Lawyers can’t contract out of professional, regulatory obligations: guidance
The New Zealand Law Society | Te Kāhui Ture o Aotearoa has announced an update to its guidance on non-disclosure and confidentiality agreements, which seeks to help its members comply with their professional and regulatory obligations when navigating such contracts.
According to the law society’s news release, the guidance on “Non-disclosure and confidentiality agreements - lawyers’ reporting duties and suppression of professional complaints” aims to assist lawyers in understanding whether confidentiality clauses can prevent them from:
“This issue is not unique to New Zealand,” the refreshed guidance noted. “Overseas regulators of lawyers have also raised concerns about these types of agreements and, in some cases, issued warnings.”
The guidance clarified that lawyers cannot contract out of their professional and regulatory obligations.
“While confidentiality provisions can play an important role in resolving disputes, they should not be structured in such a way that they appear to override a lawyer’s professional obligations or could impede the progress of complaints and disciplinary processes,” stated the law society’s news release.
The law society urged its members to consider their obligations early in the process of negotiating, drafting, or entering settlement agreements.
The law society also encouraged lawyers to ask for advice in the event of uncertainty about the impact of a planned confidentiality clause.
According to the guidance, if a lawyer relies on a non-disclosure or confidentiality clause that suppresses a complaint or a mandatory reporting obligation, they might violate the following rules in the Conduct and Client Care Rules 2008:
“Lawyers also have obligations to provide information as part of investigations under the LCA complaints and disciplinary framework and regulatory bodies have powers to require the provision of information,” the updated guidance stated. “A failure to comply with this may become a complaints and disciplinary matter or an offence under the LCA.”
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