Big Sis Briefing: The NDA Question Every In-House Lawyer Will Face
There are books that feel urgent and then there are books that simply confirm what you already know if you have been paying attention.
How Many More Women by Jennifer Robinson and Keina Yoshida sits squarely in the second category. I just finished reading it over the Summer holidays.
Not much in it will shock an in-house lawyer who has spent time close to power, complaints, investigations or settlement discussions, particularly where poor behaviour in the workplace has been quietly managed and NDAs have been deployed to keep things clean and tidy.
What the book does is remove any remaining illusion we may have once held. The misuse of NDAs to silence workplace misconduct, especially sexual harassment or abuse, is no longer fringe territory, nor someone else's problem or an issue for the courts to clean up later.
It is real and it is here. It has probably already crossed your desk.
I am also conscious that in-house lawyers are busy, carry operational risk, commercial pressure, stakeholder management and decision fatigue all at once and that ethical reflection often slips down the list when everything else feels so urgent.
That reality is precisely why this topic matters.
I speak about mentoring, leadership and career longevity, but none of that matters if we do not also speak about the ethical line that in-house counsel are expected to hold, often quietly and often alone.
The role we tell ourselves we have
In Australia, in-house lawyers are taught early that our first duty is to the court, that professional obligations do not evaporate because we are salaried employees and that we are a "moral and ethical compass" inside organisations that are, by design, profit-seeking.
That framing sounds noble and neat. The lived reality is usually neither.
In practice, the in-house lawyer is often asked to translate legal and ethical risk into commercial language, to make problems manageable and to help the business move forward with confidence. Most days, that works but some days, it does not.
NDAs sit at the centre of that discomfort for us because they sit at the intersection of law, power, money and silence.
Why NDAs require recalibration now
Non-Disclosure Agreements (NDAs) exist to protect legitimate interests: confidential information, commercial strategy, reputation where no wrongdoing has occurred.
The problem is how often they are now used in contexts where the conduct is not merely embarrassing or inconvenient but unlawful, exploitative or harmful, and, crucially, where the power imbalance between employer and employee is stark.
The question is no longer whether these agreements are enforceable, but whether their use is defensible, and by extension, whether the lawyers who draft, recommend or rely on them have discharged their ethical responsibilities.
This is where the in-house role becomes uncomfortable, because the gap between legal soundness and ethical defensibility is real and it is widening.
The question no one prepares you for
What happens when you advise a company not to take a particular course of action and the company decides to proceed anyway?
This is not an abstract ethics exam question.
It is a real scenario that plays out in boardrooms and executive meetings, often with polite language and commercial logic masking the underlying issue.
Some lawyers of years gone by have made a clear choice in those moments. They negotiated their 'golden parachute' exits, accepted a substantial payout, effectively handed back their practicing certificates and walked away financially secure but professionally compromised.
The mechanism is straightforward: you stop being a lawyer, you sign your own NDA and the conduct you could not endorse in your professional capacity becomes something you are contractually bound not to discuss in any capacity.
Others did not see the cliff edge until they were already falling, having slowly normalised decisions they would never have endorsed in isolation.
There is a category in between that is harder to talk about: lawyers who drifted into untenable positions through incremental compromise, through loyalty, through pressure or through the belief that someone else would step in before it became truly serious.
If you have worked in-house long enough, you recognise how easily that can happen and how thin the line can feel between principled pragmatism and ethical failure.
It is impossible not to think, "but for the grace of God go I".
What "thinking about fairness" actually looks like
One of the most difficult questions raised by NDAs in workplace misconduct matters is whether the individual signing truly had a choice. Money changes circumstances. It does not neutralise power. Silence can be pragmatic but is it always freely chosen?
Acting for the employer does not relieve in-house lawyers of the responsibility to think about fairness, independent legal advice and whether the process itself creates harm, even if the document is legally sound.
But what does "thinking about fairness" actually look like when you are drafting that settlement agreement at 11pm on a Friday, under pressure to have it signed by Monday, with the CEO asking whether this will make the problem go away?
What if you are working in a global organisation where head office sits offshore, decision-makers are distant from the local legal and social context, and speed and consistency are valued more than nuance? Your practicing certificate does not travel so your exposure remains personal.
I think that looks like asking yourself questions that will absolutely make you unpopular:
Has the employee received genuine independent advice?
Is the quantum sufficient to reflect not only financial loss but the reputational and psychological cost of staying silent about trauma that may be ongoing?
Does the confidentiality clause prevent them from speaking to regulators, law enforcement or health professionals?
Are you drafting a settlement agreement or are you drafting a mechanism to insulate your client from accountability?
Sometimes the least bad outcome is still bad. Recognising all of this matters and it matters before you send the draft. You cannot discharge your own ethical obligations by outsourcing this to your favourite employment lawyer too. That would be far too easy.
Learning before it becomes personal
Ethics CPDs often fail us in-house because they sit too far from our reality.
They focus on rules rather than pressure, on hypotheticals divorced from our careers, mortgages and professional reputations.
What the next generation of in-house lawyers needs is the chance to think through these scenarios before they become personal. Not "would you draft an NDA in a sexual harassment case?" No, that is far too clean.
Instead, try this on: "Your CEO has verbally agreed to a settlement with a former employee who alleges sustained sexual harassment by a senior executive who generates 30% of the company's revenue. You have been asked to document the agreement over the weekend. The individual has been offered $100,000 and a confidentiality clause that includes a non-disparagement provision. You have raised concerns about whether the individual has had independent legal advice. You are told this will be addressed but that the business needs certainty and the agreement must be signed by Monday. What do you do?"
That is the scenario worth workshopping, because that is the one where the ethical line becomes a professional and personal calculation and not an abstract principle.
The cost of holding that line is not theoretical.
It can cost you your job, your influence and certainly, your comfort.
Ignoring the question does not remove the cost. It only delays it.
A final reflection
This is not about being perfect or fearless in the face of ethical complexity.
It is about being intentional and proactive.
If you work in-house, assume that you will encounter this issue in some form. So, read widely on the issue, speak to ethics counsellors (resources below) and pay attention to the direction of travel (cultural expectations, shifting societal norms and the zeitgeist) and not only the current law.
Most importantly, decide in advance what you are prepared to carry and what you are not.
The question is not whether you will face this. The question is whether you will recognise it when you do.
Your ethical line is easier to hold when you have already drawn it.
✨
Mel
Resources for Australian Lawyers
Ethics Guidance and Support
Victoria: Law Institute of Victoria Ethics
Queensland: Queensland Law Society Ethics Centre
South Australia: Law Society of South Australia Professional Conduct
Western Australia: Law Society of Western Australia Ethics
Northern Territory: Law Society NT Professional Standards
Workplace Misconduct and NDA Reform
Key Reading
How Many More Women by Jennifer Robinson and Keina Yoshida (Allen & Unwin, 2024) - Essential reading for understanding how NDAs have been weaponised to silence workplace misconduct and why in-house lawyers often sit at the centre of that mechanism
Australian Solicitors Conduct Rules - (varies by state - check your local law society)
