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‘Mealy mouthed’ – Law Society draws fire for ethically ‘weak’ guidance on #MeToo gagging deals

The #MeToo debate continues to garner stories with a legal slant as the Law Society’s recent practice note on the use of legal gagging contracts has been criticised for being vague to the point of unethical.

Crispin Passmore, the former executive director of the Solicitors Regulation Authority (SRA), this week slammed The Law Society’s practice note on non-disclosure agreements (NDAs) in sexual harassment cases, calling for the guidance to be scrapped altogether.

The Law Society guidance was published in January, ten months after the SRA issued its own warning notice to solicitors in March 2018 on the appropriate use of such contracts.

Passmore – until last year executive director of the SRA charged with spearheading an overhaul of the regulator – criticised the Law Society’s version for being less ethically robust than its SRA counterpart, allowing a lack of consistency among employment practitioners.

Passmore told Legal Business: ‘Employment lawyers have complained the Law Society document doesn’t help them at all. Some have complained of lawyers on the other side trying things they shouldn’t, according to the SRA notice, because they are instead looking at the Law Society’s advice.’

Richard Moorhead, professor of law and professional ethics at University College London, cited similar concerns: ‘The guidance is weak or positively unhelpful. The Law Society is on a sticky wicket. The guidance is mealy mouthed and weak on the risks of the NDA and misses out things that practitioners are concerned over, such as clawbacks.

‘It doesn’t say it’s OK to withhold the document from the parties but it keeps the door open to that possibility. It appears to contradict the SRA warning notice,’ Moorhead added.

The debate also comes amid claims that Chancery Lane effectively watered down more robust recommendations on NDAs from its employment law committee.

The episode is the latest chapter in a saga that was first triggered in October 2017 when it emerged that film producer Harvey Weinstein used an NDA to silence former employee Zelda Perkins over allegations of sexual assault against another staff member at Weinstein’s company.

The episode triggered a wider debate regarding harassment in the workplace and a series of embarrassing disclosures for the legal profession, not least due to lawyers’ role in drawing up NDAs that in some cases restricted the ability to disclose wrongdoing to the authorities. The SRA last month recommended that an Allen & Overy solicitor that drew up the NDA that Perkins signed should be prosecuted before the Solicitors Disciplinary Tribunal.

Speaking to Legal Business this week, Perkins (pictured) said: ‘The environment has never been so primed and open for changes to be made. The Law Society, by publishing such weak guidance, is in danger of looking like they have a vested interest in not reforming ethical practise around NDAs.’

Passmore has called for the Law Society to withdraw the notice and use the SRA version instead. ‘The Law Society could amend its practice note and make it consistent with the SRA warning notice. What does it really add? The time would be better spent working on standard clauses for NDAs. The Law Society can’t let go of the fact that they’re not the regulator anymore.’

Responding to earlier claims that the Law Society had bowed to pressure from lawyers to soften the provisions, Passmore said: ‘Most solicitors are ethical and want to do the right thing. I don’t think that solicitors lobbied for a softening of the practice note, I think the Law Society took it upon itself to word it so that solicitors can do whatever they want.’

Passmore has also urged the Law Society to respond to industry concerns. ‘I have tried to engage with the Law Society on Twitter and email but I’ve had absolutely zero response, not even a “thanks but no thanks” acknowledgement. It just smacks of being inward looking.’

Aside from a sustained debate over the role of NDAs, the legal profession has seen a string of embarrassing disclosures of sexual harassment over the last 18 months, impacting a string of major firms. Today (15 May) the International Bar Association published what it claimed was the largest survey of harassment in the legal profession, concluding that bullying and sexual harassment are rife at a global level.

For more on the murky world of gagging agreements, read ‘Draining the Swamp’