidence is subject to, and overridden by, the duty of any party to that contract to comply with the law of the land”.

You also did not address my second query: why don’t the provisions of the SRA Code, referred to by Give me strength's mate Dave 11 February 20 01:53, provide an answer to the issue in hand?

Anonodaveahaha @16.18 - 

Its a surprisingly common mistake that people make to think that because NDAs can't be used to prevent criminal allegations or whistleblowing, then it must follow that all NDAs are unenforceable. You are not the first to make this mistake and you won't be the last.

You don't say under what authority the SRA can compel parties to an NDA who freely entered into a legally binding contract to break that contract. Note, I'm looking for authority, not pseudo-legal gibberish or name-calling.