The agreements could be unenforceable and could breach a lawyer’s obligation to uphold the law
The New Zealand Law Society has spoken out against settlement or confidentiality agreements that bar people from lodging a complaint to the legal body.
“An agreement which seeks to prohibit a person from exercising their right to complain to the Law Society in return for a sum of money or some perceived advantage or concession could be unenforceable, against public policy and could breach a lawyer’s obligation to uphold the rule of law. It could also foster corrupt practices and abuses of power,” the Law Society said.
Confidentiality provisions, often sought by both parties in a dispute, are beneficial in many cases, it said. However, lawyers should not be able to “buy off” complainants, it said.
“A confidentiality or non-disclosure clause does not absolve a lawyer from the obligation to report misconduct under rule 2.8 of the Rule for Conduct and Client Care. Failure to report the matter when required to do so could result in disciplinary action being taken against the lawyers who were a party to the agreement,” the Law Society said.
The principle has been endorsed by the Legal Complaints Review Office, it said.
The Law Society’s statement was released after the Law Society of England and Wales published a practice note for lawyers drafting non-disclosure agreements in employment law contexts, whether for their own firm or for a client. The UK legal body said that the interest of the public in justice is the priority in conflicts of principles.