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‘A morally-lacking agreement on every level’ – A&O squirms as Parliamentary committee turns up pressure on NDAs

Some awkward headlines are inevitable for Allen & Overy (A&O) thanks to its role in the Weinstein saga after one partner was questioned before a Parliamentary committee investigating the use of non-disclosure agreements (NDAs) in harassment cases.

Mark Mansell, the employment partner who was part of the A&O team that drafted the NDA for film producer Harvey Weinstein, was questioned today (28 March) during a hearing by the Women and Equalities Committee for its inquiry into harassment in workplaces.

A&O had in 1998 represented the producer after Zelda Perkins, who had worked at Weinstein’s company, Miramax, alleged knowledge that Weinstein had sexually assaulted a colleague at the company. Weinstein denies that he engaged in non-consensual sexual acts.

The Weinstein allegations have since the autumn triggered a wider debate around the treatment of women in the workplace and thrown uncomfortable focus on the legal profession’s record, both in stamping out abuse but also in crafting controversial gagging settlements.

Mansell was repeatedly pressed by the committee on if he regretted the controversial handling of the NDA binding Perkins. The veteran employment lawyer responded: ‘Looking back I would make it clearer that the ability to participate in a criminal process was not in any way restricted.’

Mansell was questioned on the terms and legality of the NDA that included the following clause:

‘if any criminal legal process involving Harvey Weinstein or Miramax requires [Perkins] to give evidence she will give 48 hours’ notice to Mark Mansell, a lawyer at Allen & Overy, before making any disclosure’.

‘[i]n the event her evidence is required, you [Perkins] will use all reasonable endeavours to limit the scope of the disclosure as far as possible’ and she will give ‘reasonable assistance to Miramax if it elects to contest such a process.’

Mansell maintained that he would not have allowed anything to go into the agreement beyond his professional ethics but conceded: ‘I can see that in theory people might perceive this as perverting the course of justice.’

Perkins described the document itself as ‘a morally-lacking agreement on every level’. MPs highlighted the fact that, according to the NDA, Perkins was not allowed to discuss the nature of what passed between Weinstein and herself with anyone – even a doctor or a counsellor – without that medical professional themselves signing an NDA. Employment specialists including Max Winthrop, chair of the Employment Law Committee of the Law Society, Suzanne McKie QC, founder of Farore Law, and Gareth Brahams, chair of the Employment Lawyers Association and managing partner at BDBF, agreed that these terms went further than most NDAs in their experience.

The key question hangs over the claims that Perkins was left with the idea that the NDA meant a criminal investigation was more difficult to pursue. Such claims have sparked calls for reforms on how lawyers communicate with clients.

‘I want it made bold [in all NDAs] that this doesn’t prevent you going to the police,’ McKie told the committee. New guidance this year from the Solicitors Regulation Authority has warned lawyers about using such gagging agreements to cloak criminal activity.

‘I’d be very concerned about it. I don’t know if I would characterise it as unlawful, I’d have to think about that, but it wouldn’t be an agreement I’d advise a client to sign. Unethical? Yes, probably,’ said Tamara Ludlow, a partner at Simons Muirhead & Burton, the firm that represented Perkins, told the committee.

Perkins told the MP that, after meeting a partner at Simons Muirhead, the bulk of her case was handled by a junior lawyer at the firm. The partner who originally dealt with Perkins was not in attendance at the hearing.

Committee chair Maria Miller MP echoed the sentiments of many in the room when she addressed Mansell: ‘The SRA simply restated what professional people like you should have done for years’. With major law firms involved in a string of episodes of alleged abuse this year, this debate is far from over.