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Guest comment: NDAs and the profession’s cultural problem revealed before Parliament

Evidence before the Women and Equalities Committee last week (28 March) paints a worrying picture of ethics in the legal profession. And by ethics I do not mean some whispy, academic notion of doing the right thing. I mean professional ethics: understanding the Code of Conduct, and the law that governs lawyer behaviour. It was a lesson crystallised at the hearing by that well known purveyor of fey, leftist nostrums, Philip Davies MP. He distilled for the lawyers ranged before him a central question: why is it lawyers are very clear about their obligations to act in their clients best interests but so unclear about their other obligations?

Because though Allen & Overy (A&O) partner Mark Mansell did a decent job of balancing the need to engage with the new-fangled idea that all was not well with non-disclosure agreements (NDAs) without breaching that holy of holies, client confidences, he still dug himself a few holes in front of the assembled MPs. The veteran employment lawyer did so by talking in the abstract about an imagined, 20-year-old agreement that was negotiated over 24-hours-plus, with one 12-hour ‘all-nighter’ session, which prohibited one party from having a copy, which contained clauses designed to inhibit and limit disclosures to the police, medical practitioners, and others. Mansell said such an agreement could be described as unusual, or very unusual, or very, very unusual. But he wasn’t able to tell us, he said, about this agreement.

He theorised plausibly, if not always with conviction, about why some of these clauses or approaches might be necessary (all-nighter? time zones? time pressures?) but could not really explain the stuff limiting complaints to the police. When pushed, he admitted that he could see why people could ‘in theory’ regard such an agreement as perverting the course of justice. But he himself had never drafted such an agreement, like the agreement the committee and him were not talking about, or about to publish on their website. He told us he would advise his clients against attending negotiation sessions where the complainant would be present (which is alleged to have happened in this case). He was not recognising, or ignoring, his professional responsibility for the tactics in a case, and that he could say – if he chose to, as he perhaps ought to have chosen to – that the client’s attendance was not proper. And there was a moment where we might have been encouraged to imagine that the naughty NDA itself was drafted by AN Other because Mark Mansell could not remember where the errant wording had come from. But again, it does not matter, it is his responsibility. And he even apologised, in that half-felt – or is it heart-felt – way that is so 2018 for any pain he might have caused poor Zelda P.

So let me grapple more with the perverting the course of justice allegation. It’s the clauses inhibiting disclosure to the police that are the problem, in my view. In broad terms, Perkins was inhibited from discussing with the police without giving Mansell 48 hours of notice, and had to limit the disclosures to a minimum. The defence seemed to be that the clauses did not stop Perkins talking to the police but that they might enable A&O to ensure her disclosures were limited to ones that were relevant to the police’s inquiries. Nice that Weinstein and or his lawyers would get to influence that. Odd that it would be offered up as a defence to the allegation of something intended to pervert the course of justice. Sadly, we will not find out now if Mr Mansell thought about a longstanding professional obligation against taking advantage of his opponent (represented, strangely by a two-year PQE solicitor); or if he considered the danger of putting in a clause which some would argue is void could mislead their opponent and so be a failing in integrity. (It is fair to say there are a number of aspects of last week’s testimony that raise questions as to the tactics and precise role of Perkins’ solicitors throughout this process).

Now some answers to Mr Davies’ point: the reason why lawyers don’t talk with clarity about obligations other than the client’s is, a), those obligations ain’t writing cheques and, b), lawyers in general have too limited a grasp of those obligations. They don’t think about or train on them nearly enough. They know they are not supposed to mislead the court and that they have obligations to disclose documents. Often, beyond that, the knowledge dries up. Hubristic senior practitioners revealing to me, with unfathomable pride, how their colleagues have not opened their Code of Conduct in 20 years. And practitioners regularly tell me I am dead right that lawyers have a problem. These people are often law firm compliance officers or recently retired partners. I feel some, indeed considerable, sympathy for Mr Mansell. He, perhaps, went too far in this case, at least as we are allowed to imagine it, and is paying a price 20 years later, but he is a product of the profession’s culture. The discomfort will pass, but let’s hope the wider lessons to be learnt do not.

Richard Moorhead is Professor of Law and Professional Ethics at UCL Faculty of Laws and blogs at lawyerwatch