Edward Fennell’s LEGAL DIARY

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

October 13 2023

Editorial contact: fennell.edward@yahoo.com

SHORT THOUGHT FOR THE WEEK

What’s The Shame In a Name?

In the aftermath of last weekend’s unspeakable atrocities many people have been caught up, entirely understandably, in rows about flying flags, issuing public statements and debates about the significance of individual words.

In particular, as illustrated on the BBC Radio4 TODAY programme this morning, the meaning of the word ‘terrorist’ has become a touchstone for truth.

Yesterday a quartet of very senior lawyers argued, logically, that because Hamas is a proscribed terrorist organisation in English law it follows that its members must, by definition, be terrorists – especially when they are perpetrating grotesque acts of murderous cruelty.

By contrast senior BBC staffers, approaching from a very different angle of perception, argue that ‘terrorist’ is an emotive, judgemental word with which they will have no truck.

It is clear that these two very different interpretations – one journalistic, the other legal – are not to be reconciled. ‘When I use a word,’ said Humpty Dumpty, ‘it means just what I choose it to mean — neither more nor less.’ ‘The question is,’ said Alice, ‘whether you can make words mean so many different things. ‘

Some of us might think that people’s actions just speak for themselves.

The LegalDiarist

In This Week’s Edition

LAW DIARY OF THE WEEK

Ay-eye! We’re coming for you!

Rights of Mansfield

Who’s Responsible for This?

Social Mobility on Good Foundations at Clarke Willmott

LEGAL COMMENT OF THE WEEK

on the Hamas attack, Labour’s new policy on fraud, the Micrsoft/Activision deal and class action over hacking loss.

APPOINTMENTS OF THE WEEK

at Browne Jacobson and Irwin Mitchell

LAW DIARY OF THE WEEK

Ay-eye! We’re coming for you!

A consortium of mostly (but not entirely) impressive law firms including Eversheds Sutherland, Hogan Lovells, Norton Rose Fulbright, Perkins Coie, Taft, Thompson Cobur and Womble Bond Dickinson and co-ordinated by SkillBurst Interactive, has come together to season up training on the fundamentals of generative AI in legal practice. The goal is to ensure the safe, secure, responsible, and ethical use of generative AI in practice.

“Leveraging nearly 10,000 separate data points collected from confidential surveys and a wealth of insights from 80+ executives and lawyers across these firms, SkillBurst is developing and delivering Generative AI Fundamentals for Law Firms,” comments the consortium’s announcement. “The new on-demand and interactive series will address the pressing need for fundamental training around generative AIrelated privacy and security concerns, implications of data bias, ethical considerations, liability and accountability, and the essential skills for collaborative interdisciplinary work with data scientists and IT professionals.”

That law firms are actively collaborating on a project of this kind says much about the urgency and scale of the challenge. AI is not just a mountain for individual firms to climb but a potential slippery slope for the whole profession. In circumstances like these even rivals need to come together.

“A powerful byproduct is that the outputs of this consortium will ultimately help the broader global legal community, and their clients,” said Anusia Gillespie, head of SkillBurst’s Legal Innovation Lab. “Every lawyer and business professional needs training on generative AI, but it is so new that high-quality and contextualized training is not yet widely available. These firms are investing in and creating on-demand learning content that scales and will benefit the profession at large.”

The practise of law continually changesbut this change is incomparably bigger than anything before.

Rights of Mansfield

Law firms which adopt the Mansfield Rule are twice as quick at diversifying legal leadership compared to those who do not, reports Kennedys which has just achieved Mansfield Certification for the second time. This puts them in an elite ‘diversity’ grouping of just 15 UK law firms

The Mansfield Rule – named after America’s first female lawyer, Arabella Mansfield – originated in the USA and is modelled on the National Football League’s Rooney Rule, which requires all NFL teams to interview at least one minority candidate for head coaching and other senior positions.

Run by the organisation Diversity Lab, the Mansfield Rule champions fair and equal access to advancement opportunities in the legal sectors for underrepresented groups such as women, LGBTQ+ lawyers, those with disabilities and from racial and ethnic backgrounds. First launched in 2017 it arrived in the UK in 2021.

Meg Catalano, Kennedys’ US regional managing partner and executive group member, says, “We view diversity and inclusion as a key priority. We understand that it is important to represent the diversity of our people, our clients and our communities, and to create an inclusive culture in which everyone, regardless of their background, identity or circumstance, can thrive at work.

