09:59, October 24 84 0

2017-10-24 09:59:08
Weinstein, Allen & Overy and the long arm of the law

The FT has published a detailed story (£) on Non-Disclosure Agreements (NDAs) with Allen & Overy the focus, for having represented Harvey Weinstein during a sexual harassment claim.

Of course, Harvey W is as entitled to legal representation as the next rich, white male,* and NDAs are a common practice where unsavoury allegations are made (compare the hacking allegations where MPs were outraged with the idea that silence could be bought in such a way). There are however, one or two unusual features of the case which merit attention. The FT reports this about the clauses:

One of the clauses of the NDA says that if “any criminal legal process” involving Harvey Weinstein or Miramax requires her to give evidence, she will give 48 hours notice to Mark Mansell, a lawyer at Allen & Overy, “before making any disclosure”.

In the event her evidence is required, “you [she] will use all reasonable endeavours to limit the scope of the disclosure as far as possible”, the agreement says, adding that she will agree to give “reasonable assistance” to Miramax “if it elects to contest such process”.

It would be interesting to know how standard such clauses are, seeking as they do, to inhibit any police investigation. For me they raise the question as to whether they are intended to pervert the course of justice. According to CPS guidance, the offence is committed where a person: ”does an act (a positive act or series of acts is required; mere inaction is insufficient); which has a tendency to pervert; and, which is intended to pervert the course of public justice.” One does not have to show an actual perversion occurred, and the offence plainly applies to police investigations. Indeed, “any act that interferes with an investigation or causes it to head in the wrong direction may tend to pervert the course of justice.”

Of course one could argue that such clauses are a necessary prophylactic against vexatious complainants. So if the woman in this story had been judged to be vexatious then the 48-hour warning would provide a useful tool for warning the police of her weaknesses as a witness. A quarter of a million in damages and, “days of gruelling questioning at Allen & Overy’s London office, capped by a 12-hour session before a phalanx of Mr Weinstein’s lawyers that broke at 5am,” does not suggest that Weinstein or his lawyers thought the claims were without merit, and nor does the clause requiring Weinstein to seek therapy, but I can’t rule the possibility out.

Even so, the requirement for her to limit disclosure to the police is, on the face if it – and I would welcome other explanations from experienced employment lawyers – a strange requirement which – again on the face of it – has significant potential to interfere with any police investigation. One could argue that the fact that Zelda Perkins was represented in the negotiation of the NDA protects against the problem, but, “All that is necessary is proof of knowledge of all the circumstances, and the intentional doing of an act which has a tendency, when objectively viewed, to pervert the course of justice.” Perhaps there is something in the negotiations which would lead us to the view that the agreement would not have that tendency. I suspect we will hear more.

Buried in that paragraph is the second feature of this case that merits attention. The lengthy questioning sessions, if they are accurately reported, are – I understand – unusual.

Were A&O playing out US-style dispositions for their US client; was it part of the need to satisfy Miramax that there was a claim needed to be settled? Perhaps but, if accurately reported, the approach is heavy-handed to the point of unreasonableness – so why would Ms Perkins’ lawyers go along with it? More mystery.

Ms Perkins says this in the FT story, “I was made to feel ashamed for disclosing his behaviour and assault, and expected to name those I had spoken to, as if they too were guilty of something,” she says. Were those people’s names being sought to establish if there was a wider problem that Miramax needed to take seriously, were they being taken to seek evidence capable of undermining Ms Perkins, and/or were those individuals also to be approached to ensure their non-disclosure? How far was corporate wrongdoing reported up the chain? The questions go on.

We do not know that A&O went too far when negotiating this agreement, but one more point for readers thinking that a reputable firm like Allen & Overy should not face such questions. Think back to the Dahdaleh case, a serious bribery trial knocked sideways by allegations that Allen & Overy had pressurised prosecution witnesses in the week before a major trial. One of the witnesses, in that case, was reported as saying this:

“It was very clear to me that they came to the meeting wanting to pressurise me and influence what kind of testimony I will give here,” he told the court.

“He (one of the lawyers) was telling me what I needed to say and I found that very intimidating,” he said.

The two partners from Allen & Overy implicated then sent Alex Cameron QC to speak for them as to why they should not be committed for contempt. A main part of their defence was that they were inexperienced in criminal cases in this Country (one was a US lawyer, the other not a criminal lawyer). The lawyers negotiating Weinstein’s NDA no doubt had similarly limited experience of the criminal process, but that does not remove the concerns about the content of, and process that led to, these NDAs.

* Other demographics are similarly entitled, but in a somewhat more theoretical sense.

Richard Moorhead is professor of law and professional ethics at UCL. This post was first published on his blog.