Edward Fennell’s LEGAL DIARY
Diary news, commentary, insights, appointments and arts from the legal world
July 8 2022 Editorial Contact: fennell.edward@yahoo.com
SHORT THOUGHT FOR THE WEEK: TIME FOR A STRAIGHT-TALKING LAWYER?
One did not have to agree either with her political vision or values to admire yesterday the clarity and coherence of communication with which Suella Braverman, the Attorney General, set out her stall for being Prime Minister. After the years of blather and evasive verbal artifice from Johnson it was a refreshing change. There was no ambiguity. If one wanted to disagree with her – and many, probably most, will – at least it would be clear where the points of objection would be laid. There was no deployment of smoke and mirrors to waylay, mislead or confuse the opposition. And there were no dead cats.
So maybe this is an argument for having a lawyer with forensic skills and a sense of professional responsibility as the next occupant of No. 10. Clarity of thought and serious engagement with the issues is what the country requires. Not another weaver of myths (and certainly not, another former journalist). There are a number of plausible candidates from the profession. Maybe they are worth scrutinising.
The LegalDiarist
In this Week’s Edition
+ LEGAL DIARY OF THE WEEK
– ESG Gains Fresh Support from Reed Smith
– Pinsent Masons Pins Hope on Quilt
– Net Zero – Really? Asks Burges Salmon
– 11KBW Makes Scholarship Award
+ LEGAL COMMENT OF THE WEEK ON inheritance tax, the National Security and Investing Act and the latest advice from the Financial Conduct Authority
+ CONTRIBUTED ARTICLES OF THE WEEK
No Fault Divorce: how family lawyers need to adapt their approach
by Helen Clyne
+ APPOINTMENTS OF THE WEEK at Davitt Jones Bould, Sidley Austin, DMH Stallard
+ E-VENTS at Reed Smith
LEGAL DIARY OF THE WEEK
ESG Gains Fresh Support from Reed Smith
Reed Smith is joining the growing number of law firms which are embracing the Environmental, Social and Governance agenda and setting up a practice to advice their clients on issues of climate change, sustainability, diversity and inclusion.
As they point out, though, this is nothing new in itself – the firm has had a long-standing commitment to help clients regarding their environmental, social and governance requirements. What is new is
the formalization of its ESG legal capabilities so as to bring together around 60 transactional, environmental, corporate, regulatory and disputes lawyers from across the global firm.
“The firm is particularly focused,” says Reed Smith, “on governance, which is seen as the linchpin for ensuring that clients’ ESG plans, compliance efforts and reporting systems are robust, transparent and ethical while satisfying stakeholders’ expectations for accountability.”
London partner Claude Brown, who will be one of the leaders of the practice commented, “ESG is now a permanent and important fixture on the corporate agenda, but a key issue our clients continue to face is a lack of global convergence on ESG regulations, principles, initiatives and reporting standards. We have formed this team to ensure that we are providing the very best support from our leading lawyers across the globe, tapping into the regional insight and industry experience from the wider team will prove a huge asset to clients.”
Other senior lawyers involved in the initiative include Daja Apetz-Dreier (Munich), David Boutcher (London), Hagen Rooke (Singapore), Jennifer Smokelin (Pittsburgh), Rolf Hünermann (Frankfurt), Tyree Jones (Washington, D.C.), and Yves Melin (Brussels).
Amongst a range of prior ESG assignments Reed Smith highlights working with a global conglomerate on its Modern Slavery obligations across all of its operating jurisdictions. View case study
Pinsent Masons Celebrates Hope with Quilt Participation
With what might be regarded as extraordinary prescience Pinsent Masons’ artist-in-residence Susan Stockwell decided to launch a participatory quilt project for the firm in 2020. But then Covid arrived. And, bad though that was, it could have been a lot worse because lock-down and quilt making might be said to complement each other. As Susan Stockwell explains, “Quilting isa bit like meditation, where someone can take time out and forget about everything happening around them. It can be very relaxing.”
