Reed Smith’s appointment as Secretariat to two BBC’s Internal Inquiries into the Savile saga raises an interesting set of ethical dilemmas. The reviews are avowedly independent and yet Reed Smith according to the Legal Week story have long term relations with the BBC. Rob Wilson, the Conservative MP for Reading East, has reportedly raised issues about the perceived impact of this appointment with Chris Patten.
On one level Reed Smith’s knowledge gained through their handling of litigation for the BBC and though a number of secondments of its lawyers to the Beeb may mean the Inquiries have a better immediate grip on how things may work behind the scenes. It may make the process a bit cheaper. Conversely, there may potential for normal cognitive biases to influence Reed Smith lawyers towards seeing things in the way that their client has seen things. I do not suggest bias in any sinister or conscious sense, just that Reed Smith may be more likely to see things as the BBC have seen things. Conversely the opposite is possible, a tendency to see bodies buried where they may not be (because they come from the mindset which spots problems for this particular client).
So in one sense, our view on this might depend on one’s belief about the relative benefits versus the potential detriments of using a firm with some inside knowledge. It should also be emphasised that the firm are acting as Secretariat, not investigator per se. Their work will – it is to be expected – be subject to a significant degree of forensic scrutiny.
There are a number of potential bear traps down the line. Has the BBC waived professional privilege by appointing RS to the inquiry? I can conceive of an argument which says that there should be absolutely no impediment in Reed Smith conducting the work and so privilege either has been waived impliedly or ought to be waived expressly. Another issue is what happens if their investigations expose wrong doing outside of the terms of their remit? This was, on one interpretation, what happened when News International had (then) Harbottle and Lewis managing partner, Laurence Abramson, independently investigated Clive Goodman’s allegations against News International (I have blogged on that here). Whether or not Abramson did anything wrong, quite a few of the later problems arose from that investigation and the way it was then used by the client, News Group International. Reed Smith and those leading the Investigations may need to be very clear on what they will do if their review discloses potential wrongdoing outside the terms of their remit.
Ultimately, in terms of professional regulation, there is the problem of conflict of interest. The SRA rules are here. Should Reed Smith have had any involvement in prior matters which are associated with the two investigations then the likelihood of an actual or potential conflict between their own interests and the clients grows significantly. There may, however, be no problem of solicitor client conflict if there has been no such involvement. What of a conflict between the BBC and the Inquiry itself? Are they two current clients whom there may be a conflict between? A not unrelated question is who is paying for this work?
It is an interesting question: who is the client in relation to the Investigations? Is it the Investigation itself, the chair of the Investigation, or the BBC? If not the BBC, at what point is there a substantial risk of a conflict between the BBC and that other client? My initial reaction: one has to do a bit of intellectual gymnastics to think that the answer is not immediately. It might be argued that there is a substantially common interest between the BBC and the investigation lead, but that is a rather strained interpretation and difficult to know in advance of the Investigation itself. The safer thing to do would be to not act; particularly in the absence of a very strong rationale for having this particular firm taking the work. If there is some risk and not much benefit, why have any risk of conflict?
Ultimately there is also the important perception problem: will the investigation be seen as independent if a firm with a prior relationship with the BBC has a pivotal role in the case? Again, the answer seems obvious – there is a significant problem of perception, although there may be some countervailing benefit which outweighs this concern to whoever the client is. In identifying that we keep returning to the key question: why is it in the interests of the Inquiry that this firm get the job of Secretariat?