NDAs. He really is one of us

Capture
It’s not just lying that leads to crying

Nathalie Tidman has done a thorough and balanced job of reporting on recent NDA controversies for Legal Business (£). Interesting new information includes that Zelda Perkins had a barrister involved in her case, and that the firm that represented her kept the NDA in a firm safe, “with a post-it note inscribed ‘this must not walk’. All the supporting documents – including the evidence given by Perkins and her colleague – were apparently destroyed in a warehouse fire.” There’s also a fair bit on law firms wider travails with sexual harassment and keeping it secret. More pain to come on that one is the angle.

I want to focus on one comment. It comes from a fellow employment lawyer:

‘Mansell is better than most…  If you want an unethical employment lawyer, I could point you towards many. Mansell is not one of them.’ Another employment law veteran observes, incredulously: ‘He’s one of us.’

I have heard similar things myself from people who say they know Mr M well.  I am happy to accept a judgment of his good character. And bear him no grudge at all. Nor, if I am candid about it, given the effluxion of time, would I like to see him punished, save perhaps pour décourager les autres. Also, as it happens, I have an irrational soft spot for A&O because my first contact with them was with a partner who was among the kindest, and most charming, of any lawyer I have met. Mr M might well be one such as him. I am all for believing it.

What I want to challenge is the relevance of this to judging his conduct. It falls into the trap of thinking ethical misconduct is primarily about character. Is he or is he not a good egg clouds many a judgment. Having interviewed or talked to lawyers about how they manage for ethicality: they tell me, we recruit people like us and they learnt this stuff at law school (no, no they almost certainly did not). We don’t see a problem: it’s all about character and common sense. It is an approach which is understandable but crazy dangerous in the high stakes world of legal practice. A Gupta-like scandal with a medium sized law firm could, I think, bring a firm down; maybe even a big firm.

The point is made repeatedly in a recent book by Yuval Feldman , The Law of Good People: Challenging States’ Ability to Regulate Human Behavior (Cambridge University Press 2018). I’m not going to say a great deal here about the book as another blog is coming out on Jotwell soon (it is now published here). I do want to say this: Feldman’s central point is that most wrongdoing is done by good people. They (we!) do wrong because much of their (our) decision-making is done subconsciously, intuitively, or without reflection – we deceive ourselves albeit sometimes, importantly, with glimmers of recognition that we are uncomfortable about something.

Feldman sets out a host of reasons. One set of reasons is about biases which, I think, might be particularly important for lawyers: illusions of our own objectivity; a belief that we should discount intuitions and emotions in our decision-making (and the harm we cause to others); the ease with which we can rationalise misconduct after the event; the impact of tiredness and quick decision-making under pressure; working in competitive not collaborative environments; and, a sometimes excessive appetite for exploiting ambiguity. These often come with the territory.

That territory encourages good people to make ethical mistakes. It damages our ethical antennae and capacities to reason optimally. And, importantly, Feldman thinks, and evidence suggests, sensible, proportionate things can be done about these biases. We can make better decisions with some extra care and practice.

It is striking how often, in argument, one is exhorted to play the man not the ball; but the reverse is not true. In defence one can offer the man and ignore the ball. This is the wrong approach. A professional community must acknowledge the capacity for bad decisions to emanate even from the best people, and be willing to look at conduct forensically, and professionally; acknowledge mistakes, learn, and move one. When it comes to punishment, then yes, we should look at the man; but when thinking about what is professional, it is the man’s actions that are central. I suspect if we really embraced this, then professional regulation would look  more at understanding, education, leadership, and restorative approaches to conduct complaints; and less at punishment. Here’s hoping. Focusing on whether someone is one of us, obscures the real issues. The law of good chaps does not mean we do not need to think about this.

 

 

 

 

 

 

