Professional Ethics and NDAs: Contracts as lies and abuse?

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 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.