Solicitors are still engaging in dubious practices around non-disclosure agreements (NDAs) and strategic lawsuits against public participation (SLAPPs), despite regulatory warnings, an event on legal ethics heard last week.
“Foolish, unethical, come-and-have-a-go-if-you-are-hard-enough adversarialism is alive and well,” said one leading commentator on ethics.
The Westminster Legal Policy Forum conference, Next steps for legal professional ethics, heard from Zelda Perkins, the former personal assistant to Harvey Weinstein whose decision to break an NDA triggered his prosecution and the #MeToo movement.
She outlined the pressure she had faced to sign the agreement back in 1998 and, as co-founder of campaign group Can’t Buy My Silence, said she was still hearing from people being put under similar pressure.
“I was recently approached by a woman who had been negotiating an exit from a [major broadcaster], who had made an attempt on her own life because of the pressures – the second attempt she had made on her own life.
“While she was in hospital, her own lawyers and the broadcaster’s lawyers presented her with an agreement reworded to say ‘In the case of your death, the funds will go to your family, as will the confidentiality provisions’. I don’t think I need to question whether that’s moral or ethical behaviour.”
Ms Perkins went on: “I do understand that lawyers in adversarial situations often forget the reality of what they’re doing but it’s key to understand the impact of NDAs is something that’s becoming clearer and clearer.
“Surveys Can’t Buy My Silence has done have discovered that 95% of people who have signed NDAs have serious mental health consequences.”
Even though the Solicitors Regulation Authority (SRA) had issued warning notices on NDAs, Ms Perkins said it was “clear that agreements are still being made in the wrong way”.
The ethics were clear, she argued, saying that the campaign was seeking both legislative and regulatory reform: “There should be no place for a legally enforceable agreement that hides harm. This is putting the integrity of law into question.”
In his address on the Post Office scandal, Richard Moorhead, a professor of law and legal ethics at Exeter University, said the problems it highlighted were “current and serious”.
He explained: “First, in recent days the Post Office and their lawyers were reminded – I am going to say warned – publicly by the SRA about their conduct; this included potentially misleading sub-postmasters whilst handling their claims.
“And the second example is even more astonishing. I am aware of a journalist reporting on the Post Office inquiry having been threatened with SLAPP- like tactics in relation to their reporting of the inquiry.
“Foolish, unethical, come-and-have-a-go-if-you-are-hard-enough adversarialism is alive and well, under our noses, from the very firms who should be more alive than any to its dangers. Complacency or perhaps hubris, rules.”
Professor Moorhead is leading the Post Office project being run by Exeter’s Evidence-based Justice Lab and also sits on the Horizon Compensation Advisory Board.
Predicting that some lawyers would eventually be struck off, and one or two face criminal prosecution, he said: “That decisions ranging between the merely questionable and the clearly outrageous should be sprinkled across so many years, within and outside the Post Office, in-house and private practice, Bar and solicitor, junior and very, very senior, suggests professional ethics is something about which practitioners are insufficiently interested, or complacent about, or insufficiently accountable for.
“The business of law is, too often, and only for certain clients… rather than truth, justice, or (for prosecutors) fairness. Business as usual means more moments like the Post Office scandal, moments buried away without the scrutiny that this extraordinary case has had.”
The legal regulators needed to answer the pressing question of how they were going to move from business as usual to making ethics a priority, he concluded.