City heavyweight Allen & Overy (A&O) is under investigation by the Solicitors Regulation Authority (SRA) for its conduct in the Weinstein saga, the regulator’s chief executive has admitted to a Parliamentary committee.
The investigation into the firm’s handling of the non-disclosure agreement (NDA), drafted by A&O employment partner Mark Mansell for Hollywood film producer Harvey Weinstein, came to light today (25 April) as the Women and Equalities committee questioned SRA boss Paul Philip during an evidence session.
This was the second Parliamentary hearing in as many months as part of an investigation into the use, and potential abuse, of gagging orders in sexual harassment cases.
A&O had in 1998 acted for 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 SRA last month issued a warning notice reminding lawyers of their responsibility to ensure that, among other things, these agreements are not used to prevent the signatory from reporting to the regulator or the police in the event of alleged sexual misconduct, shouldn’t prevent the person having a copy of the NDA or making a protected disclosure and shouldn’t be used to prevent the person from co-operating with a criminal investigation.
These were all criticisms levelled against Mansell and the NDA he drafted at the previous Parliamentary evidence session. But today, the select committee heard that the matter was referred to the SRA last November and the regulator decided to take no action.
‘How on earth can you sit here today saying all those warm words when you’ve got here [the Weinstein NDA], right in front of your nose, the clearest example of the things that breach your warning notice, that you’ve said yourself is professional misconduct?’ questioned Philip Davies MP of the SRA boss.
‘Outside of this room, you see a big law firm and you don’t decide to take any action against them? How can you… look us in the eye about this particular issue when you’ve singlehandedly done nothing?’
Maria Miller MP, paraphrasing a letter from A&O’s Mansell to the committee not published with the other evidence, said Mansell wrote that the firm and its compliance officer had met with the SRA to discuss the issues but that, following the meeting, the SRA communicated it did not intend to take any further action, without providing more information.
Miller flagged a possible contradiction around the SRA’s involvement, having contacted the regulator yesterday.
‘The slightly contradictory information is that there might be an open case,’ said Miller. ‘We’re therefore quite concerned that either Allen & Overy are unaware of this or, I would hate to think, that they’ve misled the committee.’
Philip then admitted A&O was currently under investigation. He added that the SRA spoke to A&O and the compliance officer on 28 November but ‘decided at that point in time we would wait to see what further information came to light. Further information subsequently came to light and we opened up the case.’
When questioned, Philip also admitted that the SRA had not asked to see a copy of the NDA at the time of the November meeting when making that decision.
‘I suspect at the time the issue was whether or not taking action against the law firm was proportional, given the age, but given the seriousness of concerns I think at that point in time we should have asked them for it [the NDA], I agree with you.’
Detailing the meeting with A&O and the compliance officer, Philip said: ‘They very usefully gave us lots of information about the types of procedures you would expect to be in place at a large law firm in relation to this type of thing today, but this matter happened 20 years ago.’
But Davies observed: ‘It leaves a taste in the mouth… that the SRA and its relationship with solicitors is like some sort of cosy old boys network kind of thing, where they’re scratching each other’s backs and not really taking anything seriously.’
Philip declined to offer any more detail about the investigation, saying it would be ‘inappropriate’ to discuss an open investigation. When questioned on the timeframe, Philip said: ‘A matter of weeks, perhaps months’.