Buying Secrecy

Non-Disclosure Agreements, Arbitration, and Professional Ethics in the #MeToo Era

We’ve heard the horrific reports of sexual assault on children, women, and men, in the context of the workplace, Hollywood, sports, and even sacred places. But often these incidents took place many years ago, and we are just now learning why and how because of secret settlements. Deals reached in private to buy secrecy in exchange for the release and dismissal of claims; oftentimes through private and alternative dispute resolution (“ADR”) processes such as negotiation, mediation, or arbitration. In most cases, the parties are represented by lawyers, loyal advocates, who are also officers of the court, and third-party neutrals serving as mediators or arbitrators who administer the dispute resolution process. While the immediate cases were privately resolved, the accused harasser/predator remained at large.

This paper examines the role, use, and possible misuse or complicity of lawyers, neutrals, and ADR in the process of procuring and enforcing “secret settlements” in cases that effectively shielded predation, harassment, and other misconduct and left similarly situated non-parties at risk. This Article examines the existing rules, structures, and rationales for confidentiality and private dispute resolution, alongside the ethical considerations for lawyers, neutrals, and the ADR process in reaching and enforcing “secret settlements.” The paper then explores the legal and ethical considerations for the professionals involved in situations where a secret settlement or provision for nondisclosure leaves similarly situated nonparties at risk. The Article counsels that lawyers, neutrals, and ADR consider the impact on others and protection of vulnerable persons from potential harm as professional ethics obligations in the advocacy and representation of parties to private settlements in order to ensure integrity of people, process, and substantive outcomes.

a Professor of Law and Director, Entertainment, Media & Sports Law Program, Pepperdine University School of Law. The author thanks her students Catherine Price and Nicholas Tsiouvaras for their helpful research assistance. The author also appreciates the feedback on this project given by colleagues at the American Association of Law School, Dispute Resolution Section, 2019 Works-in-Progress Conference held at the University of Nevada Las Vegas.

The full text of this Article is available to download as a PDF.