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Monday 10 June 2019

Tortoise Case File • Privacy and Power

Lawyers can’t be trusted to fix #MeToo injustice

By Zelda Perkins

Having been silenced by a particularly egregious non-disclosure agreement that my colleague and I signed 21 years ago with Harvey Weinstein, you would imagine I should have a clear understanding of their emotional and psychological toll.

But nothing could have prepared me for the raw emotion and ruined lives that were laid bare during a panel discussion I recently attended as part of the government’s consultation on reforming NDAs.

Zelda Perkins was 23 when she reluctantly signed the NDA 21 years ago

Here was a cross section of innocent employees – a lawyer, a charity worker, a civil servant, a teacher, a banker – who had reported poor behaviour at work. Instead of acting on their concerns, their employers dragged them through a process in which they lost their livelihoods, homes, savings, and their health.

This process, which has become the norm, has weaponised NDAs to devastating but hidden effect. It provides incentives to stay silent, not report wrongdoing.

In light of my case, the Solicitors Regulation Authority and the Law Society have published guidance and warnings to the legal profession on drafting NDAs, after first dragging their feet. They told parliament’s women and equalities committee that their guidance will end the ethical confusion lawyers seem to have while drawing up the confidentiality contracts.

Then, the Solicitors Regulation Authority announced the landmark move of referring a partner of the global, magic-circle law firm Allen & Overy to its disciplinary tribunal. Allen & Overy were Weinstein’s UK lawyers. The partner in question drew up the offending agreement between us in 1998. And while this is the first concrete move towards legal accountability in the entire NDA debacle, the ethical boundaries weren’t just stretched by one lawyer at one firm.

The boundaries weren’t clear enough to support my own legal team in protecting me or my colleague, their own clients. They seemed unable to advise us that the agreement was as egregious and immoral as it felt to us at the time. Neither did they advise us that its most intimidating and constrictive clauses were misleading and unenforceable.

Those clauses caused irreparable damage and seismically altered the course of two young lives – that of my colleague, who remains silent, and my own.

We were not willing signatories. The law told us we had no choice and we were left believing we faced bankruptcy or prison if we breached our contract. When I finally broke my agreement in 2017 I thought it was partly my own youth and naivety that had formed this terrifying belief.

But as I sat in that government department conference room, listening to mature professionals talk about how they were recently cut down or discriminated against at the height of their careers, punished by the very agreements which their lawyers had offered as a panacea, I realised that this legally constructed abuse is worse now than it was 21 years ago.

Harvey Weinstein in the Miramax Films screening room

Unless the government, the Solicitors Regulation Authority, the Law Society and the Bar Standards Association incentivise companies and lawyers to stay on the right side of true ethical practice, these agreements will become stricter and more secretive so as to allow their continued use and avoid the bad PR surrounding Allen & Overy.

And although part of me is encouraged by the action seeming to take place, the facts are harder to ignore. I am still unable to gain access to documents from my own case. My lawyers had signed an undertaking with Weinstein to never let me have my own papers.

This isn’t ethical. It isn’t in my best interest for my lawyers to be in thrall to the opposing party rather than me. The law is being twisted. The time for talk alone is over.

Zelda Perkins is a contributing editor at Tortoise

Photography by Getty Images