So, despite everything, the work went ahead with a number of staff involved in quilt-making workshops and gradually swatches materialised in diverse forms – sewn, drawn, collaged, painted, knitted and even written. David Isaac, then Senior Partner and chair of the Art Committee, made his own unique contribution and the result – called We Are All in This Together? – can now be seen in the firm’s reception area at 30 Crown Place.
Meanwhile earlier this week Susan Stockwell talked to an invited audience about how the project had unfolded and in conjunction with one of the firm’s lawyers, Iain Connor, discussed some of the intellectual property issues which can surface in these kind of projects – as well as in her own work. As Stockwell pointed out, arts students receive almost no guidance on IP issues while at art college yet the issues are increasingly pressing due to the impact of technology.
Overseeing the quilt initiative is art consultant Maggie O’Regan, Director of InSitu art consultancy, www.insitu-art.co.uk who said that while Covid had disrupted the firm’s long-standing artist-in-residence programme activities are now returning to full-strength. As Kevin Boa, the current chair of the art committee, added, “It’s important to reach outside the legal bubble and collaborate with artists such as Susan.”
For more on Susan Stockwell’s work go to www.susanstockwell.co.uk.
Net Zero – Really? asks Burges Salmon
Having attended recently a lecture by Dieter Helm, Professor of Economic Policy at the University of Oxford on the impending peril of climate change it’s difficult to be upbeat about our prospects – not least because Helm was blunt that the key territories determining our survival lie in Africa, the USA and China. Nonetheless every country has a moral duty to do its little bit and so a new report from Burges Salmon on how to achieve Net Zero in rural land use is worth inspecting.
“Rural land will play a key part in meeting the UK’s 2050 Net Zero target, and the impact of this is becoming increasingly visible,” says the firm.” Many people involved in this sector are thinking hard about how it may affect them. Some are taking steps now, others are biding their time, but it is in the minds of most people. There is now widespread national acceptance that fundamental change is necessary to achieving this and wide interest surrounding the application of Net Zero targets to rural land use.”
Based on interviews with a wide range of experts including the Crown Estate, academia, investors and organic farmers there was a focus on the speed of change towards Net Zero. “I’ve been doing my job nearly 30 years and this is one of the most exciting and challenging times there has ever been for land ownership,” commented Paul Sedgwick, Managing Director of Windsor & Rural and Deputy Ranger of the Windsor Estate. “I see a lot of opportunities coming for those that want to go out and grab them.”
Kevin Kennedy, Burges Salmon partner and agricultural specialist, was positive. “I remain inspired that the interviewees are upbeat about the overall potential for change and pragmatic about the need to encourage widespread adoption across the sector – this report will doubtlessly stimulate the discussion and forward-thinking on the subject,” he said.
The full report is available here.
11KBW Makes Scholarship Award
For the second year of its scholarship award for black BPTC students, 11KBW has selected Kir Hunter-West who has a degree in Jurisprudence from the University of Oxford and is presently completing a research LLM at the European University Institute in Florence.
The provision by 11KBW is pretty generous and includes a scholarship award of £30,000 towards tuition fees and maintenance plus mentoring and other support and opportunities. “Many congratulations to Kir from all of us at 11KBW,” said Jane McCafferty QC, Chair of 11KBW’s Equality and Corporate Social Responsibility Committee. “Not only is she a superb lawyer, but she has demonstrated a wide-ranging interest in how the law impacts practically on individuals in a rapidly-changing world. She clearly has a stellar career ahead of her.”
Currently Kir is a Queen Mother Scholar of the Middle Temple and works pro bono at Liberty as an Advice and Information intern. Previously she worked as paralegal in the public law team at Simpson Millar and she was the Equalities Officer at St Anne’s College, Oxford.
LEGAL INSIGHTS OF THE WEEK
TOPIC: The first six months of the National Security and Investment Act 2021
COMMENT BY: Jon McLeod, Partner and Head of Competition and Antitrust at DRD Partnership
“In a high-inflationary environment, amid cost-of-living pressures and an ongoing war, supercharging the ability of Whitehall to meddle with wide swathes of the economy may not be the most obvious regulatory reform to emerge from a Conservative Government.”
