Edward Fennell’s LEGAL DIARY

Diary stories, comment, insights and appointments from the Legal World

Friday 16 September 2022 Editorial: fennell.edward@yahoo.com

SHORT THOUGHT FOR THE WEEK: WISE COUNSEL

Much has been made of the transgendering from QC to KC of the elite members of the advocacy profession. But maybe – like so many aspects of the nation’s Royal infrastructure – the whole set-up now warrants re-examination. After all, the function has changed immeasurably since the embryo of the title back around 1600. Then – and for the next couple of centuries as the numbers grew from a handful to well over one hundred – the understanding was that KC/QC was a genuinely royal appointment and the lawyers so nominated would act for ‘the Crown’ in the courts. Indeed, they had to get special approval to act for the Defence. Now, of course, that has all been forgotten. It is a status symbol and a mark of entitlement.

But given that all such privileges are being questioned maybe the time has come to close it all down (along with the special wigs and the costume). If you want a rating for a barrister or solicitor then check out one or more of the excellent annual directories to the profession.  They will be up-to-date and inclusive. Just like a modern monarch should be.

The LegalDiarist

In this week’s edition

+ LEGAL DIARY OF THE WEEK

• White Collar Clean up at Cadwalader
• Cooley’s Nails Well-Being
• ‘Just give us the data’, in-house lawyers are told
• Cloud-based fax has siler lining

+ LEGAL COMMENT OF THE WEEK on challenges to new government of Liz Truss

+ APPOINTMENTS OF THE WEEK at Hogan Lovells, Hunters and Payne Hicks Beach

LEGAL DIARY OF THE WEEK

White Collar Clean up at Cadwalader

In the annals of judicial infamy the LIBOR cases may not feature as highly as the Post Office prosecutions of its sub-Post Masters but they still warrant significant status due to the legal muddle, buck-passing and sleight of hand which led to the junior traders paying the price for the policies of their superiors. 

LIBOR has been in the news again this past week due to the over-turning of the conviction of Deutsche Bank’s Mick Curtler in the USA and the order to re-pay his $300,000 fine. Curtler was just one of several such in the US. Meanwhile in the UK Tom Hayes is seeking to overturn his conviction.

In all such cases, however, it needs determined and imaginative lawyers to pursue justice. In the US Kenneth M. Breen and Phara A. Guberman stand out having chalked up a result in what is regarded as one of the most high-profile white collar crime cases in US legal history. In a precedent-setting appellate victory in U.S. v. Connolly, et al., the Second Circuit Court of Appeals overturned all counts of conviction and directed a judgment of acquittal in favour of the duo’s client, Matthew Connolly, the lead defendant in the case and the first U.S.-based trader to be charged with alleged manipulation of LIBOR. Their win represents the only LIBOR-related criminal case in the U.S. or U.K. to be overturned on sufficiency of the evidence and is regarded as now setting an important standard for all future wire fraud prosecutions.

This was all achieved while working for Paul Hastings in New York where Breen had spent ten years as chair of the firm’s global investigations and white collar defence team. But now both Breen and Guberman have quit Hastings for the White Collar Defense and Investigations Group in New York. Cadwalader. They must have been made an offer they could not refuse.

Cooley’s Nails Well-Being

Another US law firm doing the right thing is Cooley which has just been given the Fitwel tick of approval for its ability to support health and wellbeing in its new office at 22 Bishopsgate. Fitwel, is reckoned to be the world’s leading health and wellbeing certification system for buildings and the firm decided to partner with it when fitting out its new premises. This meant that facilities such as standing desks and wellness rooms, access to natural daylight and ventilation were designed to meet Fitwell’s assessment criteria. Menwhile policies were also introduced to encourage the use of stairs rather than lifts, tomake available healthy food and ensure that there were multiple water bottle refilling stations.

