Edward Fennell’s Legal Diary – Edition 5
Snips, comments and contributions from the legal world Thursday April 23
SHORT THOUGHT OF THE WEEK
There is too much talk about the C-virus emergency being unprecedented. It is not. Accounts of the Great Plague in 1665 highlight many of the same issues from social isolating and distancing through to the preparedness of government.
As Daniel Defoe laid out in his ‘Journal of the Plague year’ there was ‘No law to prohibit my travelling wherever I will on the road ‘ and yet, as a poor man observes. “There will be so much difficulty in disputing with [the authorities] at every town on the road that it is not for poor men to do it at such a time as this.’
Defoe also highlights how ‘it was for want of timely entering into measures and managements that all the confusions that followed were brought upon us ….which, if posterity think fit, they may take a caution and warning from.” Signs are that posterity did not.
ALERT OF THE WEEK
This evening at 5.00 pm (UK time) Richard Susskind, the law and IT guru, will be doing a virtual launch of his latest book Online Courts and the Future of Justice at an event chaired by Professor David Wilkins, with a response by Chief Justice Gants (MA. Supreme Judicial Court).
It was supposed to be a live event in Harvard for the American readership but we can now see it online. To receive the link register at: https://harvard.zoom.us/webinar/register/WN__TGiV49PSWqqaHqU8YCE8Q
LEGAL DIARY OF THE WEEK
FIRING RANGE
It is the little routine things that help to keep us grounded in these peculiar times. Like Fire Drills for example, Come hail or high water (or plague) they go reassuringly on. At least they do at 11, King Bench Walk. As this little missive from Daniel Stilitz QC to his WFH colleagues illustrates.
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From: Daniel Stilitz QC
Sent: Tuesday, April 21, 2020 8:49 AM
To: Barristers <barristers@11kbw.com>; Staff <Staff@11kbw.com>
Subject: Fire Drill Today
Dear All,
You will have noticed that there is a fire drill evacuation taking place at 10am this morning.
To ensure compliance with our health & safety obligations, this will now be taking place by Zoom. Please would all member of Chambers and staff participate in the usual way by standing in the garden and chatting with other members of your household for 5 minutes, looking slightly impatient and asking whether it’s just a drill.
Many thanks,
Dan (on behalf of ManCom)
Daniel Stilitz QC
WHIPLASH REFORMS POSTPONED – AGAIN
Talk about a ‘Get Out of Jail’ card. Those of us who have been following with interest the progress – or rather lack of it – on the introduction of reforms to the whiplash insurance regime have been wondering what excuse the Government would come up with next for further delays. Little did we guess that Covid-19 would become the supreme ‘Dog ate my homework’ excuse for any and every delay in Whitehall. Brexit was bad enough but this trumps everything. Guidance from a Minsitry of Justice spokesperson on Tuesday was that:
- The current Covid-19 pandemic has had an unprecedented impact on the medical, legal and insurance sectors which is why we have decided that now is not the time to press ahead with implementing our whiplash reforms.
- We will continue to monitor developments in relation to the current pandemic and, if necessary, make further announcements in regard to the implementation of these important reforms.
This has now been kicked so far into the long grass that whiplash reform might never be seen or heard from ever again.
BT CUTS FIRMS ON SPEED DIAL
As if they hadn’t got enough to deal with right now 25 top firms are having to handle hurt feelings at being expelled from the BT Legal Panel. The communications giant used to have 40 firms on board but this has been whittled down to just fifteen following a decision to foster ‘deeper and stronger relationships’ with a core set of firms who will work on UK legal matters for external advice and international matters from BT’s head office. “Delivery of the right advice including the correct judgement calls requires insight into our business.” sais Sabine Chalmers, Group General Counsel, BT – implying presumably that some of the exiting advisers were one digit short of a mob number in that respect.
One of the lucky 15 elect is DWF. “This is great recognition for DWF’s differentiated offering and our strategy of transforming legal services,” said Catherine Haslam, client lead partner at the firm.
WHAT PRICE EXPERTS NOW?
To be ‘guided by the science – and the scientists’ has become the watchword from Government of late (although one does wonder what happens when the expert scientists disagree – a phenomenon not unheard of). And law firms are now adopting that principle too. The latest example coming from CMS which has announced this week that it plans to reduce carbon emissions to net zero by 2025 ‘backed by Science Based Targets which will ensure independent, scientific verification and align the firm with UN goals to limit a global temperature rise to 1.5˚C.’
CMS is one of the early adopters of ‘Science Based Targets’ and will be seeking independent verification for its commitment from SBTi, the organisation backed by the United Nations, World Wide Fund for Nature, CDP and others to encourage and measure corporate climate action. It has also worked with Carbon Intelligence, the carbon management and energy performance business. Looks like a whole new world of consultancy has opened up for the law business.
AND FINALLY
in this historic week when the first virtual Prime Minister’s Questions was held in Parliament we also had the outcome of the first English High Court case to be streamed live on YouTube. Mr Justice Teare, an English High Court judge, found that the National Bank of Kazakhstan cannot be held accountable to the claims of Anatolie and Gabriel Stati (the Statis) regarding the freezing of assets. Maybe a small step for justice – but a big step for the delivery of Justice.
