Edward Fennell’s LEGAL DIARY

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

27 October 2023

SHORT THOUGHT FOR THE WEEK: Lawyers’ Role -Trick or Treat?

Halloween is almost upon us and Sergio Abreu, a Legal Adviser at DAS Law, has been offering advice on the legal quagmire that it constitutes.“Amidst all the excitement, it’s important to be aware of the potential legal issues that can arise during Halloween festivities,” he observes.

Now put that advice into the context of some of the bigger issues which surround us right now. Are lawyers ghosts or angels and how far can their advice moderate or shape behaviour in the heat/hate/hubris of the moment?

Ideally, lawyers can provide a safety handrail in extreme situations. But they can also be the fall-guys. Just yesterday crypto-king Sam Bankman-Fried claimed that his lawyers were involved in key decisions at the heart of his fraud case as he tried to shift responsibility for any wrongdoing. So, choose your clients with care – make sure you are not being tricked.

The LegalDiarist

In this week’s edition

+ LEGAL DIARY OF THE WEEK

– Building Back to the Future at Baker’s

How Limited are your Liabilities? asks this new tool

It’s the Wheel Thing – Clyde & Co. Backs WheelPower

A Day for Paralegals – 8th November

Taking In-House Lawyers to Task

+ CONTRIBUTED ARTICLE OF THE WEEK

Why Labour’s pledge to give cohabiting couples more protection should be welcomed, says Stacey St Clair

LEGAL COMMENTS OF THE WEEK

on Labour’s plans for cohabitees and a major fraud case in NIgeria

APPOINTMENTS OF THE WEEK

at Brown Rudnick and Pilsbury

LEGAL DIARY OF THE WEEK

Building Back to the Future at Baker’s

Not designed for WFH? – A meeting Room at Baker McKenzie’s new office
Photo credit Steve Pearcy www.stevepearcyphotography.co.uk

Back in the 1980s Baker McKenzie – although then it was Baker & McKenzie – occupied some rather gracious offices in Aldwych. It was a place of large staircases and wide corridors and discreet enough to be able to hide away a bridge-building Chinese lawyer when relations with the great Communist power were starting to warm up. After that came the move to Blackfriars and now, in what is described as ‘a natural next chapter in Baker McKenzie’s story in London’,there is the move to 280 Bishopsgate. 

“When we made the decision to move to 280 Bishopsgate, we set out to design an office that reflected our culture and prioritised the needs of our people and our clients,” commmented Jannan Crozier, Baker McKenzie’s Global M&A Chair. “We wanted a space that promoted collaboration and facilitated creative, solution-focused thinking; providing best in class service, and where our people would be excited to work. We have achieved that, and more, over the course of this project. Our new office marks a new era for Baker McKenzie in London, and offers ever more impressive service to the Firm’s outstanding client-base.”

Interestingly at a time when support for WFH is wavering the firm points out that ‘Collaboration desks are available on all working floors, making it easier to work on projects with colleagues’. Moreover the central staircase links all of the office’s working floors to ‘encourage people to move around and work with different teams or on different floors’. All of which looks like an endorsement of people getting together in person and not just virtually.

How Limited are your Liabilities? asks this new tool 

Talking about the old times, once upon a time Limited Liability Partnerships (LLP) represented a new, suspect status adopted by people who weren’t quite ‘one of us’. Now, of course they are standard practice – but also a potential recipe for disaster if not properly drawn up.

That’s why there will be a welcome for CheckYourLLPAgreement, a new interactive online tool designed by CM Murray to assess agreements for their appropriateness. 

 “LLP Agreements reflect a firm’s governance, partnership structure, and overarching business strategy,” commented Clare Murray, Managing Partner at CM Murray, “It is crucial that GCs and management teams are mindful of their LLP agreement, as well as the limitations and risks involved in drafting, reviewing and amending it. This unique tool, developed by our partner Zulon Begum, co-head of our Partnership and Professional Practices team, will help them truly understand their LLP agreement’s nuances, and make informed decisions to optimise it wherever possible.” 