3 thoughts on “NDAs. He really is one of us

  1. I agree entirely that the focus for unethical behaviour – or any wrongdoing for that matter – should be the wrong not the person (at least, as you point out, until mitigation). I also thought we all had to be broadly “good sorts” to get the job in the first place – if it were then a defence, we could do no wrong.
    Where, I’m still struggling is to see the A&O wrongdoing here or where this “ethical”) obligation is to be found (other than in Legal Business, to which I don’t subscribe).
    Contracts frequently contain provisions which are unenforceable – for example agreements to agree. They can be at the request of either or even both parties and seem completely unobjectionable to me. If there’s a rule which says contracts must be strictly limited to matters of obligation, it is a new one on me. Likewise, just as a settlement might agree matters which a tribunal order could not, so parties might record unenforceable good faith intentions, (“gentleman’s agreements – as amont other parties one might call them). The ability to include such points is one of the advantages of settlement and if a party represented by solicitors and counsel can’t be taken to be acting if it’s own accord and to understand the law, the whole notion of contract would seem problematic.
    I’m not sure I see the “agreement” not to go to the police as offending public policy either. Just as a party does not want to settle one day and be hit with further civil proceedings the next, so I don’t see the harm in spirit of finality and drawing a line under things in there recording a shared (unenforceable) intention least not take steps to have the other made subject to further criminal investigations. Of course, if the police come asking, then that is different. Again, if a party thinks they are contractually prohibited from cooperating with a lawful enquiry, I would see it as their lawyers to put them straight (assuming the police didn’t get there first).
    So, if this was unethical – or even if it was not but ZP unhappy about it – I’d pu the blame elsewhere – on her lawyers, not A&O.
    To be a lawyer you need backbone. Talk of “elite firms” is beside the point. If you can’t stand up for your client, you shouldn’t be in the job. The obvious response to a bully like HW is to point out what his real options are here: NDA in conventional form or juicy Employment Tribunal proceedings with public and press in attendance.
    My own first case was an Employment Tribunal matter. I was a law student (with one of my fellow students along for moral support). The other side was a west end hotel represented by Lovells and a guy who took silk the following year. Unlike ZP, legal merits were not on our side either. Of course they tried to bully us into withdrawing the claim (wasted costs etc). The outcome was predictable but the client was happy even so. His point had been made (more it must be admitted by the ET chairman laying into the hotel’s HR inadequacies than by my feeble attempts at cross-examination).
    I thought it was settled law that one does not ones opponent a duty of care in litigation. Having “ethical” duties which run directly counter to those at law sounds like a recipe for disaster to me – one is almost certain to be in breach of one or the other and (as here) at the mercy of chance in terms of which becomes a matter of complaint later on.
    Finally, there is the role that hindsight plays in all of this and the fact we know far more than anyone (except Weinstein) knew at the time – and from the perspective of justice/the court – however hard it is not too in light of #metoo and the unsavoury HW.
    Is it appropriate to have an alleged perpetrator in the negotiation room? Yes. If the facts are contested, I would strongly oppose any attempt to prejudge my client’s guilt by excluding him from discussions. If the matter doesn’t settle, then they’ll find themselves in the same room soon enough anyway (unless the parliamentarian in question is advocating parties he be excluded from the trial of their own cases too). It would also be impractical – extending discussions even later than (the I agree extraordinary 5 am), if every point involved scuttling from room to room. If the Applicant wants to sit it out and send her lawyers into bat, that’s up to her (although by the sounds of it, she did a better deal by being there).
    Should A&O have thought it odd that he did not go to his usual lawyers? I don’t see why. I can quite any number of reasons for going to one firm for commercial advice and another to defend allegations of groping and lechery at work. I can easily see too how one might think (or be led to believe) that it was only the former where regular advisers were required.
    My answer to Mr Davies’ question is, I suspect, different too. Lawyers are good on client duties, because that is the way the adversarial system works. Talk of it says we serve the interests of justice and even duties to the court, need to be understood accordingly. It wouldn’t otherwise be seen as decent to assist in the acquittal of someone who actually is – as one might well suspect – guilty or frustrate the claim of a credible/truthful opponent.
    That being so, I do not see it as either decent or in the interests of justice to decide the issues in the other side’s favour . If rules or ethical constraints do require us to pull our punches in this way (e.g. the duties on a party pleading fraud), they need to be very clear indeed.
    #metoo (along with MPs and history) can look at this in terms of the good guys and the bad guys. Courts, on the other hand need to deal with each case one by one, on their own particular merits and with the lawyers doing their own job. If we start asking a parties own lawyers to act according to what is “right” (i.e as a court might decide it) then this “ethical” approach will have lost us far more than we have gained.
    The loathsome, unpopular and guilty need legal representation more than most. They also lie more than most. Our job is still to stand up for them with the same skill and determination as we would use in a more sympathetic cause. It has never made lawyers popular – particularly when it is done well or (as is comparatively rare) where the alleged respondent to allegations like these is also the better resourced and more powerful party. It is still our job.

    1. Thanks Alex. An excellent comment. Might I suggest you look at what I actually wrote about the NDA if you want to see some of my thinking. I’ve blogged on it here and in evidence to the Select Committee?

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