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APPOINTMENT OF THE WEEK
NICK GOULD GOES TO ARIA GRACE
Anyone familiar with the battles that small and medium sized businesses have had with abusive banks and their legal advisers over the past decade or so will be familiar with Nick Gould and what he has undertaken for them particularly under the auspices of the highly successful campaigning organisation SME Alilance
Having started his career before Big Bang with Clifford-Turner (now Clifford Chance) he has worked both in-house and with high profile law firms across the decades. Having been with Gunnercooke for the past five years he is making (maybe his final) move to Aria Grace, the challenger firm which operates on ethical principles (see www.aria-grace.com).
Here are some of his thoughts on deal-making
“In corporate deals I suggest the starting point should be relatively simple – advisers need to focus on the deal itself and how to get it done. For example, on a recent multi-jurisdictional deal, the extensive set of documents were signed less than three weeks after the first draft was circulated. The clients were sophisticated, the lawyers and other advisers were commercially minded and driven by the needs of the clients. Perhaps it helped that the clients were in the same industry and buyers and sellers wanted to get the deal done fast. No point-scoring, no late-night negotiating sessions, and a determination that we could get the deal done within a short and agreed time frame.
“The alternative approach, which depressingly still seems to comes up all too frequently, results in endless rounds of negotiations, a mess of documentation, sorted out over a long period (sometimes as long as 18 months), and at a fee probably unacceptable to the clients, giving those clients little incentive to use the same team (firm) again. I remember a client saying to me about one lawyer ‘if he is ever involved in another deal for a company we want to buy, we will walk away.’ That should send a shudder down the spine of every deal-doing corporate lawyer – of how (not) to be remembered.
COMMENTARY OF THE WEEK
Big law and accountancy firms seem to be getting into dangerous legal waters through their activities in the UAE/ Dubai. One of the latest cases involved Ernst & Young and the claim by its former partner Amjad Rihan that he had been forced out of the firm after he blew the whistle on incriminating audit findings. Here Bambos Tsiattalou, founding partner at Stokoe Partnership Solicitors, gives his analysis. .
“The recent damages award of $10.8m to former EY partner Amjad Rihan is remarkable. In London’s High Court, Mr Justice Kerr awarded the sum after Rihan sued EY. He also found that the Big Four firm had breached the principles of integrity, objectivity and professional behaviour by failing to undertake a client audit in an ethical and professional manner.
Rihan gave evidence that he had been compelled to leave Dubai in 2014 after he alleged that EY had helped to cover up gold smuggling for suspected large-scale money laundering by Kaloti Jewellery International, a Dubai gold refiner.
Manifestly, the judgment vindicates Rihan’s whistleblowing in relation to EY’s conduct. More broadly, it accentuates the serious concerns that exist about what happens when a bank or professional services firm becomes too embedded in jurisdictions where corruption is commonplace.
The Rihan v EY case serves as a wake-up call to lawyers and auditors everywhere. Mr Justice Kerr concluded that EY owed an “audit duty of care” to Mr Rihan, that it had breached that duty in several ways and that EY staff had put the firm “in breach of the principles of integrity, objectivity and professional behaviour”.
His judgment stated that “The defendants (EY) sought to involve the claimant in unethical conduct, putting them in breach of the audit duty of care.” He held that instead of transparently reporting the audit findings, EY had acquiesced in steps designed to obscure the audit findings – a further primary breach in their duty of care.
Although the judgment does not make new law, since the duty of care remains the same, it relies upon existing regulations and previous decisions by English Courts, including the Supreme Court, in relation to professional advisers. What this case does very clearly is to highlight in unambiguous terms what should already be self-evident to every lawyer and auditor.
In summary, they have a fundamental obligation to help their clients not only to better understand, but also to meet in full all AML, terror financing and other regulatory standards. The Rihan v EY judgment should therefore act as a warning to every professional adviser about what can happen if they fall short in meeting those standards.”
PRO BONO/CSR ACTIVITY OF THE WEEK
IN HOUSE PRO BONO GROUP FUND-RAISES FOR C-VIRUS HIT CHARITIES
Started yesterday – and running through to June 22 – the In House Pro Bono Group’s ‘virtual fitness challenge’ aims to raise money for charities impacted by COVID-19. Bringing together lawyers of all shapes and sizes the Group invites members from In House, Private Practice, Academia, Chambers and Courts & Inns – to compete against each other to be the most active group,
Formed last year by a group of in-house lawyers including Deborah Smith, an executive director and senior counsel at Goldman Sachs, In House Pro Bono Group who shares a collective belief that ‘the provision of pro bono work is a professional responsibility of all lawyers’.” It now has 100 individual members from over 70 organisations across the United Kingdom.
