Magician’s Code: Don’t Say a Word

What’s going on here?

Magic circle firm Linklaters successfully stops one of its former employees talking about its difficulties with women inside the firm.

What does this mean?

In the recent case of Linklaters LLP v Frank Mellish, Linklaters was successful in securing an injunction order which prevents its former director of business development, Frank Mellish, from discussing its “ongoing struggle with women in the workplace”. Mellish left the firm in January last year and sought to “share [his] impressions of the current culture at Linklaters” with a specific focus on its treatment of women through a series of interviews in February. Linklaters’ challenge was ruled on by Mr Justice Warby who paid particular regard to three events that Mellish would be discussing; the Munich Incident, the NY Settlement and the London Settlement. Such events would invariably lead to a discussion of confidential matters. As such, Warby J decided that the confidentiality interests of Linklaters outweighed public interest in the conduct of large firms.

Why should law firms care?

This is a case that balances the interests of large firms with the interest of the public to know how such firms operate. It highlights that although it is important to examine and improve the internal conduct of law firms, a high threshold must be met if such an examination includes the divulging of sensitive commercial information or of the firms’ commercial interests more generally. Such an argument draws strength from the fact that the former employee, Mellish, was absent from the trial and had no representation at the court hearing. Although Warby J considered this fact, noting that courts should always be wary of granting injunctions against absent parties, especially when it involves limiting free speech, he ultimately decided that Mellish had been notified of the trial therefore his absence could not disproportionately affect the judgement.

The decision in this case leads us to question just what exactly is needed to outweigh the commercial interests of a firm, or if in fact such interests are completely insurmountable. Although the commercial sensitivities are undoubtedly important and deserving of protection, with the recent drive of firms towards equal opportunities and a fair and safe workplace, it arguably appears backwards to dismiss an examination of such matters as a “general desire to talk publicly about the ‘culture’ of a firm”.

Report written by Connor B.

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