The new tool uses a ‘traffic-light’ system to identify those sections within an LLP Agreement which require attention and refinement. It offers both suggestions for improvement and explanations of what the LLP terms involve. “Users will be able to answer questions anonymously about the LLP agreement they are reviewing and will then be provided with a traffic-light risk report with commentary on potential risks and practical next steps,” explains CM Murray. “Using the tool to ensure best practice will also help protect a firm’s goodwill, strengthen client relationships, and reinforce workforce stability – especially during partner transitions.” Sounds as if it could be a life-saver.

Photo Louise Sugden

It’s the Wheel Thing – Clyde & Co. Backs WheelPower

Paralympian medial winner Louise Sugden backs Clyde & Co’s WheelPower event

Clyde & Co is putting its shoulder to the wheel by helping raise awareness of the importance of sport and exercise in the rehabilitation of claimants with life-changing injuries. In conjunction with the organisation  WheelPower it developed last week’s ‘Stoke Mandeville Experience Day’ which brought together more than 70 insurance and legal professionals to hear first-hand from former and current Paralympians about the transformative power of sport.

Amongst the big names were Martin McElhatton OBE, Paralympian and Chief Executive of WheelPower, who competed in wheelchair basketball in the 1984 Paralympic Games and Louise Sugden, Paralympian Powerlifter, who won the bronze medal in Tokyo 2020 and has set her sights on competing in Paris 2024.

We were delighted to deliver the Clyde & Co WheelPower Experience at Stoke Mandeville Stadium recently,” said Martin McElhatton. “It is fantastic to see

how positive Clyde & Co and their partners are about supporting people with spinal cord injuries and other life-changing injuries.

Events like this help to support our work providing sport and physical activity as part of rehabilitation. As someone who has personally benefited from the incredible physical, mental and social benefits through playing sport for over 30 years it is vital that we continue to support people to be active and live a full life after spinal injury.”

Among those attending were Crown Office Chambers, 39 Essex Chambers and 12 King’s Bench Walk, alongside insurers including Allianz, AXA, Aviva and Direct Line Group. The day helped raise more than £20,000 to support the work of WheelPower. 

A Day for Paralegals – 8th November

NALP members and supporters at Westminster last year

National Paralegal Day is looming in the week after next (Wednesday 8th November) so it is a good opportunity to reflect on how paralegals are contributing to the evolution of the legal sector – not least regarding the impact of AI.

Organised by the National Association of Licensed Paralegals (NALP), National Paralegal Day shines a light on an often overlooked function. “National Paralegal Day was established to celebrate the role that Paralegals play within the English legal sector, and the contribution they make to the legal profession,” comments NALP. “Whether they are working within a solicitor’s practice, in-house at a large organisation or independently in their own practice – paralegals fill a void that has been created by the reduction in legal aid and the increased costs of paying for a conventional lawyer.”

Amanda Hamilton, the NALP Patron,  added,“Paralegals are the unsung heroes of the legal profession The growth of the paralegal sector, especially over the last five years or so, has been phenomenal, and NALP is proud to be at the forefront of that growth.”

The Star event of the week is a reception in the evening at the House of Commons which will feature the first outing of the ‘NALP Paralegal Achievement Awards’. The guest speakers will include former Financial Times editor and former Governing Board member Lyndsey Jones, Finders International MD, Simonne Llewellyn, and Fabian Hamilton MP. Sponsorship comes from Mindful Education, Finders International, BARBRI, and the National Paralegal College. Definitely worth supporting.

Tickets for the Westminster reception must be booked in advance and entrance to the House of Commons is by ticket only. To book see: https://www.eventbrite.com/e/national-paralegal-day-2023-tickets-717145360077

Taking In-House Lawyers to Task while ‘Taking Down the Tents’

The Centre for Legal Studies has a webinar coming up at the end of the month – see E-Vents below – with the focus on in-house lawyers and how they have had to reconsider their role in order to ‘best support themselves and their organisations in the face of rapidly changing circumstances’.

Someone who knows all about this is Michael Herlihy whose very entertaining book ‘Taking Down the Tents’ charts his own career as a top in-house lawyer in companies such as ICI and Smiths as well as working with top legal management consultancy, Jomati.

Ranging far and wide across his globe-trotting legal career – and with cultural references from sport to pop music to the bible and renaissance art – the story comes with a heavy seasoning of wry cynicism about corporate life. As the intermediary between corporate nabobs and elite City lawyers Herlihy was in the best position to evaluate them both. “In a moment you’ll ask me another question and I’ll tell you some other lie,” is a typical sardonic, deadpan comment.