Participants in the challenge will be required to make a minimum £10 donation to the charity of their choice or the charity designated by their organisation. The challenge is being hosted by ChallengeRunner where participants will be able to log their ‘active minutes’ – whether that’s running on a treadmill, a daily walk outside or working out in their living room. Along the way, the In House Pro Bono Group will be posting bonus challenges via its Instagram account (@InHouseProBono) for members to earn bonus activity minutes for their teams and to support selected charitable causes along the way including the London Legal Support Trust’s 10,000 Step Challenge on 8 June.
“It’s difficult to keep fit in lockdown [but] it’s even more difficult to run a charity in peak demand when your funding has dried up,” said Deborah Smith.
For more about both the In House pro Bono Group and the Virtual Fitness Challenge go to http://inhouseprobono.uk/
PICTURE OF THE WEEK from law firms’ collections
When DLAPiper moved into its new offices near the Barbican it capitalised on the opportunity to develop a whole new firm art collection under the curatorship of Cornelius Medvei, who is as well known in art circles as the legal world.
His choice of picture of the week from the firm’s collection is by HERNÁN SALAMANCO
| El Viaje de Wilson (Wilson’s Journey) 2015 | Enamel on Metal Panels | 24 Panels – 1 square metre each – 2 panels high x 12 panels long | Buenos Aires, Argentina
“I absolutely love this piece and find it very uplifting and endlessly fascinating to look at,” says Cornelius. “One of the great benefits of workplace art collections is the opportunity they give you to really look at a piece and get to know it intimately. For me this is a work of real humanity and tenderness. The artist’s choice of media, the scale and complexity of the work and it’s dynamic imagery – the piece could equally well be called the four seasons and looking at it you really get the feeling of moving through the seasons as well as through different landscapes – draw me back to it again and again. I particularly love the way the metal panels bear the marks of their previous use – lots of nail holes round the edges, the old writing on them visible at certain angles and lots of dents and other scars.
The firm’s catalogue describes it thus:
“Salamanco is interested in beginning a new caste of materials and surfaces, a renovated hierarchy, a superior form of retinalism.” – Rodolfo Biscia Hernan Salamanco’s main practice is the application of media onto surfaces or textures that they often vastly contrast with, most commonly painting enamel onto metal, in order to create a private dialogue between the medium and the surface. His choices in media are frequently referential and loaded with meaning which in turn serves to extend, complement or analogise the subject of the piece. His works are often unnerving, hazy, and throw up more questions than they do answers. . In Wilson’s Journey, his chosen materials allow him to escape what art critic Rodolfo Biscia calls the ‘lineage of canvas’: the idea that certain materials and grounds are tied to an overbearing artistic heritage which he wants to detach his work from, retaining an indifference to the illustriousness of oil paint. He feels he must disclaim academic instruction. For Salamanco, there is no room for classic pictorial procedures.
LEXFLIX OF THE WEEK – LAWYERS ON SCREEN
Who needs Netflix when you can have LEXflix – videos on law firms’ websites for free? Law firms are increasingly using video packages presented by parters and associates to lend personality to their communications. It is often pretty technica stuff aimed at a niceh audience. But in a super-savvy video world – where we are used to slick presentations on Sky and the BBC and other news media – you still need to have screen presence to make it work.
The Legal Diary is now starting to look for the best performing lawyers on screen. Some videos have been up for some time and sound dated. But as an introduction – just to get a sense of what’s available – take a look at our first five picks
HERBERT SMITH FREEHILLS
ANDREW PROCTER discusses key financial regulatory trends and what these mean for the financial sector
Go to: www.herbertsmithfreehills.com/our-expertise/sector/banks-and-other-financial-institutions
Legaldiarist comment. “Procter is a natural, taking to the screen as if he were born for it.”
NORTON ROSE FULBRIGHT
HANNAH McASLAN discusses impact of C-virus on outsourcing arrangements
Go to www.nortonrosefulbright.com/en-gb/knowledge/video
Legaldiarist says ‘Useful highlighting of outsourcing services as key and critical services at this time.”
SIGNATURE LITIGATION
ALICE DECRAMER
Legaldiarist says: “A great opportunity to brush up on your French – it’s got English sub-titles for those who are a bit rusty – as well as getting to grips with the basics of how the French legal system works. Decramer comes across as you would expect from any Paris-set movie – firm, on top of things, focused.”
BAKER & McKENZIE
JOSE MORAN
Bakers’ US partner Jose Moran is interviewed about the significance of force majeur clauses
Go to www.bakermckenzie.com/en/insight/publications/2020/04/is-covid19-a-force-majeure-event
Legalidiarist says: “Shows the benefits of having the interview format as a way of injecting ernefgy into a presentation.”
MISCHCON DE REYA
Hosted by EMMA WOOLCOTT, Head of Reputation Management
https://www.mishcon.com/news/tv/mishcon-academy-digital-sessions-cyber-security
Legaldiarist says “ A great product from the Mischcon Academy bringing together a variety of experts from outside the firm as well as Woolcott’s own expertise on current cyber security issues.”
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Can you recommend a video, blog or webinar to readers of the Legal Diary?
If so do send suggestions through to fennell.edward@ yahoo.com