The Freshfields Two

It’s the biggest talking point in the City this week. The Law Society’s decision to pursue Freshfields Bruckhaus Deringer lawyers Barry O’Brien and Tim Jones over their role on Philip Green’s bid for Marks & Spencer (M&S) has been obsessing corporate lawyers, ever since www.thelawyer.com revealed the news on Monday morning (30 October).

And as we report today, Freshfields isn’t rolling over. Up until relatively recently litigation head Ian Terry was dealing with the matter within Freshfields. But with the prospect of a showdown (most likely a Solicitors Disciplinary Tribunal hearing in April 2007), O’Brien and Jones have instructed a couple of heavyweights.

O’Brien has turned to Ed Sparrow, head of litigation at Ashurst. Readers may want to pause a moment to savour the piquancy of O’Brien instructing the very law firm that took over the mandate on the M&S bid.

By the way, as of today, O’Brien is no longer a partner at Freshfields, but a principal consultant. It sounds like unfortunate timing, but it’s merely coincidental. He is one of a group of two dozen partners who have opted to take consultancy positions as part of the firm’s restructure.

Jones, who is London head of corporate, has instructed David Mayhew. (That’s the litigation and regulatory partner at Herbert Smith, of course, not his Cazenove namesake who was part of the M&S defence team that had Freshfields thrown off the bid.)

Meanwhile, the response within Freshfields ranges from shell-shocked to incandescent.

The official statement goes like this: “Freshfields Bruckhaus Deringer regrets the decision of the Law Society to refer the conduct of Barry O’Brien and Tim Jones to the Solicitors Disciplinary Tribunal in respect of the firm’s decision in May 2004 to represent Revival Consortium in its bid for Marks & Spencer.

“Freshfields continues to believe that a bona fide decision of this kind should not form the basis of disciplinary proceedings.”
On first reading this sounds a bit wan, frankly. Normally you’d expect Freshfields to say it would be ‘vigorously defending’ its position at the very least.

“There’s no subtext to this,” protests an insider. “The important thing is our bona fide point. It goes back to the Court of Appeal judgment, which says they appreciated it was a decision taken in good faith at the time.”

And that, ladies and gentlemen, is just about the only printable Freshfields comment.

Catrin Griffiths, editor