Comment: Salaried Guns and Troubleshooting – Confusion of privileges in UBS rape investigations another jolt to city law

Legal hacks are often accused of making sensational statements once the dust has settled when it comes to attorney behavior in emotional matters, especially when the Solicitors Regulation Authority (SRA) is involved. In our defense, we are basing the initial treatment of these cases largely on the views of numerous market contacts at the time.

The overturning of the results against the former Freshfields Bruckhaus Deringer partner Ryan Beckwith last year comes to mind. The early feeling was generally appalled by unhealthy drinking cultures and abuse of power. Many of the city’s partners later reviewed their opinions to agree with the High Court’s contention that “popular outcry is not evidence that any particular series of events lead to matters falling within the purview of a regulator” – the age-old one Rejection of the case “this” something happens all the time ‘.

With this in mind, recent indications from a labor court regarding a high-level “independent investigation” by Freshfields’ employment partner Caroline Stroud into UBS’s handling of alleged rape reported in the FT must be treated with caution.

The 2019 Labor Court results submitted by Judge Harjit Grewal state that the report produced by Freshfields did not fall under the right of legal advice, as UBS claimed. The publication of the verdict was prompted by a letter from the alleged victim (referred to as Ms A as she has lifelong anonymity) to the judge on April 1, 2021.

The letter called on the judge to publish the November 2019 order “because it is firmly in the public interest” to do so: “If the order is published, it will set a precedent and raise important legal issues in relation to it the right to surrender legal advice and independent investigation, “Ms. A. wrote.” It would be better to get applicants and the industry as a whole to understand what these investigations are often about, while demonstrating the tactics employers are contributing apply their conduct. “She also raised concerns about companies using” rented weapons “to solve their PR headaches.

In the ruling, the judge said UBS could not rely on legal privileges as employment partner Stroud had been hired to conduct an independent investigation into how the bank’s HR team had reacted rather than acting as the bank’s legal advisor.

Stroud was drafted by UBS in 2018 to review how the bank dealt with allegations that Ms. A, a former employee of the bank, had been raped by a colleague. While Ms A’s 2019 employment application against UBS was later kept confidential for non-protection, the new information still raises some serious questions about what constitutes a bona fide independent investigation.

The whole point is the apparent lack of consensus between the parties about Stroud’s role.

The SRA continues to investigate complaints that Stroud failed to make it clear to the alleged victim that she works for UBS. Ms A alleged she worked with the Freshfields investigation after receiving assurances from senior UBS figures that Stroud had not been hired to provide legal advice to the bank.

Freshfields refused to comment as it was not a party to the tribunal. Stroud will leave the partnership after 20 years with the company – a step that has nothing to do with the SRA investigation.

It was controversial that Ms A was only given a summary of the results of the investigation, which UBS exonerated – not the full report – as the document fell under legal and client law. According to the verdict, the judge stated that “fairness would require this. . .[UBS]don’t pick cherry [what] it shared ‘and that it had told Ms A that Stroud was not acting as an attorney, but merely offering advice and suggestions on how the bank should handle the claim. Therefore, the report was not considered privileged.

Judge Grewal said evidence from the bank’s chief investigator, Neil Young, in which he said the bank had hired Stroud to provide legal advice to the bank was “very difficult, if not impossible” to reconcile with evidence that which other UBS employees had told Ms. A about it. According to undercover records from executives quoted in the decision, then-head of investment banking, Andrea Orcel, told Ms. A that he originally didn’t know Stroud was working at Freshfields. He said he hired Stroud because she was someone who “understood this kind of situation,” the regulations and banking; Someone “thoughtful, experienced, and … had a reputation for doing the right thing”.

Siobhan McDonagh, the bank’s head of human resources in the UK, told Ms A that Stroud was “acting in a very different capacity and role” from her legal advisor role. Conversely, Young said it was always clear that Freshfields would be hired as an outside legal advisor and that the report would not be passed on to Ms A.

Perhaps even more controversial is Stroud’s challenge to Ms. A’s report on the grounds that Ms. A took quotations out of context that could be misinterpreted. Stroud stated that she said of her team that “we are not their lawyers” because they are “newly appointed lawyers to Freshfields and not” regular advisers “to UBS.

Suzanne McKie QC, managing partner and founder of Farore Law, served on Ms. A in the labor court and said companies need to be stricter. ‘There are too many Magic Circle companies doing so-called independent research that are not really independent. How independent are you of the person paying the money and do you already have relationships with the bank or organization that requested the report? You have to think about it. I will not be the first to argue that it is not covered by legal privileges, and I manage to do so.

“Any lawyer who does this type of exercise has to wonder what my role is in it. Will I move anywhere to provide legal advice over time? Will my client then say, “We’d better cover this with privileges” or is this treated as a privilege?

“As a lawyer, it is important that you find out what your role is. You make it clear to the bank or company that you are not providing legal advice, that you are not acting as legal advisor, and that this report does not give you privileges. Only then can it be truly independent. ‘

And at the risk of provoking the “#notallawyers” test tube, given the general care associated with the job – with or without the intervention of the watchdog – this shouldn’t be so difficult.

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