Freshfields’ M&S tribunal: O’Brien admits conflict

The Solicitors Disciplinary Tribunal (SDT) today ordered Freshfields Bruckhaus Deringer’s head of corporate finance to pay £9,000 in fines in addition to paying the Law Society’s costs for breaching the solicitors’ code of conduct.

Barry O’Brien, advised by Ashurstlitigation head Ed Sparrow, entered an open plea on 27 July admitting a conflict of interest and had already agreed to pay £50,000 to the Law Society to cover the cost of investigating and prosecuting the matter. Last Friday also saw the Solicitors Regulation Authority (SRA) drop claims against Freshfields London corporate head Tim Jones.

O’Brien must pay £5,000 for failing to act in his client Marks & Spencer’s (M&S) best interest, and was fined £4,000 for bringing the profession into disrepute.

The SRA decided to drop allegations of a breach of rule 4 of the code, which deals with the protection of clients’ confidential information and the duty of disclosure owed to clients. Geoffrey Williams of Geoffrey Williams & Christopher Green Solicitor Advocates, acting for the SRA, said this was because there was little prospect of the claim being successful.

Freshfields co-senior partner Guy Morton said: “We very much regret that a bona fide and collective decision made by partners on behalf of the firm led to disciplinary proceedings. We are relieved that this entire matter is closed and that Barry can now fully concentrate on continuing his outstanding career.”

The conflict of interest turns on Philip Green’s £9bn run at M&S in 2004. O’Brien agreed to act for Green’s consortium despite M&S already being a Freshfields client. The firm still had one particular M&S matter open when O’Brien accepted the consortium’s instruction.

This matter was the contractual agreements between M&S and designer George Davis. Although not a high-value matter, it was felt by Merrill Lynch, the consortium’s advisers, to be an important battlefield if the bid went hostile, the tribunal heard today (2 August). This made the matter material, argued Slaughter and May, M&S’s adviser at the time.

Through his counsel Mark Howard QC of Brick Court Chambers, O’Brien today admitted that he had made an “error of judgement” and that he “acknowledges that the decision to act for the consortium was inappropriate”. Howard stressed, however, that O’Brien’s decision was bona fide. He appealed to the tribunal to consider that O’Brien had suffered a “sword of Damacles” hanging over his head for the last three years, plus the fact that he had stepped aside as a candidate for the 2005 senior partner elections because of the allegations.

The SDT opened proceedings today by stating that it was concerned that the claims against O’Brien had changed at the last moment, despite a lengthy run-up to the hearing.

O’Brien, 54, is currently a consultant at the firm, retiring last year from the equity to take advantage of the old pension scheme that has now been phased out. A senior Freshfields source told The Lawyer that O’Brien’s liability was not affected by him being a consultant.

Several big-hitting partners felt it necessary to lend their support to O’Brien by attending today’s hearing. They included competition partners John Davies and Deirdre Trapp and corporate partners Mark Rawlinson and Will Lawes.

Williams represented the Law Society. Jones had instructed litigation partner David Mayhew at Herbert Smith.