At the Gazette roundtable on artificial intelligence (12 February), one company present related it had identified 300 different types of non-disclosure agreement (NDA).
NDAs have hit the headlines because of their routine application in settlements where there has been an allegation of sexual harassment. It is this use which has troubled the legal profession as such allegations emerge. Debate about the deployment of NDAs in such circumstances is surely overdue.
Legal opinion is clear – NDAs cannot be used to hide wrongdoing. What is more, ‘wrongdoing’ might be a matter for the SRA as regulator, even if police involvement is not merited. Professionals remain largely unwilling to go on the record about their experience of sexual harassment – and many have been asked to agree draconian gagging terms in settlements.
But, in the current environment, what firm would sue someone who broke the terms of an NDA that related to sexual harassment?
Jonathan Pearl fairly points out in letters (see related stories) that not all allegations are true. But as law firms review both policies and past agreements they might consider why they use the same strategy when faced with allegations that are true as they do when allegations turn out to be false.