Edward Fennell’s LEGAL DIARY

Diary news plus insights, commentary and appointments from the legal world

July 7 2023

Editorial contact: fennell.edward@yahoo.com

Short Thought for the Week: Chinese Whispers

China – A Red flag? Image courtesy of Encyclopedia Britannica

China – can’t live with it, can’t live without it. That must be the underlying feeling among Western law firms when they read headlines this week that the Hong Kong authorities are offering juicy financial rewards for information about a number of independently-minded lawyers. Among these are a former Kennedys partner, an ex-Herbert Smith lawyer and two ex-legislators. The accusations levelled at these people include foreign collusion, secession and subversion.

Meanwhile, also this week, Morgan Lewis announced that it will be opening in Shenzhen – its fourth office in China – to ‘further connect technology and life sciences companies in the region to the firm’s full service and industry capabilities throughout Asia, the Middle East, Europe, and the United States’.

Of course it makes perfect business sense. And no-one wants to turn their back on China. But surely it must come with a ‘health warning’ – especially if you are a lawyer.

The LegalDiarist

In this week’s edition

+ LEGAL DIARY OF THE WEEK

– Free-at-point-of-use legal advice? Dream on.

– Legal Apprenticeship Funding Now Extends to Legal Executives

– A D&I First for CMS

– Lawyers in Cloud Cuckoo Land?

+ CONTRIBUTED ARTICLE OF THE WEEK

LAWTECH: Why the Apathy? by Saj Ali

+ LEGAL COMMENT OF THE WEEK

The decision of the Court of Justice of the European Union to uphold the view of the German antitrust regulators on the Meta case

+ LEGAL APPOINTMENTS OF THE WEEK

Serle Court and Eversheds Sutherland

LEGAL DIARY OF THE WEEK

Free-at-point-of-use legal advice? Dream on.

Take legal advice from politicians? In Scotland they do it differently – obviously.

Free legal advice in England & Wales? A pretty rare commodity. That’s the finding of a report by LawWorks and the All Party Parliamentary Group on Access to Justice with much of the leg-work undertaken by Hogan Lovells, Addleshaw Goddard, Eversheds Sutherland, and Mishcon de Reya LLP.

The survey follows up on research from five years ago and shows that MPs continue to face what is called ‘an uphill battle to secure free legal services for their constituents’. According to  Claire Dumbill of Hogan Lovells, “This research emphasizes the continued pressing need for greater access to affordable legal advice across the country, particularly in relation to housing and immigration rights. It also highlights the impact of this unmet need for legal advice on the huge volumes of casework that many MPs and their staff are now routinely faced with. We look forward to addressing the implications of this research with MPs, government, legal aid charities, law firms and others active in the sector.”

It is unlikely that anyone at all will be surprised by these findings. Moreover the report’s ‘Call for increased Ministry of Justice and local authority funding to independent legal advice charities to enable them to engage pro bono lawyers at scale’ appears unlikely to be answered given so many other demands on the public purse right now. 

What is particularly striking from the research is the increased role that MPs are playing in signposting their constituents to such help as might be available. Among the report’s recommendations are “training for MPs and their caseworkers on legal issues; improving legal aid coverage; increasing funding and resources for advice charities so that they have the capacity both to help people seeking advice in the areas of the law they cover and to manage volunteer pro bono resource (which is underutilised); and investment in the creation of a shared learning platform.”

The fact that the ‘pro bono resource’ is underutilised is particularly worthy of note given how much investment law firms and law faculties put into pro bono. Why is it not fully bearing fruit?

For more go to: https://www.hoganlovells.com/-/media/hogan-lovells/PDF/2023-pdfs/mind-the-gap-2023-singles.pdf

Legal Apprenticeship Funding Now Extends to Legal Executives

As part of the Government’s programme to raise the status – and accelerate the take-up – of apprenticeships, the Department for Education has announced that CILEX (the Chartered Institute of Legal Executives) apprenticeships will receive the same level of funding as solicitor apprenticeships. This means that for the first time there will be parity of funding between apprentices qualifying as solicitors and those qualifying as CILEX Lawyers.

As an alternative route into the legal profession – often for older people and for those from ‘non-traditional’ backgrounds – CILEX has been delivering apprenticeships through the CILEX Law School (CLS) for the past decade. Those completing CILEX Lawyer apprenticeships will graduate with the CILEX Professional Qualification (CPQ)and will receive regulatory authorisation as Chartered Legal Executives as well as practice rights enabling them to practise independently in their specialist areas as CILEX Lawyers – with, let it be noted, parity to solicitors. 