“Moving to 22 Bishopsgate gave us the opportunity to create a work space that provided an exemplary level of health and wellbeing support for our people and our guests, and we are proud to receive this external validation from Fitwel,” said Justin Stock, London Managing Partner at Cooley.

This is not Cooley’s only ‘healthy working’ initiative. A couple of years ago it reaffirmed its commitment to the mental health and wellbeing of its people by signing on to the Mindful Business Charter (a collective of businesses and law firms that share a commitment to combatting avoidable stress in the workplace and promoting healthier and more effective ways of working). And more recently it introduced ‘Modern Health’, an app providing personal therapy and coaching, as well as online advice and resources. No excuses then for falling by the wayside.

‘Just give us the data’, in-house lawyers are told

The dual-pronged challenge for in-house legal teams of managing risk while workloads continue to increase has been spotlighted by legal, risk and compliance professionals in the latest survey undertaken by LOD and SYKE. In fact, ensuring risk is tackled appropriately was cited by 68% of legal leaders as their top strategic focus reflecting a trend that has been gathering pace in recent years alongside expansion in the volume of work.

 “Astute GCs are meeting this dual-pronged challenge by ensuring that their team’s service delivery is fit-for-purpose, not gold-plated,” said Tom Hartley, LOD GROUP CEO. “This isn’t to suggest the balancing act of mitigating risk and getting your work done is easy – it’s a tightrope that requires both legal and commercial experience to know where to focus your efforts.”

The response has been reflected in firms’ investment strategies. Top of the list- obviously –  is to hire more lawyers of the right quality – not necessarily easy when the legal recruitment market is getting tighter. Which in itself is leading to more moves to provide more and better career development and training opportunities. Meanwhile there is more recruitment of risk and compliance expertise and use of outsourcing.

In terms of the internal recognition of the contribution of in-house lawyers the key requirement seems to be use of data. The more that you can offer hard evidence of what you are doing the more that colleagues will sit up and pay notice.

“Three hallmarks of a successful legal team emerge from this year’s survey: visibility, flexibility, and vision,” said Hartley. “Visibility in two ways – the team is visible across your organisation as a vital department, and also visibility in the form of objective data about the contracts, risk levels and matters being run by the legal team. Flexibility in how the team is resourced – armed with data the team can scale up and down with the right blend of specialities and seniority. Finally, vision in having a strategy that underpins its operations. This combination of characteristics creates a legal function that is agile, effective and able to prove its value to the business.”

Cloud-based fax has siler lining

For those of us for whom ‘sending a fax’ brings back memories of going to a remote High Street office (which usually also offered printing services) just before closing time in the hope of sending off a vital document just before ‘end of play’ it comes as a bit of a jolt to be reminded that faxing is still integral to modern lawyering. Except now of course it is mostly ‘in the cloud’.

A survey by eFax, a provider of digital fax services, revealed that around 33 percent of the law firms surveyed use cloud-based fax systems.

 “When it comes to communicating in the legal profession, faxing still plays an important role,” said  Scott Wilson, Vice President of Sales and Service at eFax. “It has stood the test of time thanks to its tried-and-tested security and reliability, as well as its time-stamping functionality for legally binding documents.

“In the legal sector, many documents still need to be printed and managed in hard copy – for example, legally binding contracts require authorised signatures or company stamps for them to be valid. These documents often contain sensitive and confidential information, which calls for a highly secure communication method that’s also fast and easy to use.”

By contrast it is said that email is vulnerable to interception and hacking. Moreover Cloud-based faxing doesn’t need paper, which in turn reduces a company’s running costs and environmental footprint. ‘Cloud fax is also able to transmit faxes to multiple selected recipients and enable high-quality file attachments such as hi-res documents, images and even video clips to be shared simultaneously for increased team productivity’. Really, who knew?

