2.5 SRA Warning Notices: NDAs and SLAPPs

Warning notice: non-disclosure agreements (NDAs)

The SQE1 specification says ethics questions can include situations set out in relevant SRA warning notices, such as those relating to NDAs and SLAPPs. Learn the notices as functioning knowledge, not as a separate optional extra.

The NDA warning notice (updated 6 August 2024) applies to negotiating, drafting, advising on, enforcing, or being a party to an NDA. "NDA" includes any agreement or clause under which it is agreed that certain information will be kept confidential — employment settlements, negligence disputes, and commercial deals. It applies whether you act for a client, for your own firm as employer, or for yourself; even if both sides are represented; and whether the parties are individuals or companies.

NDAs are not prohibited. Improper use is.

The SRA is particularly concerned that NDAs are not used to prevent reporting to the SRA, other regulators, or law enforcement, or to prevent disclosures protected by law. An NDA is improperly used if you seek to prevent, impede or deter a person from:

• co-operating with a criminal investigation or prosecution;
• reporting an offence to a law enforcement agency;
• reporting misconduct or a serious breach to the SRA, or making an equivalent report to another supervisor;
• making a protected disclosure under the Public Interest Disclosure Act 1998;
• making any disclosure required by law;
• making a proper disclosure about the agreement or surrounding circumstances to professional advisers bound by confidentiality (legal or tax advisers, medical professionals and counsellors).

You must not include or propose known unenforceable clauses, or use warranties, indemnities and clawback in a way designed to stop permitted reporting (for example, a warranty that the person is "not aware of any reason" they would make a protected disclosure, with clawback if they later report). The NDA must not stipulate, or give the impression, that those reports are prohibited. Any attempt to prevent a person complaining or providing information to the SRA breaches your regulatory obligations (individual Code 7.5; Firms Code 3.11).

The warning notice also restates:

• 1.2 — do not take unfair advantage (unenforceable clauses, oppressive time limits, discouraging independent legal advice, preventing the person keeping a copy). Duties are heightened where the other party is vulnerable or unrepresented.
• Principles 1, 2, 3 and 5. The duty to act in the client's best interests does not override those Principles. If instructions are inconsistent with them, consider whether you can continue to act.

Practical standards the SRA expects: do not use NDAs routinely; do not be complacent with templates; use plain English; be clear what can and cannot be disclosed; confirm advice in writing; if the agreement is a settlement agreement under the Employment Rights Act 1996, know the independent-advice requirements; push back on unreasonable time limits; if an employer is funding the employee's advice, be clear with your client about the limits of that funding while still explaining what the NDA does and does not permit.

Day-one pattern: a partner dictates a clause "the employee shall not contact the SRA or any other person about the firm." You do not send it. You explain the warning notice, amend the clause so regulatory and protected disclosures are carved out, and if the client insists on the gag, you refuse those instructions and escalate to the COLP.

Official source: Use of non-disclosure agreements (NDAs) — warning notice.

Warning notice: SLAPPs

The SLAPPs warning notice (updated 31 May 2024) is aimed at everyone who conducts litigation or gives dispute-resolution and pre-action advice. Strategic lawsuits against public participation are a misuse of the legal system: bringing or threatening unmeritorious claims, or using abusive tactics, to stifle lawful scrutiny and publication, including on corruption or wrongdoing.

Key messages in the notice:

• you must not bring or threaten unmeritorious claims or engage in intimidatory or otherwise oppressive tactics;
• the duty to the client must be balanced with wider duties to the courts and to the rule of law, which take precedence if they conflict;
• you should identify proposed causes of action or behaviours that comprise a SLAPP or abuse of process, and decline to act in that way;
• particular care is required where a publication ventilates a matter likely to engage the public interest.

Causes of action often seen in this area include defamation, misuse of private information, data protection, and breach of confidence. Representing a client who has a genuine privacy or reputation right is not, without more, a SLAPP. Lending the process to harass, intimidate, or financially exhaust a journalist, academic, campaigner or whistleblower in order to distort the public record is.

The Economic Crime and Corporate Transparency Act 2023, section 195, defines a SLAPP in economic crime terms for the court's strike-out and costs machinery. The SRA is explicit that its regulatory role is not limited to economic crime and is not contingent on a court declaration. Pre-action threats that never reach a claim form can still be investigated.

Behaviours the notice treats as likely to attract action, alone or together:

• Claims without merit: assertions that, on what you know, a defence will clearly succeed; exaggerated remedies such as imprisonment or fines on a civil claim; speculative costs threats.
• Oppressive manner: unduly aggressive correspondence; disproportionate volume; vague unsubstantiated allegations sent to an unrepresented person; unnecessary disclosure or applications designed to waste time and cost; suing the individual journalist where the publisher is the proper defendant, without a proper reason.
• Improper purpose: using the threat of litigation to stall another process or to deter others from raising similar concerns, with no genuine intention to vindicate a legal right.

Labelling traps: do not mark correspondence "without prejudice" unless it is a genuine attempt to compromise an existing dispute; do not use "not for publication" / "private and confidential" / fake "Legal Notice" banners to mislead a recipient about their right to seek legal advice or to report. Recipients must not be told they cannot speak to a lawyer.

Competence: defamation and privacy work is complex. Paragraph 3.3 (maintain competence) is engaged. Litigation strategy is your responsibility; you cannot abrogate ethical boundaries to the client. The notice quotes the tribunal line from Simms: what the client wants may be legal, but you may still have to say you are not prepared to help them do it.

Official source: SLAPPs warning notice.

How a day-one solicitor should respond

Worked NDA/SLAPP hybrid, of the kind SQE1 can write: a wealthy client wants a letter to an investigative journalist threatening imprisonment, bankruptcy, and a lifetime gag, and wants the journalist told they must not take the letter to a solicitor. Public-interest Principles 1–5 and Code paragraphs 1.2, 1.4, 2.4 and 7.5 all fire. You:

• identify that the proposed tactics match the SLAPP warning notice (meritless or exaggerated threats; oppressive tone; improper purpose; misleading labels);
• advise, in writing, that you will not send that letter;
• offer only a properly arguable, proportionate, honestly labelled response if a genuine legal right exists;
• refuse instructions to gag a regulator or to stop the recipient taking legal advice;
• escalate to the supervisor and COLP if the client or a manager pressures you to send it anyway;
• record the advice. You do not "soften the adjectives but keep the imprisonment threat" to stay popular.

That is newly qualified level: not a specialist media-law opinion, but the ethical decision the assessment specification describes as functioning legal knowledge.