NDA hearings: Perkins, Mansell and the Missing Man

I tried last night to tweet points of note from the evidence given by Zelda Perkins (complainant against Weinstein); Mark Mansell (Partner, Allen & Overy, drafter (in part at least) of the now infamous NDA; and others in the Now listening to Zelda Perkins evidence. You can watch the evidence for yourself. It’s well worth doing so, if only to watch a series of lawyers grappling with explaining their professional principles and rules. Mr Mansell will be expecting a few very uncomfortable passages to be written about him in the eventual report. I will be writing more about that in due course. For now, I am confining myself to reconstructing my tweets from last night, as I think some will find the summary of points made in the session of interest. I will make a few general points at the end. I should say I tweeted only those points that struck me as new or particularly interesting. It was not an attempt to create a comprehensive summary. Secondly, where my tweets are unclear I have sought to clarify them (although this is rare, it is not a completely verbatim reporting of my twitter stream, I have corrected obvious errors and added some text in square brackets occasionally).

First some points from Zelda Perkin’s evidence:

First point that stopped me and made my jaw drop. She saw a partner at SMB [Simons Muirhead & Burton who represented her 20 years ago in her dispute with Weinstein] initially but case was handed to a 2 year PQE to negotiate with A&O et al.

That L did an incredible job, she says, but was under as much duress as her, and out of their depth.

L was vociferous in saying the agreement was unlike any NDA they had seen and was very board. She says, L offered no suggestion that it was not enforceable

The negotiations at A&O sound rather longer than in press stories, although ZP often in a meeting room whilst her lawyer fought it out with A&O by the sound of it. Extraordinary [to me] 5pm-5am negotiation

Interesting suggestion at a number of points that ZP stiffened resolve of her lawyer considerably, e.g. they wanted to ask for £20k, she pushed them to ask for much more.

If I understand her evidence correctly, her L told [by Weinstein’s lawyers] to destroy a note of ‘almost a full admission’ by HW during negotiation?

Other stuff about the terms – forbidding them to talk to doctors, lawyers, police w/o them all signing an NDA, I’ve not focused on here, as its more or less what we’ve seen reported.

She was worried about being sued or going to jail if she broke the NDA

Next up A&O lawyer (MM) and SMB lawyer (TL) Former involved in negotiations, TL here representing her firm.

Not taking evidence on the particular case because of client confidentiality. ‘IN most cases’ the NDAs are less extensive. [Thereby discussing the case in a backhanded way. Partial waiver of LPP 😉 ? Bindmans holds a copy (why?)]

It is worth emphasising here, that this leads to MM commenting on general practice in ways which are clearly implied to be, by the Committee, and I think often by him, to be about the particular agreement under consideration. My impression is where he has things to say about the agreement which he can defend himself with he is happy to talk about the agreement under this pretence of commenting in general. And where he has nothing to say, or perhaps where he is privy to confidential information he cannot reveal, he prays in aid the defence that he cannot talk about the specific agreement. So he is able to, or forced to, depending on your perspective, speak selectively about the agreement. I don’t criticise him for this, it’s totally understandable. But it does lead to a little imbalance or a lack of clarity on some points. Let me return to the tweets of MM’s evidence…

[MM says] Not common not to give a party a copy of the NDA. Extremely rare, very very rare.

Justification offered is risk document might become public domain and so they would need to restrict the number of copies.

Does not see stopping or limiting participation in a criminal process as reasonable. Thinks can seek to prevent disclosure of confidential information that is not necessary for the process.

Seems to say can prevent voluntary disclosure. [I] Might not be understanding [his point here].

i.e. I might not be understanding the evidence there. It’s not very clear.

Can see why in theory it [an agreement of the type the Commmittee has sight of, i.e. ZP’s agreement] might be seen as perverting the course of justice. But has never done it.

Relies on a kind of lawyer boiler plate, I would always say nothing in the agreement overrides ordinary regulatory obligations, as meaning the agreement does not PtCoJ

What I take MM to mean here is that if he puts in a kind of disclaimer in the NDA, which says something along the lines of this does not reflect your regulatory obligations (which I think is the language he uses), then the agreement signals the individual can cooperate with police investigations (for instance). It’s a bit like putting in a disclaimer of personal injury liability that this does not affect your statutory rights, if you like. I’m going to tackle this approach on another day.

Chair puts it to him that he has sanctioned documents that clearly limit disclosure in cases of criminal and civil disclosure.

He’s invited to rethink the document. He restates the boilerplate argument.

He suggests SRA document [their Warning notice on NDAs] has changed the picture, the Chair says it’s stating the position as it was (i.e. he can’t claim the rules have changed).

He half concedes he would draft the terms differently to make clear there were not restrictions on their ability to speak to the authorities.

He says he can understand the [effect the] agreement will have on people like ZP

He says NDAs should not be used to cover up criminal activity. He’s then asked, so how many times have you done that? I get involved when they’ve decided not to go to the authorities[, he says].

