Lawyers who misuse nondisclosure agreements (NDAs) to silence sexual harassment victims should face “serious sanctions,” according to a report issued by the U.K. Parliament that has called on the Solicitors Regulation Authority (SRA)—the regulatory authority that oversees lawyers in England and Wales—to take more stringent measures regarding harassment in the legal profession.
The report, published by the Women and Equalities Committee on Wednesday, follows an inquiry by the committee into sexual harassment in the workplace, which saw the regulatory regime around such incidents placed under the microscope.
The committee, which is chaired by MP Maria Miller, urges the SRA to demonstrate that members of the legal profession will face serious sanctions “if they sexually harass clients or colleagues or if they misuse NDAs to silence victims of sexual harassment.”
The use of NDAs in such cases has been scrutinized by the committee in the wake of a series of revelations, including Allen & Overy’s role in a historic settlement involving disgraced movie producer Harvey Weinstein.
Allen & Overy advised Miramax, which Weinstein co-founded, in 1998 when the producer’s then-assistant Zelda Perkins accused him of sexual harassment. This March, Perkins told the committee that she believed the NDA drawn up by Allen & Overy was ”morally lacking” on every level.
The report states: “We have heard deplorable examples of how NDAs have been used to threaten, bully and silence victims of sexual harassment. Shockingly, this unethical treatment has, in some cases, been facilitated by members of the legal profession.”
The report cites the Perkins NDA—as well as those signed by hostesses at the controversial Presidents Club dinner—as examples of how NDAs “can be used unethically and potentially unlawfully.”
The Perkins case thrust the legal profession’s use of NDAs into the spotlight, with Allen & Overy employment partner Mark Mansell, who took a lead role on the negotiations with Perkins, questioned by the committee earlier this year.
The committee’s report added that it was “particularly disappointed” by an “apparent lack of rigor” in the SRA’s investigation into potential unethical practice by the lawyers involved in the Perkins case, given that the SRA spoke to Allen & Overy’s compliance officer in November 2017 but took no further action until April 2018.
As a result of the committee’s inquiry, the Ministry of Justice is now looking at the existing legal framework surrounding NDA use, while the Department for Business, Energy and Industrial Strategy is examining whether there are any gaps in employment law relating to NDAs.
The report adds: “Use of provisions in confidentiality agreements that can reasonably be regarded as potentially unenforceable should be clearly understood to be a professional disciplinary offense for lawyers advising on such agreements.”
“We continue to work actively with the firms to ensure that they are fully aware of their obligations to always do the right thing in these areas, both for any employees who come forward with concerns, and in terms of reporting issues to the SRA,” an SRA spokesperson said. “Firms, the police or regulators can only act if we are made aware of a problem. We would therefore urge anyone who is aware of a potential issue to come forward and report their concerns. We will look into concerns about harassment and take the necessary steps to tackle the issues, including appropriate disciplinary action.”
The committee’s report also includes the recommendation that whistleblowing protections should be extended to include those making disclosures to all regulators, including the SRA, and to any court or tribunal.
Michael Burd, chair of employment specialist firm Lewis Silkin, said that he thought the committee’s recommendations were more balanced than he had previously feared. “An outright ban on NDAs could have had unintended consequences, not least for victims.” he said. ”They appear to have taken that on board.”
However, he questioned the report’s recommendation calling for the adoption of standard, approved confidentiality clauses, adding: “What they intend may be that the requirements for such clauses include a provision stating that nothing should prevent a victim from reporting to law enforcement authorities, which makes sense, but I’m not sure how workable imposing standard wording for the whole of such clauses would be.”
A number of major law firms have been rocked by sexual assault and harassment scandals this year, in the wake of the global #MeToo movement.
The SRA has been looking into Baker McKenzie’s handling of a historic sexual harassment allegation involving an unnamed senior partner who has since left the firm, while Quinn Emanuel Urquhart & Sullivan referred itself to the regulator in response to allegations of inappropriate behavior by now-dismissed London litigation partner Mark Hastings.