It is undoubtedly the case that a big part of the current debate on sexual harassment in the workplace centres around non-disclosure agreements (NDAs), or confidentiality clauses as the Government prefers to call them. In some respects the issues around these clauses are matters of perception. For it has always been the case that those who sign up to these agreements are not prevented from subsequently going to the police, or speaking to the relevant Regulators, or consulting their medical practitioner for the purposes of obtaining medical advice or making a “protected disclosure” pursuant to our “whistleblowing” legislation.
The ethical obligations of solicitors change over time. What was acceptable 20 years ago may no longer be so today. This is demonstrated starkly by the recent sea change in attitudes to Non-Disclosure Agreements.