Meanwhile Ingrid Hobbs, London-based partner and head of the firm’s complex casualty coverage team, added, “Taking part in the Mansfield Rule certification process has supported our work to increase representation across Kennedys. We are proud to have received Certification Plus status in the US and UK, which reflects our efforts to make meaningful change.”

Who’s responsible for this?

Love them or hate them ESG (environmental, social and governance priorities) look here to stay. And Irwin Mitchell is clearly nailing its colours to the ESG mast with the publication of its  2022-2023 Responsible Business Report, the third in the series.  

Featuring a summary of the firm’s key achievements over the last year and outlining its plans to improve further across a wide range of sustainability and inclusion metrics, the report is positioned as part of a commitment to transparency when it comes to ESG. “One of Irwin Mitchell’s strategic objectives is to become a leading responsible business and the report outlines the firm’s practical achievements to date and key aspirations for the future,” comments the firm.

Among its key achievements this year are:

– becoming a signatory of the United Nations Global Compact (UNGC) initiative committing to the ten principles and the framework provided by the UN’s Sustainable Development Goals (SDGs)

– approved its near and long-term science-based emissions reduction targets with the Science Based Targets initiative (SBTi). The Roadmap to Net-Zero by 2040 includes targets to achieve 100% renewable energy use in leasehold offices by the end of 2025 and a 50% reduction in Scope 3 emissions by 2030

– launched a new National Charity Partnership programme to offer longer term support to charities, while still delivering local impact.   (The three charities are Teenage Cancer Trust, cancer support charity, Maggie’s, and The National Literacy Trust.)

 “Despite the challenges, we’ve made significant strides towards our ambition to be recognised as a leading responsible business,” said Victoria Brackett, Group Chief Commercial Officer and Responsible Business Executive Sponsor, “Whilst there is always more to do, I’m proud that we’ve grown our team, bringing in new expertise and developing our existing talent to help us address the pressing societal and environmental issues that we face.”

Social Mobility on Good Foundations at Clarke Willmott

This is how it works

Meanwhile ESG is also a high priority for Clarke Willmott which, as part of the celebrations for its 135th birthday, has committed to supporting the charity Social Mobility Foundation (SMF) with volunteering efforts over the course of the next year. It is all part of the firm’s new community strategy to support social mobility, an initiative introduced by Peter Swinburn, the firm’s new CEO, who took over the firm’s leadership back in the Spring.

As the firm explains, the Social Mobility Foundation was chosen as the national partner as it ‘Aims to level the playing field for students with the ability and ambition to flourish academically and in the world of work, but who lack the opportunities and networks to help them get there’.

So, worthy aspirations – but practical too. The SMF’s Aspiring Professionals Programme opens up 11 different professional sectors to young people. Each January 2,000 Year 12s join the programme from schools across the UK and are supported for five years, giving them the skills to achieve their aspirations.

“We recently asked our people what causes they were interested in and a huge percentage thought that social mobility was where we could make the biggest impact together,” says Peter Swinburn, “We will be working hard, led by our head of ESG, Karen Higgins, to support, volunteer and provide mentoring for this charity.

“It’s also close to all our hearts as a caring and inclusive firm that has long supported our wider communities while promoting alternative career paths and growing talent from within.”

LEGAL COMMENT OF THE WEEK

TOPIC: The Hamas Attack

COMMENT BY: Almudena Arpón de Mendívil Aldama, President of the IBA


“The International Bar Association (IBA) strongly condemns the heinous attacks on Israel by the militant group Hamas. These indiscriminate and targeted atrocities against Israeli citizens contravene an unequivocal, non-derogable prohibition under international law. The murder of civilians, the assaults, and the trespass into private homes to kill and maim are all internationally recognised crimes of profound gravity; the abductions and taking of hostages, including women, children and the elderly, are crimes in violation of human rights and humanitarian law.

Israel has an inherent right to self-defence from these unlawful attacks. However, in doing so, it, too, must ensure that civilian populations are shielded from harm and that military actions are conducted with a clear commitment to the international legal principles of distinction and proportionality.