“Nevertheless, early days of the new Act’s operations indicate that a proportionate and reasonable approach is generally being taken by the Investment Security Unit (‘ISU’), and as a result very few if any acquisitions have been delayed or deferred as a result of the regime. For the UK’s economic recovery, that is a good thing.”
TOPIC: The dangers of a 100% inheritance tax
COMMENT BY: Ben Taylor, associate at Roythornes Solicitors
“While the 100% inheritance tax concept is certainly an interesting one, and has attracted attention for its controversial nature, it’s ultimately a flawed idea.
“Although alleviating social inequality is an important goal, a 100% rate of IHT by itself would likely hit the middle and lower-value estates hardest, with “super wealthy” or ultra-high net worth individuals less affected. The effective IHT rate for larger estates is usually less than those at the middle and lower end due to the type of assets such estates tend to hold (i.e., those subject to relief for IHT), as well as increased capacity to take expert advice and a greater range of planning options.
“Furthermore, a 100% IHT would make saving for later in life a game of chance with limited planning options. One could spend everything, give it away, or risk losing it all. This uncertainty and risk around saving will have a knock-on effect on the well-being of elderly people and affect the provision of social care, adding pressure to an already strained system.”
TOPIC: Advice this week from the FCA to regulated financial companies that are looking to restructure their debts that they should not set up unfair creditor and shareholder arrangements that will deprive consumers of any redress that they are owed.
COMMENT BY: Sue Moore, partner at Faegre Drinker Biddle & Reath
“This guidance cautions against the use of restructuring processes by regulated firms to reduce the levels of redress payable to customers, and expresses concern if a regulated firm is to continue trading after such a process where the redress liabilities were caused by serious or deliberate misconduct. Nevertheless, the door remains firmly open to the use of restructuring processes, which can be a highly convenient and beneficial way to implement redress programmes.
“Often, the ability to continue trading afterwards is dependent on the restructuring being achieved, with an insolvency or a wind down scheme being the alternative if the restructuring fails, possibly resulting in a worse outcome. Each situation is fact specific, and it will be key to demonstrate that any compromise of redress claims compares favourably with the return to customers in the alternative scenario. The guidance contains useful details about the timing and content of dialogue with the Regulator, who remains an important stakeholder in any such process.”
CONTRIBUTED ARTICLE OF THE WEEK
No Fault Divorce: how family lawyers need to adapt their approach by Helen Clyne
No fault divorce introduced in April 2022 by the Divorce, Dissolution and Separation Act 2020 has generally been lauded as long-overdue reform, that ends the blame game and enables couples to divorce in a more constructive, dignified fashion. But there may be negative consequences, which family lawyers need to respond to appropriately.
It is now not possible to attribute blame to the other spouse for the breakdown of the marriage when applying for a divorce. A simple statement that the marriage has broken down irretrievably is all that is required. Most people considering divorce will welcome this development. But there will be others who would gain some therapeutic benefit from explicitly attributing blame to their spouse, whether it be for an act of adultery or some other reprehensible behaviour. Losing the opportunity to do that has its disadvantages. The individual may not feel heard by their spouse or ‘the system’. The absence of acknowledgement of the reasons for the breakdown of the marriage may prevent them emotionally from being able to engage with other issues that need to be resolved. As family lawyers, we need to be mindful that some clients may find this difficult and be ready to provide appropriate advice and support.
A client in this position may want to attribute blame to their spouse in another context, for example to justify a more favourable financial settlement or more time with their children. Each case must be considered carefully, and advice must be tailored in every situation but In most cases the reasons for the breakdown of a marriage will have no bearing on the way the finances will be divided, or on the arrangements concerning any children involved. Family lawyers need to be realistic with their clients about this, picking only battles that are worth fighting. Allowing clients’ instructions to be driven by a desire for vengeance may boost billing figures, but will do the client no favours, financially, emotionally or in terms of achieving a successful outcome.