Ahh, the costs question [How much did A&O get paid]. Maybe, I won’t get side-tracked with that.

They’re going to get that [costs info] in writing. I’m surprised he says he doesn’t know. I’d have thought he’d look it up or get briefed on it as part of his prep.

Gets all the professional principles put to him. Says essentially he’s just negotiating and that meets his obligations, he might draft it differently now although says the professional principles were broadly the same.

What’s different now is whisteblowing, regulatory obligations, and something about further disclosure which I didn’t quite catch.

Further legal advice is inhibited by the agreement we are told. That would not be a normal requirement, he says.

Would like clearer rules on NDAs.

[He is asked are] Through the night negotiations normal? On occasion parties anxious to agree something as quickly as possible or in different time zones. Otherwise not at all common.

Is it appropriate to have alleged perpetrator in the room in a negotiation? He can’t talk about this case but [otherwise?] only in a mediation. He would advise the alleged perpetrator not to be in the room.

Says he does do things to try and make sure clients take their post NDA obligations seriously.

We then switch to evidence from a partner at SMB, who was not involved in the original case. Occasionally MM also makes points worth noting.

Now to SMB, TL who is an employment lawyers. The lawyer who did this case declined to come [the missing man of this blog title]. First she knew of it was what was published in the media.

Not sure how useful/interesting this is going to be [given she was not involved in the case]. But am listening to it [in fact I only make a few comments…].

She can’t really ‘not comment on the actual document’ in the way A&O could ‘not comment’ on it. She does say the inability to keep a copy wholly exceptional. Sounds like she’s never seen it to me. Would say she should not sign it, and unethical

MM says he only acted for HW/Miramax once on this case. Quite important that [because it would support a view that A&O would not know HW had a series of cases like this; also why did Miramax or HW change thir lawyrs on such cases – if that is what they did?]

He can’t remember where the language in the document (that he won’t talk about) came from [the implication which is not directly addressed is that Miramax, HW, or his US lawyers may have suggested the wording]

[MM asked, ]Should lawyers write agreements in ways ordinary people can understand them? Yes, is the answer. *Imagine*

MM is asked to express regret. He sort of seems to say he does. In that cagey half apology way which we all use from time to time.

After that evidence there is evidence from Max Winthrop (Law Society Employment Law Committee I believe), Suzanne McKie QC (as an experienced practitioner dealing with claimants), Gareth Brahams (in his capacity as the Employment Law Association Chairman). I’d lost my appetite for tweeting by this stage, although there are lots of interesting things in this evidence too. Some key points which I noticed:

SM said that in 25 years she had seen respondent lawyers (plenty but not all or most was the implication) behave disgracefully. She talked of coercion and pressure, even midway through hearings.

None of these three witnesses have any experience of denying a party a copy of the NDA, which they seemed say was wholly extraordinary and in breach of their professional obligations

ELA chair was asked what the ELA was doing to raise awareness of these issues. He was stumped. Said they’d discuss at their next meeting (something he appeared to have realised he should do for the first time at that moment) and that members were free to write articles for their (newsletter? Magazine?) if they wanted to.

Two (I think) of these three witnesses wanted the CPS or the SRA to clarify the criminal law on perverting the course of justice. Perhaps they meant they’d like the CPS or the SRA to clarify their approach to interpreting the law on perverting the course of justice.

There was also a general tendency to hope the SRA would provide more guidance on what was expected of lawyers. This is a familiar point, with lawyers pleading for more regulation in times of uncertainty. They don’t really mean it I think, not deep down – they just want an excuse for not having to think for themselves about their exposure to risk, which I may return to in due course. It leads to one last point, generally, I should say that the witnesses gave very clear and reasonable evidence, it seemed to me, and the Committee probed without much grandstanding (almost none actually – which I think is to be commended given some of the Select Committee hearings I have watched). I think the professionals sometimes showed a limited understanding of their professional obligations and the law on perverting the course of justice (this may have been tactical or a response to the stress of the occasion – something I may return to too). At one point a Committee member Philip Davies crystallises the central point exposed by the evidence: Why is it, he asked, that Lawyers are very clear on one principle, the client’s interest but very unclear on the other ones – the obligation to behave with integrity, the obligation to protect the rule of law and the administration of justice, independence and so on? He gets half an answer. But only half. And I think the answer is wrong as a result. I’m going to come back to those two halves soon.

One thought on “NDA hearings: Perkins, Mansell and the Missing Man

  1. As I said on a previous thread:

    When settling an employment claim with a claimant who is going to stay with the employer an NDA is essential. Without it if the employee ever fails, however fairly, to get a promotion or an appointment, s/he can bring a victimisation claim and assert that everyone in the business is fixed with knowledge of the “protected act” of bringing the first claim.

    A claimant who is settling in good faith will agree to an NDA and a claimant who will not agree to an NDA is not settling in good faith.

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