Professional Ethics and NDAs: Contracts as lies and abuse?
Moorhead, R
Date: 23 July 2020
Book chapter
Publisher
Hart Publishing
Related links
Abstract
Catharine Macmillan’s paper takes us comprehensively and critically, though contractual doctrine relevant to Non-Disclosure Agreements. She points to the potential for serious abuse; the weakness in relying on the ‘emancipating effect’ of outside advice; and especially the potential that it is signed under duress; or be challenged as ...
Catharine Macmillan’s paper takes us comprehensively and critically, though contractual doctrine relevant to Non-Disclosure Agreements. She points to the potential for serious abuse; the weakness in relying on the ‘emancipating effect’ of outside advice; and especially the potential that it is signed under duress; or be challenged as illegal. Her analysis presents a challenge from within contract law to judges and lawyers who see these agreements primarily in terms of freedom of contract. I wish to present a challenge more external to contract law: a challenge posed by professional ethics. The paucity of challenge to NDAs from within contract is partly a function of the complexity of the law, but more likely the structural inequalities presented by rich, well-resourced individuals deploying canny-drafters and vigorous ‘reputation management’ teams. Professional regulation poses challenges which lawyers, but also judges, as interpreters of contracts, need to take more seriously.
Law School
Faculty of Humanities, Arts and Social Sciences
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