Comment: Depressing end to Weinstein gagging order narrative means closure for none

The whimpering conclusion to the three-year saga that dragged City law into the middle of #MeToo could hardly have been more frustrating for everyone concerned.

The Solicitors Disciplinary Tribunal (SDT) said on Thursday (14 January) it had decided to stay proceedings against Allen & Overy employment veteran Mark Mansell (aka Solicitor Z) relating to a non-disclosure agreement drawn up for disgraced Hollywood producer Harvey Weinstein in 1998. The grounds – Mansell’s ill health meant that continuing with a trial posed a significant risk to his life. 

The high-profile case began in October 2017, with disclosures by British producer Zelda Perkins (pictured) about the questionable gagging order she had signed following sexual harassment claims against Weinstein.

What followed made it much more than a cause célèbre. Mansell became an unwilling poster boy for ethics concerns around NDAs as details of the contract came to light during a grilling by the Women and Equalities select committee.

In brief, the questionable clauses, according to the SRA: ‘In the context of a serious allegation of sexual assault, a solicitor acting for an employer was guilty of misconduct because the settlement agreement, on the SRA’s interpretation of the relevant clauses, purported to restrict the complainants’ ability to report the alleged crime to the police, co-operate fully with criminal proceedings and obtain medical treatment.’

The select committee’s condemnation of the SRA for its relationship with City law firms as being ‘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,’ was crucial. It played no small part in the regulator being forced to not only issue strict guidance on the drafting of NDAs but also launch an investigation and ultimately recommending Mansell to the SDT for prosecution.

It is sad that, with so many reputations at stake, it is unlikely now that all concerned will not have the opportunity to publicly argue their corner and clear the air.

However John Gould, senior partner of Russell Cooke, did issue a statement on behalf of his client, Mansell: ‘Our client is a senior and highly respected solicitor with an unblemished thirty year professional career. Our client is and remains of the view that the proceedings are misconceived and should never have been brought.

‘It is not disputed that our client did not propose the now-controversial wording; his position is that it came from A and B’s lawyers. The SRA decided not to take action against A and B’s solicitors and none of the other lawyers involved have been subjected to disciplinary action by their regulators.’Related  Letter from… Frankfurt: Where political deadlock is fine for business… but not all lawyers

Although closure is doubtless lacking, the reason for the case being stayed could not be more justified. A health crisis has sprung from the pandemic and any situation that adds to that is not to be recommended.

But for Perkins, a lot of answers remain frustratingly out of reach:  ‘This ruling effectively highlights that the disparity of arms that I suffered 23 years ago is still in place…both the SRA and SDT agree on the fact that there is a serious case to be answered.’

Richard Moorhead, professor of law and professional ethics at the University of Exeter and a former director of UCL’s Centre for Ethics and Law, argues that this could still be seen as a victory of sorts for the SRA in that the SDT has conceded that there is a case to answer.

‘What matters now is what happens going forward and whether law firms will take seriously how they are drafting NDAs. The recommendations for regulation around NDAs has gone quiet and the Law Society’s guidance still hasn’t been reviewed. But it’s not necessarily all bad news. The SRA has reinforced its warning notice on the drafting of NDAs so it clearly hasn’t let go of this issue. It has caused people to take notice.’

Perkins echoes the point: ‘I have always maintained that the only way of solving the issue with NDAs is tightening and clarifying regulation and making tougher legislation, but it is clear that the white-collar establishment is not prepared to lose this useful tool.’

For the SRA’s part, an uncharacteristically outspoken statement strikes a bullish note – the battle is not over: ‘In 2018, the SRA issued a warning notice on the use of non-disclosure agreements and continues to investigate a number of solicitors in respect of allegations related to breaches of that warning notice. The SRA expects that those it regulates will have careful regard to that notice and to their professional obligations when dealing with such matters.’

Let’s hope that, once this case fades out of the public eye, employment lawyers and law firms alike will be just as minded to tread with such care on the drafting of NDAs as when the shockwaves of the Weinstein drama first shook the profession.

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