The IBA, representing the global voice of the legal profession, urges all international institutions and governments to use their best diplomatic efforts to secure the release of the hostages, to prevent the escalation of violence in the region and to return to the peace tables so that a just solution is achieved between Israel and Palestine.”

TOPIC: The Labour Party conference announcement of a “war on fraud”

COMMENT BY: Mark Jones, Partner, Payne Hicks Beach

“Whilst it is encouraging to see such a strong focus on Covid-related fraud, no details were given as to how this “war on fraud” will take place. How will it be resourced? How will it achieve any better than the Taxpayer Protection Task Force set up by the Conservatives to recover Covid-related fraud sums?”

TOPIC: The CMA’s approval of the Microsoft/Activision deal

COMMENT BY:  Alex Haffner, specialist competition partner, Fladgate

Today’s decision was widely expected and brings an effective end to what has been a tumultuous process for all concerned. 

In many ways, the end result is no different to other transactions which have raised significant competition concerns amongst competition regulators with the parties agreeing concessions to mitigate those concerns in an effective and clean cut manner.

But, what is different here is the circuitous route taken to get to that end point and the fact that Microsoft and Activision had to go to the brink of court proceedings before an accommodation was found.

The question that is left hanging therefore is whether this case shows a merger oversight system in the UK that is too dogmatic in dealing with what is a forward looking competitive assessment (especially in the case of ‘Big Tech’), or one which can be sufficiently flexible when required, provided always that consumer protection is to the fore.

Ultimately, the proof is in the pudding here and it will be particularly interesting to see where the wind blows next, particularly in the context of the next set of merger cases on the CMA’s cab rank, including that concerning Adobe and Figma.”

TOPIC: The possibility of a federal class action in the US following the theft by hackers of personal genetic information of 23andMe users

COMMENT BY: Luke Dixon, partner and expert data protection and cyber lawyer, Freeths

Genetic data gets special protection under UK data protection law – and rightly so. It is hard to think of a more private or sensitive type of information about a person. You can only lawfully use such data in limited circumstances, usually where the person has given their explicit permission.

“If a person’s genetic data is compromised, it could be shared or even sold in the darker parts of the internet. This could expose affected individuals to loss of confidentiality, discrimination or other forms of social disadvantage.”

LEGAL APPOINTMENTS OF THE WEEK

BROWNE JACOBSON

Mark Lee (left) has joined Browne Jacobson as a partner in its Real Estate Built Environment team based in its Birmingham office. Formerly with Fieldfisher. where he had been a partner since 2015, Lee’s appointment brings the total number of partners across the firm’s national real estate practice, which operates across six of the firm’s seven offices, to 24.

Lee has a background as a Chartered Surveyor and over 30 years’ experience specialising in investment and development work. His experience includes advising a diverse range of clients on investment acquisitions and disposals, commercial development, promotion agreements, option agreements and conditional contracts.

“Our real estate team has had another incredibly busy 12 months which has seen us receive repeat big-ticket instructions from national clients cutting across various sectors, including regeneration, private sector development, house building and registered providers,” said National Head of Real Estate, Sarah Parkinson. This is in addition to the increase in instructions we are seeing from new and existing clients that are based in the West Midlands region, so we are delighted to have Mark on board with us.”

IRWIN MITCHELL

Samantha Ewing (left), a senior associate solicitor at Irwin Mitchell who works across the firm’s London and Chichester offices, has been elected as a committee member of the Society of Trusts and Estate Practitioners (STEP) Contentious Trusts and Estates Global SIG Steering Committee.

STEP is the global professional association for practitioners who specialise in family inheritance and succession planning. It aims to improve public understanding of the issues which families face in this field and promotes education and high professional standards among its members. The Contentious Trusts and Estates Global SIG Steering Committee has a particular interest in international trust and estate jurisprudence.

“STEP is a vital part of upholding excellence in the private client industry, so I am delighted to be joining the STEP Contentious Trusts and Estates Global Steering Committee,” said Ewing. “My goal, and that of the firm, is to achieve the best results for our clients and lead the way in the private client space. Being a part of this global committee will help me to continue to be at the forefront of best practice in this area.” 

We hope that you have found this edition of the Legal Diary both interesting and useful. If so, please relay on to colleagues.

Who can guess what might happen over the next week but, come what may, we will be here. So please continue sending your legal diary news stories, insights, comment and appointments to

fennell.edward@yahoo.com