Firms reported for oppressive “pre-emptive” NDAs imposed on actors

Freeman: Disgraceful behaviour

Law firms at the heart of forcing oppressive non-disclosure agreements (NDAs) on actors have been reported to the Solicitors Regulation Authority, it emerged yesterday.

Sophie Freeman, who advises the Personal Managers Association, which represents 250 theatrical and film agents across the country, said she had been “absolutely shocked” by the use of NDAs by production companies.

Yesterday’s Legal Services Board’s Reshaping Legal Services conference also heard that it was a handful of firms behind so-called SLAPPs (strategic lawsuits against public participation) as well.

Ms Freeman, who practises at the law firm The Legal Director, said she came from an intellectual property background and so was used to putting NDAs in place “to protect information and give value to that information” – what she described as “the best use of an NDA”.

However, once she started acting for the Personal Managers Association, she was “absolutely shocked [by] the disgraceful behaviour” in the use of NDAs”.

She explained: “They’re now not brought in after the offence [like Harvey Weinstein did]. The actor turns up the door, might be 17, 18 years old, [and is told] sign this or you don’t get an audition. It is pre-emptive.”

The NDAs will contain indemnities, transfer intellectual property and address data protection issues.

Ms Freeman added that a lot of these NDAs were not enforceable. “So it’s not like they’re even misusing the law, they’re hiding it in plain sight. It’s just pure bullying because you’ve got lawyers on your side and that’s what makes me so angry.”

But she argued that these lawyers were “not doing their clients any service either because the clients don’t actually have enforceable contracts”.

This approach has translated into the contracting process in the entertainment industry too, the solicitor continued.

“I’ve had instances of actors being kept in a room and being made to sign documents that they can’t read – they don’t understand because they’re American first of all – and then made to hold up the contract and have a photograph taken of them with a smile on their face.”

Ms Freeman said lawyers would not be in the room when actors were asked to sign the agreements.

She said there were “two or three firms of solicitors that are right at the heart of this” and act for all the companies. She said she had considered it her professional duty to report them to the Solicitors Regulation Authority.

Charlie Holt, European lead at the Global Legal Climate Defense – who has been active in the campaign against SLAPPs – said that “if you look at any high-profile example of an abuse of power which is exposed, invariably preceding that exposure you’ll find a pattern of legal intimidation and abusive lawsuits being filed. This is a systemic issue”.

He said “the same law firms and the same lawyers [are] popping up time and time again”.

There was agreement on the panel – which also included barrister Tetyana Nesterchuk of Fountain Court Chambers – that while regulation could help law firms act ethically, culture was more important still.

Ms Freeman said: “The regulation is only one piece and it’s very easy to blame the regulators because that’s the obvious kind of fallback. But actually how much responsibility should be taken from within a firm, a practice, a chambers, wherever you are practicing from in order to set the tone?”

Ms Nesterchuk argued that the requirement to act with integrity expressed “a higher standard which a society expects of members of legal profession”.

She continued: “Integrity requires slightly more than simply following the strict black-and-white letter of the law… You could be advising the client within the confines of the law, but there comes a point where you have to think, does it pass the smell test?

“That’s what I always have to ask myself, is this something that I’m comfortable doing? And the moment you get uncomfortable, you have to ask yourself why.”

We reported earlier this week that a campaign group has urged the legal profession to support legislative reform to stop the abuse of NDAs.

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