Authors Sharmilla Bargon, senior employment solicitor from Redfern Legal Centre, and Regina Featherstone, senior lawyer at the Human Rights Law Centre, said the client was in a position where she had to both educate the lawyer and advocate for herself.

The experience is in line with the finding that almost 30 per cent of applicant lawyers and 50 per cent of respondent lawyers have never given their client an option other than signing an NDA.

The question was put to lawyers as part of a research project to learn how sexual harassment lawyers resolved out-of-court sexual harassment settlements and their approach to confidentiality terms.

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“That was the data that really spoke to us because there is a whole raft of things that flow from that,” Featherstone said.

One of the major sticking points is how this failure could breach the Solicitors’ Conduct Rules, which requires lawyers to provide “clear and timely advice to assist a client to understand relevant legal issues and to make informed choices about action to be taken”.

Bargon said other than published assistance from the Victorian Legal Service Board + Commissioner (VLSB+C) to be mindful of their professional duties when implementing NDAs, there is very little guidance and offending lawyers are rarely sanctioned.

The advice has mostly been viewed in terms of short-term interests only, “but it really requires careful consideration of both a client’s short-term and long-term interests”, Bargon added.

Mia Pantechis, principal lawyer at Maurice Blackburn Lawyers, said the findings were “surprising and alarming”.

“Failing to have those discussions and advise clients about the available options raises concerns around compliance with professional obligations,” Pantechis told Lawyers Weekly.

“The failure to give that information to a complainant ultimately denies them agency and an opportunity to secure objectives that may be really important to them in resolving what are very serious matters that can have a long-lasting effect.”

Bargon and Featherstone also discovered that 69.3 per cent of applicant lawyers and 79 per cent of respondent lawyers have never resolved a sexual harassment complaint without a strict NDA.

“People default to relying on a clause that has been helpful to them for 20-odd years,” Bargon explained.

“People would say ‘but these are the standard clauses’ and that was an argument for inclusion, rather than examining the clause itself and considering whether its inclusion was warranted or otherwise.”

Pantechis mirrored this, adding the general attitude in the profession has been that NDAs are standard “and have historically been rolled out as a non-negotiable” in sexual harassment settlements.

“The respondent playbook in dealing with sexual harassment has been to go into damage control and try to protect the reputation of corporate entities, so cover-up and silence has become the norm and the reactive approach taken,” Pantechis said.

In order to combat this, Pantechis said there needs to be a “shift” in the education process so practitioners see other options are available.

Due to a reluctance to engage in these conversations, Pantechis said the traditional mindset “hasn’t shifted significantly to the point where people have the education and the guidance to be able to have informed discussions” around the nuances in NDAs.

Featherstone said this kind of education will be important in changing the “huge, huge culture” that what is standard is normal.

“We’re hoping the legal profession receives this research with an open mind and considers how are we all contributing to this, what our obligations are, how do we empower our clients, and how do we be the best advocates we can be,” Featherstone said.

No consistency in what is considered ‘standard’

Bargon and Featherstone shared that some lawyers they spoke to defaulted to the “standard” NDA terms in sexual harassment matters – but no two lawyers could agree on what was considered standard.

“Every person said ‘this is standard’ and the next person said ‘this is what everybody does, this is the norm’, and they were almost chalk and cheese,” Featherstone explained.

Bargon added some lawyers thought the standard terms referred to the quantum of the settlement, whereas others said it was standard for time capping and confidentiality to expire after a certain period.

“People do what they think everybody else is doing but no one is talking about it,” Bargon said.

“We don’t know what everybody else is doing.

“If people are evolving in practice, we have to make it known so they know what a standard practice is.”

In an effort to provide more consistency, Bargon and Featherstone worked with Clayton Utz to create “model confidentiality clauses”.

The clauses provide guidance on how to navigate confidentiality in NDAS but must be “tailored to the circumstances of each case”.

In her own practice, Pantechis said she has never approached a negotiation on the basis that an NDA is standard or is automatically included and will always educate her clients on their options.

“On the one hand, I have clients that really value discretion and see the value in negotiating an NDA,” Pantechis said.

“On the other, I have acted for clients who have really strong motivations to ensure there is accountability and what they experienced doesn’t happen to anyone else.

“Others that may resist an NDA are those who have experienced significant trauma and, as part of the healing process and advice they’re getting from treating doctors, it includes them being able to tell their story and not be gagged.”

Pantechis said with this in mind, it is important practitioners realise it does not have to be a “strict NDA or no NDA”.