But along with the put-downs there are also the occasional wooshes of admiration for the rare person who is both wise and street-wise – such as Alan Frew, a Scotsman who led the legal team despite not being qualified solicitor or barrister but who got on very well courtesy of his degree in law.

”Alan Frew was one of the most supportive bosses I ever had,” says Herlihy. “I learned a lot more from him than I did from most of the qualified solicitors I ever worked for.” A rare but lovely accolade in a whirligig of a book!

For more go to https://www.takingdownthetents.co.uk/

CONTRIBUTED ARTICLE OF THE WEEK

Why Labour’s pledge to give cohabiting couples more protection should be welcomed, says Stacey St Clair

Speaking at the Labour Party Conference earlier this month, Emily Thornberry, the Shadow Attorney-General promised to reform the law for cohabiting couples by giving them rights to each other’s property if they separate, as part of a common-law marriage pledge. With families with unmarried parents being the fastest growing family set-up in the UK these proposals are long overdue and have been welcomed by the family law community who have been campaigning for change for years.

Of the 3.6 million plus cohabiting couples in England and Wales, it would be fair to say that a large proportion wrongly believe that a “common law marriage” will provide them some kind of financial protection if their relationship breaks down including rights to inherit each other’s properties held in one’s sole name, pension in the event of death, or rights over each other’s income.   In reality, claims open to cohabiting couples are limited to property and child maintenance, which are often unaffordable and extremely unpredictable. The limitations can be seen, for example, if the family home was owned by one party in a cohabiting relationship, then the other party does not have an automatic right to a share of this asset unless they can show they have a beneficial interest. If this couple were married, then the non-owning spouse would automatically have this right.

The lack of protection for cohabiting couples means that favour leans towards the bigger earner in the relationship – typically men.  When considering the future needs of one partner, the roles undertaken during the course of the relationship such as one party agreeing to work and the other looking after the household are not taken into consideration.  This can often lead to the financially weaker party in a precarious situation as to how they will meet their housing needs and day-to-day needs following separation  Sometimes even contributions to paying the mortgage or certain decoration works to the property are not enough for one party to have a claim to a property. This can lead to the financially weaker party staying in an unhappy relationship due to concerns they will not have the means to support themselves if they were to leave. 

As things currently stand, cohabitation agreements are the only way forward for cohabitees seeking clarity and some financial  protection should their relationship not go the distance  but  many people do not have the knowledge or means to formalise one.  Nor do many couples want to think about their separation just when they are about to take a big step in their relationship by moving in together.

Although Labour’s proposals were scant on detail, jurisdictions such as Scotland and New Zealand where cohabitees have more legal rights than here provide examples of how things could work.  For example, in New Zealand the same laws about property division apply to married and unmarried couples providing they have been living together for three years.  Nevertheless, Labour’s pledge is a step in the right direction – all cohabitees need a legal framework and this in my view needs to remain a priority to  help protect vulnerable cohabitees.

Stacey St Clair is a Partner in the family and divorce  team at Debenhams Ottaway.

LEGAL COMMENTS OF THE WEEK

TOPIC: The decision of a London court to uphold Nigeria’s challenge to an award worth US$11 billion, finding it was obtained by fraud

COMMENT BY: Leigh Crestohl, Partner at specialist international arbitration and litigation law firm Zaiwalla & Co

“This landmark ruling has again underlined the role of London as the leading venue for the fair and impartial resolution of major international disputes. In turbulent international financial conditions the government and people of the Federal Republic of Nigeria must feel significant relief at this decision, which cancels Nigeria’s liability to make a payment to private parties said to be worth more than ten times its annual health budget.

The decision also illustrates that the English Court will not hesitate to investigate allegations that the conduct of a London arbitration was tainted by fraud, and to put matters right where that is proved. The detailed Judgment of Mr Justice Knowles, running to 140 pages, demonstrates a forensic analysis of the facts and law and reflects the Court’s dedication to achieving justice. 

For the international community, the message should be that the institutions of all nations must not waver in their efforts to root out historic corruption no matter how long ago, and how difficult the task is.”

