Philip: Law firms are behaving differently as regards NDAs
A solicitor at City firm Allen & Overy involved in drafting a non-disclosure agreement (NDA) involving film producer Harvey Weinstein has been referred to the Solicitors Disciplinary Tribunal (SDT).
Paul Philip, chief executive of the Solicitors Regulation Authority (SRA), told MPs on the House of Commons women and equalities committee that the referral was made last week.
A spokesman for the SRA said afterwards that the solicitor could not be named because the SDT had not certified that there was a case to answer in respect of the allegations.
If the SDT does certify the case, the solicitor involved has 14 days to object to the referral being published on the SRA’s website.
A spokesman for Allen & Overy said it could not comment on an ongoing investigation.
Zelda Perkins, who worked at Weinstein’s film company Miramax, gave evidence to the committee last year about the NDA she signed after resigning from the company, in which Allen & Overy acted for Miramax and Weinstein.
Questioned by MPs on why the referral to the SRA had not come earlier, given that Ms Perkins gave evidence to the committee 18 months ago, Mr Philip replied that the regulator had not been able to access the NDA until a least a year ago, when he announced the investigation to MPs.
“We went through the process of investigating the matter, interviewing everyone concerned, seeking further counsel’s opinion and giving everyone an opportunity to make representations.”
Mr Philip said it was the further legal advice in the form of counsel’s opinion which triggered the referral to the SDT.
Earlier Mr Philip said he believed law firms “are behaving differently” as regards NDAs, because of the heightened awareness, the work of the women and equalities committee, the warning notice issued by the SRA and the #MeToo campaign.
He said that since the SRA’s warning notice was published in March 2018, the regulator had received 20,000 hits on the relevant pages of its website.
The SRA had also received 13 reports relating to harassment and sexual discrimination by lawyers.
“You would not have got that profile of reports two years ago. You could argue it happened before, but it was never reported to us, but now it is being reported to us.”
Matthew Smith, principal (legal) at the Equality and Human Rights Commission, said he had noticed a “real shift” in the way law firms talked about harassment.
“It’s not just about how you defend a grievance but what measures can you put in place to prevent harassment.”
Mr Philip said that the SRA’s guidance on NDAs had not changed, but emphasised more explicitly what was unacceptable.
He said it could be “quite tricky” for lawyers to speak out over something that is “unproven but looks wrong” because of professional privilege.
Mr Philip said “blanket clauses” stopping people from telling anyone anything were “quite clearly wrong” and “ex-employees should be left in no doubt who they can and who they can’t tell”.
He added that the idea of standard clauses for NDAs sounded “very sensible” and could be referenced by the SRA.
Interested in this topic? Check out the Legal Futures Masterclass on NDAs, Harassment and Whistleblowing [1]. 27 June 2019, London.