Guest post by Professor Richard Moorhead, professor of law and professional ethics at the Faculty of Laws, University College London
The Linklaters v Mellish case has brought the issue of how law firms deal with sexual harassment, and how the courts deal with confidentiality, back into the spotlight.
The case concerns Frank Mellish, formerly director of business development and marketing at Linklaters. He didn’t last long, being employed in March 2017 and given six months’ notice in June 2018. As part of this arrangement, he received a substantial ex gratia payment.
We hear nothing further about this other than, having received his final termination payment last month, he apparently emailed the senior partner and firm-wide managing partner to express concerns about his termination. He thought it might effectively end his career given his age (he is in his late 50s). And he then dropped his bombshell.
In the words of the judge, Mr Justice Warby, he indicated an intention to share his “impressions of the current culture at Linklaters”, especially its “ongoing struggle… with women in the workplace”, through interviews to be given in February to media outlets unknown.
He also identified three specific examples he would be using to demonstrate Linklaters’ culture. These he calls the Munich incident, the NY settlement, and the London settlement. The Munich incident is well known, it involves a (now former) partner’s sexual assault, which led to a three-year prison sentence.
Linklaters seeks an injunction. Mr Mellish does not appear, nor is he represented. As far as we can tell (the judgment is not very clear on this), the injunction is to prevent the identification of the complainant, those lawyers complained against, and, “any detail as to the internal discussions within Linklaters as to their public response to any third-party interest or questions in relation to any of the above matters”.
Mr Mellish was on Linklaters’ executive committee, so he would have interesting things to say about such discussions aplenty, one might surmise.
What the injunction does not prevent, in theory anyway, is, “the discussion of some issues which the defendant has said he wishes to raise, and the disclosure of some information about one of the topics covered by the order, even though that information may originally have been confidential in nature”.
The basis of the injunction is Mr Mellish’s contract of employment, which contained a clause prohibiting from disclosing confidential information gained in the course of his work.
I am not going to dwell on that. It seems pretty clear that Mellish has confidential information and that some of the points he would make might actually or implicitly disclose confidential information.
The interesting issue for me is what is being protected here, and why the court felt it could make an order for an interim injunction. I should emphasise the interim nature. The case is listed to come back on 11 February for fuller consideration.
It is important to note too that two of the anonymous complainants were consulted about the prospect of publication and, Linklaters indicated, “neither wished information about their cases to be made public”.
The Munich complainant was not approached “out of sensitivity”. The judge states: “It can easily be assumed that the individual concerned would not wish their identity as the victim of a sexual assault to be revealed.”
In essence, the judge indicates that to satisfy himself that an injunction should be awarded, he must be satisfied that the information to be disclosed is confidential and that Mr Mellish threatens or intends to misuse it.
Interestingly, it is recorded that Mr Mellish indicates he intends to abide by his contractual obligations, so the court has no reason to doubt he would show some restraint. And there is no evidence that he intends to identify the complainants or, indeed, specific partners involved.
Yet that is what the bulk of the injunction seems to cover. What seems much more likely is that he would publish information or opinion which comes close to detailing “internal discussions within Linklaters as to their public response to any third-party interest or questions in relation to any of the above matters.”
This is the bit of the injunction that has teeth, and will chill any discussion of Linklaters’ culture.
In other words, I think it reasonable surmise that the injunction is most likely aimed at information that would embarrass Linklaters generally rather than reveal confidential information about complainants or indeed their actual and/or alleged assailants.
If I am right about that, then this is a case that is really about Linklaters’ reputation, which they are seeking to protect by means of a confidentiality clause. It is not the kind of case for which injunctive relief is really necessary or appropriate.
In the main, the judge does not address the possibility that this is what is going on. He recognises that he should not award an injunction if this is really a defamation case in disguise, but does not link that to the concern to protect Linklaters’ reputation.
The closest he comes to grappling with the problem is this: “It may well be possible to speak publicly in general terms about the ‘culture’ at Linklaters, or any other large firm or organisation, without breaching duties of confidence.
“But although the defendant has claimed that he intends to observe his contractual obligations, it is not easy to see how he could do so if he were to illustrate his points by reference to the three areas which he specified in his correspondence.
“These all related to present or former employees or partners of Linklaters, and the information referred to was of an inherently sensitive and confidential nature.”
The judge does not appear to consider the possibility that the incidents could be discussed anonymously, without identifying facts being disclosed.
It is true that the judge does say, towards the end of the judgment: “The claim is partly motivated by concern for the reputational harm disclosure might cause, but that is not the sole or main purpose behind this application, which I did not regard as an abuse of process.”
That point needs a better foundation in fact and argument. He needs to show he really considered that possibility. Absent a substantial concern that Mr Mellish intends to identify individuals, it is strongly arguable that the main motivation is to protect reputation not confidences.
Instead, he tends to emphasise the need to protect the complainants, claiming: “There are strong policy reasons for upholding those legitimate expectations, to encourage genuine complainants to come forward rather than risk having sensitive material of the kind in issue here made public by a third party, against their wishes and (on the evidence) without consultation.”
He does not consider the possibility that stifling a discussion of firm culture is more likely to inhibit the coming forward of complainants.
Judges need to think more carefully if protecting the reputation of men, whilst claiming to protect the interests of women.
This post first appeared on Professor Moorhead’s Lawyerwatch blog