TOPIC: The Labour Party’s proposals for strengthening the rights of cohabitees

COMMENT BY: Filomena Sterkaj is a Senior Associate at Stowe Family Law

Creating a framework whereby unmarried couples automatically have some financial responsibility towards each other after a defined period of time, will mean fewer families are left financially insecure after separation.

Furthermore, automatic rights for cohabitees after death will mean fewer bereaved people will be denied rights to their partner’s estate. Currently, where there is no Will in place, there is no right to inherit if unmarried.

However, there are valid concerns about unintended consequences of cohabitation law reform. Some couples will be disadvantaged by changes. For example, partners who have chosen not to marry for personal or financial reasons, such as protecting assets for children from a previous relationship.

Depending on the detail of the proposed approach, cohabitees could be left with no way of living together and legally keeping finances and property separate, should they split up or one partner passes away.”

LEGAL APPOINTMENTS OF THE WEEK

BROWN RUDNICK

Derval Walsh (left) is joining Brown Rudnick as a partner in the Firm’s Litigation & Arbitration Practice Group in London. Formerly with Mishcon de Reya, where he was the head of Finance and Banking Disputes, Walsh is highly experienced in advising on disputes involving loan notes, securitisations, syndicated loans, sovereign debt and interbank money market debt. He has acted on matters in English and international courts, as well as in arbitration forums. Prior to Mishcon, Walsh had worked at White & Case and Herbert Smith.

 Among a number of recent high profile cases Walsh acted for entrepreneur, Cevdet Caner, and a Luxembourg real estate investment company, Aggregate Holdings SA, in investigating claims for fraud, conspiracy and possible market manipulation in relation to the short selling of listed bonds and shares.

 “Derval has a stellar reputation and his experience acting in high-profile and high-stakes commercial and banking disputes, some against household name banks, complements our practice group perfectly,” commented Neill Shrimpton and Jane Colston, co-practice group leaders of Brown Rudnick’s Litigation & Arbitration practice in London. “His addition to our practice groupwill help to ensure that our clients continue to benefit from world-class disputes advice.”

PILLSBURY

Gawain Hughes (left) has joined Pillsbury as a partner in the firm’s investment funds practice in London. He was formerly at Morgan Lewis & Bockius LLP. Prior to that he had led the EMEA funds practice at DLA Piper.

Chambers-ranked lawyer, Hughes is a member of the UK’s Association of Real Estate Fund’s corporate governance committee and regularly provides training to British Private Equity & Venture Capital Association members on key investor issues.

He has a market-leading transactional practice in all types of secondary and co-investment deals including portfolio sales, direct secondaries, syndicated secondaries, GP led restructurings and co-investments, acting for some of the most active global participants in these sectors. He also has extensive experience in advising leading global institutional fund managers and investors on the structuring of and investment into unregulated investment funds, with a focus on private equity, infrastructure, real estate and debt investments.

“Growing our London office is a strategic priority for Pillsbury, as it provides vital services to our clients in cross-border and other important matters in the UK, across Europe and the Middle East, and globally,” said Office Managing Partner Matthew Oresman.

E-VENTS

Legal Leaders Programme:
In-house challenges – new technology, new ethics and new boundaries

In collaboration with Thomson Reuters, we are delighted to bring you the last of four webinars for 2023.


Date: 22 November 2023  Time: 2.00pm – 3.00pm (GMT)

If change is the only constant, in-house lawyers have seen an awful lot of it come their way in recent years as they have navigated an array of financial, political, environmental and pandemic events that have impacted their organisations, regardless of sector.

In responding to these challenges, in-house lawyers have had to reconsider their role and sometimes change the ways in which they operate, their interaction with their clients and stakeholders, and generally, how they best support themselves and their organisations in the face of rapidly changing circumstances.

In this session, we will look at the extent to which some of these changes have been temporary, borne of necessity, and which have, or will, become part of business as usual for in-house lawyers.

To find out more, please contact admin@legalleadership.co.uk 

We hope that you have found this edition of the Legal Diary interesting and even useful. If so please share with colleagues. Meanwhile please continue sending your legal diary stories plus insights, comments and new appointments to

fennell.edward@yahoo.com