“Achieving the same level of funding for CILEX apprenticeships as enjoyed by their solicitor counterparts is a significant milestone for CILEX and recognition that the CILEX route to becoming a specialist lawyer is an equally valid pathway and a vital part of creating a modern, diverse and competitive legal sector,” says CILEX Chair, Professor Chris Bones.

“Ensuring equality of opportunity for CILEX Lawyers and removing barriers to their career development is central to our commitment to both our members and the wider justice system. This year we have seen rapid progress in this regard, with government recognition of the important role CILEX members play in the delivery of legal services demonstrated by their commitment to prioritising the legislative reforms needed to open up senior judicial positions to CILEX Lawyers and to iron out anomalies preventing members from being able to certify copies of Powers of Attorney.” On wards and upwards then!

For more visit the CILEX website

CMS – A First for Diversity and Inclusion

In what has to be a trail-blazing first for the legal sector in the UK, CMS has beenawarded certification for the ISO 30415 Diversity & Inclusion (D&I) standard. Set up by the International Organization for Standardization – an independent, non-governmental international organization with a membership of 168 national standards bodies – the standard is intended to be scalable to the needs of all types of organizations in different sectors. It applies across both public and private sectors and regardless of size, type or country-specific requirements.

“We are delighted to receive this certification,” said Penelope Warne, the firm’s Senior Partner. “Developing an inclusive workplace requires an ongoing commitment to diversity and inclusion. This recognition is a testament to all the work undertaken by the firm’s leadership, the D&I Team headed by Sophie Breuil and D&I Partner Karen Clarke, the wider HR function and the firm’s Employee Networks.”

The actual certification process took a whole year during which time CMS UK’s D&I framework, policies, practices, actions and compliance were reviewed. This then had to be backed up by evidence that CMS had identified D&I opportunities and risks, to determine what actions, if any, need to be taken to close any perceived gaps. It will, no doubt, be a useful measure by which management and staff alike can grade the firm’s D&I performance for the future.

Lawyers in Cloud Cuckoo Land?

According to a recent survey of large British businesses more than half of in-house lawyers (56%) agree that digital transformation is a top priority – and that successful transformation requires a legal counsel that understands the technology.

But that’s where the progressive news stops. What lawyers also point out is that they face a range of challenges including developing or securing the right skills (30%), instilling an organisational culture of innovation and digital progression (28%), and data security concerns (27%).

[This is all consistent with the ‘apathy about legaltech’ described below in our Contributed Article by Saj Ali]

The hard truth is that over a quarter (27%) of in-house lawyers feel “overwhelmed” by digital transformation. Among the many difficulties is their lack experience is negotiating tech contracts (although the bigger the size of the business the less this tends to apply).

“It’s understandable that some lawyers feel overwhelmed given the broad range of technology they’re being asked to engage with,” says the report.

Among other findings four in ten lawyers (42%) report that the cloud is the most relevant technology for their organisation’s digital transformation while a third (33%) say they already use it.

“Cloud technologies have been at the heart of many of our client’s transformational projects in recent years, so it is not surprising to see cloud technologies featuring strongly in our survey,” says Sally Mewies, Head of Technology & Digital at Walker Morris. “Although technology moves fast, it doesn’t need to be overwhelming. Sometimes lawyers who don’t deal with technology contracts on a day-to-day basis can be left confused by the jargon. However, there is a lot of information available to assist in-house teams with their contracts and having an experienced project team alongside can be invaluable in terms of picking up on key risks and mitigations.”

For more see: Digital adoption: The transformative power of in-house legal teams.

CONTRIBUTED ARTICLE OF THE WEEK

LAWTECH: Why the Apathy? by Saj Ali

The University of Manchester has found in their recent landmark study that many lawyers are ‘apathetic’ about how lawtech could benefit their own day-to-day work. 

This could indicate either a gap in knowledge regarding the benefits of lawtech, or that change management approaches to encourage integration and enthusiasm about new software aren’t being used, or rather, implemented effectively. 

Too many times we see legal teams investing in the latest technology, only for it to never be used to its true potential because those using it haven’t been properly trained or simply are not convinced by it and as a result, the tech isn’t utilised properly.

Yet law firms could be left behind if they fail to harness the benefits of lawtech. After all, these programmes are designed to make a lawyer’s job easier and more efficient by automating standard processes, leaving time to focus on the complex legal tasks, and therefore creating greater value for their clients.

