Lawyers who hide behind clients risk bringing themselves into disrepute
Harvey Weinstein’s former assistant Zelda Perkins is the most high-profile example to date of an individual breaking a code of silence around the way lawyers and their powerful clients treat victims of sexual harassment. Ms Perkins broke her non-disclosure agreement (NDA) to make allegations about her former employer and his lawyers.
The tale revealed a significant blind spot in the approach of employment lawyers, and The Telegraph’s revelations underline the problems associated with NDAS.
The routine imposition of NDAS in sexual harassment cases protects the privacy of the complainant and the alleged harasser, but it also reduces the need for employers to investigate or deal with serial offenders. It provides incentives for bad companies to cover up misconduct. It also provides incentives for allegations to be made in the knowledge that a common response is to buy the silence of accusers. Dishonest accusations are, I believe, rare.
That buying of silence has become routine. The legal machinery used can encourage oppressive, even sometimes unethical, conduct by lawyers and their powerful clients.
It is clear to me that some lawyers get the issues. They understand that these agreements have sometimes gone too far, that they have been, I would say, irresponsible by design.
But some really do not get it. They think the fearless representation of their clients means putting in unenforceable clauses, conducting oppressive negotiations or threatening litigation designed to put the frighteners on accusers.
Rather than take responsibility for their own contributions, they suggest someone else ought to provide guidance to complainants, or that regulators need to draft better rules.
Guidance and better rules are not terrible suggestions, but they seek to shift the blame for a problem rather than solve it, missing the fundamental point that the lawyer is responsible for the drafting of their agreement. It is the lawyer who has to make sure that their agreements are lawful and does not take advantage of their opponent.
They want to hide behind their client’s coattails, pretending that he makes all the decisions. Doing that is neither responsible nor professional.
Those lawyers currently muttering about unfair PR rather than directly addressing the concerns of the public, politicians, and regulators, think their colleagues grilled by parliamentary committees, such as the women and equalities committee earlier this year, are victims of political posturing.
Why is it, Philip Davies MP asked, that lawyers are very clear on one principle – the client’s interest – but very unclear on the others: the obligation to behave with integrity, to protect the rule of law and the administration of justice, independence and so on? Unless the lawyers drafting NDAS have a better answer to that question, they risk bringing themselves and their clients into disrepute. They need to think hard and change fast.