The woman who first broke a Harvey Weinstein non-disclosure agreement (NDAs) has strongly criticised the Bar Council for dismissing the growing evidence of NDA abuse.
Writing for Legal Futures, Zelda Perkins argued instead that “the comfortable ‘NDAs are fine’ consensus appears to be breaking down among individual practitioners”.
Together with Dr Julie Macfarlane, with whom she co-founded the pressure group Can’t Buy My Silence, Ms Perkins added: “The ethical conduct of lawyers has always been much wider than simply getting away with avoiding doing something illegal.”
Responding recently to the Legal Services Board’s (LSB) call for evidence on NDAs, the Bar Council insisted that the oversight regulator has “no role” in “attempting to control or regulate lawyers involved in assisting clients in the lawful use of NDAs.
The Bar Council described the call for evidence as “freighted with assumptions founded on anecdote and headlines”, while failing to reflect “the many good reasons” why NDAs were used by parties on both sides.
Ms Perkins was Weinstein’s personal assistant and signed an NDA to settle her claim against him and his film company Miramax in 1998. She broke it in 2017 to speak out about what she had faced, triggering his prosecution and the #MeToo movement.
In the joint blog with Dr Macfarlane, Ms Perkins observed that the Bar Council response “scoffs at the idea (describing it as ‘very muddled thinking’) that some NDAs might be illegal or unenforceable, and questions why the SRA [Solicitors Regulation Authority] has issued any advice at all”.
They continued: “We see NDAs that not only circumvent protected disclosures under whistleblowing legislation, but are so broad (no exceptions, even for talking to family members or a therapist) and unreasonable (an NDA is always a forever gag), as well as negotiated between parties of widely disparate bargaining powers, they are of questionable legality.”
Contrary to the Bar Council’s claim of little substantive evidence of NDA misuse, they said Can’t Buy My Silence has gathered survey data from almost 2,000 individuals and detailed personal testimonies from nearly 100 others.
“This data is highly consistent, describing many characteristics which call the legality of their NDA into question…
“Tellingly, NDAs are becoming so ubiquitous that one third of survey respondents say that they passed on making a formal workplace complaint because they anticipated being required to sign an NDA.”
The pair also said the Bar Council’s own claim that limiting NDAs would mean cases no longer settling was itself anecdotal, as well as “illogical”, and contrary to the evidence.
“As we continue to work on similar law reform in England and Wales, we welcome the efforts of the LSB and the SRA to try to rein in the worst practices, and strongly disagree with the Bar Council that, unless and until NDAs are rendered unenforceable by legislation, nothing should or can be done.
“The ethical conduct of lawyers has always been much wider than simply getting away with avoiding doing something illegal.”
The blog also questioned what barristers thought of the Bar Council’s position: “We hear from lawyers every week that they have changed their mind about NDAs having read our evidence about the long-term effects on complainants of being told they can never speak about what happened to them.”
Read the blog in full.