But evidently, running to embrace these latest innovations without serious consideration can be an expensive waste of time. In order to integrate lawtech products within your firm, leaders must provide education and support, encourage open communication, create feedback loops, and delegate responsibly in the following ways:

• training on lawtech products must be frequent, up-to-date and accessible. And day-to-day support must be available. If lawyers struggle with the software, they’ll be less likely to use it and therefore realise the benefits. 
• communication and transparency about why you’re introducing this software, what the teething issues could be, and what the solutions are will encourage engagement between leaders and their lawyers. 
• creating a feedback loop on the lawtech you’re using, minimises the impression of a top-down approach to introducing these products, and encourages collective involvement, ownership, and accountability.
• Delegating some of these responsibilities to team members who are already enthusiastic about lawtech, can help build a culture of positivity around it.
• being open about what has worked, and what hasn’t and why, demonstrates to naysayers that the firm is willing to learn from failures, listen to their lawyers, encourage experimentation along the way, whilst always remaining resilient. 

Saj Ali is a Senior Client Consultant in the Consulting, Process & Technology team at Pinsent Masons Vario

LEGAL COMMENT OF THE WEEK

TOPIC:  The decision this week by the Court of Justice of the European Union to uphold the view of the German antitrust regulators that Meta had abused its dominance in social media by harvesting information about users (The consequence of the decision being, in effect, to block Meta from combining data collected about users across its platforms).

COMMENT BY: Alex Haffner, competition partner, Fladgate

“The European Court of Justice (CJEU) doesn’t usually do irony, but it is somewhat propitious that its ruling has come out on American Independence Day. Because the ruling has been made on a “referral” from the German courts, the substance of the CJEU’s findings will fall to be interpreted by the German national court which made the referral. Ordinarily, this would mean that the parties (i.e. Meta) would look carefully at the EU courts’ judgment to find points of difference and/or scope for interpretation which might colour the national court’s deliberations. However, in this case the statements put out by the CJEU appear to be unequivocal in stating that Meta cannot simply rely on ‘contract performance’ (i.e. usage of Meta’s services) as a broad based justification for processing consumers’ data without their specific consent. 

It is also noteworthy from a policy perspective that the CJEU endorses the approach of the German competition authority to use their powers to investigate and sanction Meta for alleged data breaches.

In so doing, the CJEU expressly recognises that the boundaries between competition law and data protection enforcement are often blurred and there is a justification for the regulatory boundaries between the two to be breached where necessary to protect consumers from harm.”

LEGAL APPOINTMENTS OF THE WEEK

SERLE COURT 

Thomas Fletcher (left) has joined Serle Court. Formerly with Maitland Chambers Fletcher’s expertise lies in the field of high-value, complex trusts and estate matters with a cross-border dimension. He has been involved in highly significant cases in these areas across both in England and Wales and in the key offshore jurisdictions, including the recent Privy Council decision in Equity Trust (Jersey) Ltd v Halabi / ITG Ltd v Fort Trustees. He has also been involved in heavy commercial disputes, insolvency and company work as well as professional negligence disputes involving the administration of trusts and estates. Taxation issues and charities work has also caught his interest.

Called to the Bar in 2009, Fletcher is the editor of the definitive texts on trusts and estates law, Lewin on Trusts and Theobald on Wills. He was also previously a contributor to Williams, Mortimer & Sunnucks: Executors, Administrators and Probate. 

“Tom’s reputation precedes him, and his practice fits at the core of our offering,” said Serle Court’s Chambers Director Kathryn Purkis. “Whilst he certainly is another bright star in our private client firmament, the range of his practice will mean that we are fortified much more widely”.

EVERSHEDS SUTHERLAND

Alan Cook (left) has joined Eversheds Sutherland as a partner in its renewables and real estate practice in Scotland. Previously with Pinsent Masons, Cook is

dual-qualified in Scotland and England & Wales and has extensive experience acting on a series of significant projects for major energy and real estate clients

Included in his work in the UK has been providing advice on a variety of wind farm projects, both onshore and offshore, together with solar and other technologies. This has involved advising on the property aspects of Round 3 offshore wind farm projects and on bids for and development of Round 4 and ScotWind projects. One of the highlights of his career included leading a team to secure land rights for the UK’s first spaceport advising on all aspects of its negotiations and leasing agreements with Highlands and Islands Enterprise Scotland.

“This is a natural next step in my career and I’m looking forward to using my knowledge to support clients in renewables and real estate,” said Cook. “The firm’s culture matches my own approach and the team in the Edinburgh office already has deep relationships with clients. It is a great time to move to the firm.”

With a great weekend of tennis and cricket coming up you may have better things to do with your time. But if you have found any of the Legal Diary interesting or useful please circulate to colleagues. Meanwhil,e please continue sending your legal diary news, insights and comment to

fennell.edward@yahoo.com