LEGAL COMMENT OF THE WEEK

TOPIC: European Commission plans to introduce a Cyber Resilience Act

COMMENT BY: Chris Jeffery, Partner, Taylor Wessing

“The EC’s Cyber Resilience Act will complement NIS2 and the Data Act to help ensure the cybersecurity of connected devices.  The UK is in the latter stages of enacting the Product Security and Telecommunications Infrastructure Bill which (among other things) covers similar territory.  Those caught by the various pieces of legislation will need to get to grips with a variety of compliance points as they come into effect.”

TOPIC: The data privacy policies which will be inherited by the new UK Prime Minister, Liz Truss and the implications for business.

COMMENT FROM:  Eduardo Ustaran, Co-Head of the Privacy and Cybersecurity practice at Hogan Lovells

“The new Prime Minister is inheriting an ongoing data protection reform of great significance for the UK economy.  The current direction of travel suggests that this reform will not drastically change the existing framework but a more radical departure from any law originating from the EU, like the GDPR, could have implications for the ongoing flow of data between the EU and the UK.

“Pulling out of the European Convention on Human Rights would definitely have an effect on the adequacy of transfers of data from the EU to the UK. Although this seems unlikely at present, this is an issue of very direct practical implications for UK businesses.”

APPOINTMENTS OF THE WEEK

HOGAN LOVELLS

John Livesey (above) is joining Hogan Lovells as a partner in the firm’s global Private Equity practice based in the London office. He will collaborate closely with transactional colleagues throughout the firm’s network and will work alongside the secondaries team led by partners Ed Harris and Leanne Moezi.

Previously at Linklaters, where he spent four years in the Madrid office, Livesey has advised international private equity clients on transactions across a number of sectors, including financial institutions, infrastructure, mining, technology and retail. He is bilingual in English and Spanish, and has an active practice advising on Spanish and Latin America-related transactions.

“Private capital deal activity has grown exponentially in recent years, and is a priority focus for us as a firm,” said Matthias Jaletzke, Global Head of the Private Equity & Funds practice and Head of the Private Capital Industry Sector. “This hiring demonstrates our commitment to meeting the increasing demand from our clients in London.”

HUNTERS LAW

Olivia Piercy (above) has joined Hunters Law as a Partner in the Family Department. She was previously at Bindmans, where she headed the Family Department and ran a diverse practice ranging from High Net Worth financial claims on divorce to surrogacy, and from cross-border enforcement of financial orders to child abduction work.

Piercy had been ranked as a “Next Generation Partner” by The Legal 500 and is praised by colleagues as “clever, focused and tenacious” with “impressive knowledge and experience”. As a domestic abuse specialist and advocate, she sits on Resolution’s Domestic Abuse Committee, and as a member of Mr Justice Cobb’s Private Law Working Group.

“Olivia brings a unique combination of legal talent and business dynamism, making her a fantastic addition to our team at a time of great change and opportunity in family law practice,” said Henry Hood, Senior Partner and Head of Hunters’ Family department.

PAYNE HICKS BEACH

Mark Jones (above) is joining Payne Hicks Beach as a partner and head of the newly established Criminal & Regulatory Defence practice at the firm. Jones has broad experience across the business crime and compliance practice area and is described as having  a ‘stellar background’ of specialising in criminal and regulatory defence work and investigations for both individuals and corporates. This is frequently multi-jurisdictional with a particular focus on the US and Far East, as well as being complex and high profile. 

“I am delighted that we are adding further talent and expertise to the firm’s multi-talented litigation practice.  We see it is as essential that Payne Hicks Beach can assist future clients with criminal law and regulatory issues,” says Dominic Crossley, Head of the Dispute Resolution Department.  “Mark’s arrival will ensure that our newest team hits the ground running, with further growth to follow shortly. He has vast experience, a great reputation and is a wonderfully calm person to call on in a crisis.” 

The Legal Diarist is travelling in Europe currently but is still keeping a close eye on events at home – especially in London on Monday. We will be publishing again next Friday notwithstanding the Mediterranean storms which battered us last night and leaving us powerless!

So please continues to send your legal diary stories and insights to fennell.edward@yahoo.com