We need to acknowledge our clients emotional state, which may itself provide them some therapeutic benefit. Timing of divorce proceedings is also important; sometimes it is clear that a client is not emotionally ready to deal with the legal aspects relating to the end of their marriage and they should be advised to delay. We also need to know our limitations as lawyers; often clients should be encouraged to access appropriate professional therapeutic support.
Helen Clyne is a senior associate in the family team at Debenhams Ottaway.
APPOINTMENTS OF THE WEEK
DAVITT JONES BOULD
Stuart Nash is joining as a partner Davitt Jones Bould (DJB), the UK’s largest firm specialising entirely in real estate law. Previously a partner at Rosenblatt, Nash is dual-qualified with the right to practise in the US and England and Wales, and has over 25 years experience in property development and construction dispute resolution.
He was a member of the Drafting Committee of the Society of the Construction Law and was involved in producing the Delay and Disruption Protocol to assist all parties to the construction process when dealing with time and delay matters. This established “best practice” guidelines which can be referred to pre-contract, during the lifetime of the contract, and if a dispute arises.
“Stuart Nash is without doubt one of the leading construction lawyers in the UK,” said Chief Executive Officer of DJB Peter Allinson. “The calibre of clients and projects that he takes on is so impressive that we look forward to the rest of the team coming together to work alongside him. DJB only engages senior professionals with more than 10 years’ post qualification experience, and we do our best to support them by freeing them of any supervision, management or business development responsibilities. With our people-centric approach, Stuart will be able to focus entirely on clients, who will certainly benefit from his unrivalled expertise.”
SIDLEY AUSTIN
Tony Downes is joining Sidley Austin LLP as a partner in the firm’s M&A and Private Equity practice. Previously a partner in the Private Equity & M&A group at Proskauer, Downes’ practice includes private equity transactions, public and private M&A and investments, joint ventures, and other complex cross-border corporate matters, as well as advising in relation to high value commercial matters in the sports and betting and gaming industries.
Downes has also held a number of roles in the sports and sports betting industries, including as the Deputy General Counsel of Gala Coral and as the legal director at the International Boxing Association, the World Series of Boxing, and the Ladies European Tour, and he has worked on numerous high-profile sports-related matters.
“We are excited to welcome Tony to Sidley, as his skillset and experience provide a wonderful complement to our Private Equity practice in London,” said Thomas Thesing, a member of Sidley’s Management and Executive Committees and managing partner of Sidley’s office in London. “As our Private Equity practice continues to grow, Tony’s relationships with several of our private equity clients will enhance our excellent client service.”
DMH STALLARD
Jo Rovery is joining DMH Stallard’s real estate team as a partner in the Gatwick office. She joins from Knights having advised a broad spectrum of clients including private and corporate property investors, developers, charities, traders, retailers, banks and pension funds on commercial, real estate and banking matters.
“Jo brings a superb track record with her that will undoubtedly strengthen our regional practice,” said Tina George, Head of Real Estate at DMH Stallard. “I’m looking forward to working with her as we continue to meet the ever-growing demand for the highest quality advice from clients in the southeast and wider UK.”
DMH Stallard is a UK Top 100 law firm employing over 300 staff across six offices in London, Surrey and Sussex.
E-VENTS
REED SMITH Monday 11th July at 1pm
Reed Smith’s presents a digital panel discussion on the newly adopted Digital Services Act (DSA).
Sophie Goossens (European copyright expert and Partner at the firm) is will hosting the discussion alongside her Reed Smith colleagues Elle Todd (London-based leading digital and data lawyer) and Wim Vandenberghe (Brussels-based EU regulatory partner).
Each expert will speak to the following questions:
- How will the package reshape the digital media and music industries?
- How far do the measures go in the protection of children, advertising and dark patterns?
- Will the new regulation give the EU adequate firepower to curb Big Tech?
To take part go to the registration link here.