It’s all over for illegal NDAs - but only in the UK; NZ still has a long way to go. Before we had a chance to write Part 2 of Harvey Weinstein and the Trashed Employment NDA, we received news of the Solicitor’s Regulation Authority’s decision to drop their disciplinary case against Harvey Weinstein’s Allen & Overy solicitor on medical grounds.
We contacted Mr Mansell via LinkedIn less than two weeks ago about his thoughts on NDAs (within mediated Records of Settlement) often used in New Zealand to gag whistleblowers, but he had no comment to make.
This concludes our reporting of the Weinstein matter, but we will soon be examining more illegal clauses in mediated Records of Settlement here in NZ, including those that have been put in the public domain as a result of subsequent ERA and Employment Court proceedings.
The disciplinary case against a magic circle partner involved in drafting a controversial non-disclosure agreement has been stayed because a trial would pose a ‘significant risk’ to his life.
A statement published by the Solicitors Regulation Authority this morning says the case against Mark Mansell, an employment partner at Allen & Overy, has been dropped on medical grounds.
‘The tribunal declined to dismiss the proceedings summarily but stayed them,' it stated. 'Medical experts instructed by both parties - who gave detailed evidence - substantially agreed that the continuation of the proceedings, and in particular a trial, represented a significant risk to Mr Mansell's life. In the circumstances the SDT concluded that a fair trial was not possible.’
The SRA opposed a stay in the circumstances of this case, regarding the public interest in the determination of disciplinary allegations to be ‘very strong’.
The case concerned the compromise of employment claims made by two individuals (A and B). The SRA began proceedings over an NDA Allen & Overy drew up with a former employee of disgraced film producer Harvey Weinstein. The former employee, Zelda Perkins, had told a hearing of the House of Commons women and equalities committee that the agreement settlement had been ‘morally lacking… on every level’.
The SRA's view was that, in the context of a serious allegation of sexual assault, a solicitor acting for an employer was guilty of misconduct because the settlement agreement allegedly purported to restrict the complainant's ability to report the alleged crime to the police, co-operate fully with criminal proceedings and obtain medical treatment.
Mansell's position was that, properly construed, the agreement did not prevent a report to the police, co-operation with criminal proceedings or the obtaining of medical treatment.
A statement by Russell-Cooke LLP on behalf of the A&O partner said Mansell ‘is and remains of the view that the proceedings are misconceived and should never have been brought’.
‘The principles of the settlement deal were agreed before our client was involved; he was brought in simply to document it, on the basis that the allegations were untrue and was given proper reasons why confidentiality had already been agreed as a component. A and B were represented throughout by English solicitors, an English barrister and a US attorney.’
The firm added that it is not disputed that Mansell did not propose the now controversial wording and that it has never been alleged that he acted oppressively or improperly towards A or B.
Zelda Perkins told the Gazette that NDAs are a ‘systemic problem in the legal world’ and that the regulator must do more to crack down on them. ‘Warning notices are clearly not enough,’ she said.