The Church and NDAs - cockup or conspiracy? a short thread.

In 10yrs+ working (firstly) in private practice for churches, as a Diocesan Registrar and (now) in-house for a church institution, I have never been specifically asked to draft a non-disclosure agreement.

I'm not the only ecclesiastical lawyer in the world - others may well have been asked to do so. But I have never heard colleagues that I have worked with speak about them either.

What I *have* been asked to do is to draft Settlement Agreements. These are agreements which govern the departure of an individual from an organisation - most commonly seen in employment relationships, but can be adapted for office-holders too (such as clergy)

Settlement agreements tend to contain a number of fairly standard clauses. These include agmt as to termination of appointment, some form of financial compensation, [usually] an agreed reference, and a waiver by the individual of any legal claims they might have against org

The standard templates for such agreements will also include some agreements as to confidentiality, and agreements that each party will not make derogatory statements about the other. *This* is where the major difficulty arises.

Churches, as charities, do not want (correctly) to spend thousands of pounds on a bespokely drafted agreement. They will want the lawyers to prepare it as cheaply as possible. And this means lawyers will run to their precedent banks.

Most lawyers will have access to central precedent banks prepared and maintained externally by external companies, such as LexisPSL or the Practical Law Company. These precedents will not be prepared with little charities or churches in mind.

So the first draft of one of these agreements is usually more suitable to a departure of a director of a large non-charitable corporation than a church. Large corporations have shareholders and share prices to think of, and therefore tightly-drafted confidentiality provisions.

I do not think this is good enough, and the Church needs to do better and hold its lawyers to a high standard on this. But equally, lawyers act on *instructions* from the client. A clear steer on what properly needs to be kept confidential and what does not is required

That likely comes at a financial cost to the client - lawyers usually charge by the hour and bespoke drafting is expensive.

But it looks like this has been got wrong and I think the damage inflicted last night is far far worse.

Some things in those negotiations and the presenting situations may properly need to be kept confidential. I have gone through my own precedents and reviewed to loosen the confidentiality requirements. I've had full support from my superiors in doing so.

This does not excuse what has happened and I do not seek to defend the awful things that have come to light. But I think it important to understand - practically - *how* these things might have happened in trying to fix them moving forward. I hope this helps a little bit.

TL/DR - I think it highly likely that bishops/dioceses/church authorities have imposed provisions akin to an NDA without even realising.