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The Ethics of Buying Silence

Document Type

Article

Publication Date

2021

Publication Title

ABA Criminal Justice

Abstract

Investigative journalists and the many victims who have come forward in recent years have revealed a widespread pattern of workplace sexual misconduct by men. Two industrious New York Times reporters, Jodi Kantor and Megan Twohey, provide a detailed account of their investigation of Harvey Weinstein’s serial sexual offenses in their book entitled She Said. A central theme of the book is that nondisclosure agreements—under which perpetrators essentially buy the silence of victims of illegal conduct— are pervasive, present an enormous barrier to enforcement of laws banning sexual harassment and assault, and enable serious misconduct. In this ethics column, we examine the ethics of lawyers using such nondisclosure agreements (NDAs). We conclude both that it currently is and should be unethical for a lawyer to use the sort of agreements revealed in She Said.

Keywords

Ethics, Professional Responsibility, Nondisclosure Agreements, NDA, NDAs, Weinstein, Harvey Weinstein, Sexual Misconduct

Publication Citation

Peter A. Joy & Kevin C. McMunigal, The Ethics of Buying Silence, 36 ABA Criminal Justice 57 (2021)

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