Edward Fennell’s LEGAL DIARY
23 September 2022
Diary news plus insights, commentary and appointments from the legal world
Editorial contact: fennell.edward@yahoo.com
SHORT THOUGHT FOR THE WEEK: SPURNING TALENT?
With the royal funeral already consigned to history we return to the ‘same-old, same-old’ as yet another report arrives announcing that the legal sector is short of talent (see ‘Legal Diary’ story below about the latest from Thomson Reuters). And, of course, it is not just the lawyers who cannot find enough high quality recruits. The NHS – for reasons best known to the Government – is not training enough doctors or nurses and the IT and engineering industries find it hard to attract enough able young people. No wonder then that there are now moves to tilt the higher education market in favour of vocationally relevant degrees. Because, for sure, there are plenty of able young people who would swarm for these professions if given the chance.
Proper guidance and investment in people on a larger scale – by the education sector, by employers and by individuals themselves – is the only way out of this muddle. But if we want to curb this cycle of skill shortages in the future then action needs to be taken now. So when will we face up to this reality?
TheLegalDiarist
In this week’s edition
+ LAW DIARY OF THE WEEK
– Situations Vacant: Why law firms can’t recruit
– Living Wage Bill Grows at Browne Jacobson
– A Win-Win result at the National Lottery?
– Headline Change at Global Immigration Firm
plus TIME TO SIGN UP FOR ‘TOUR DE LAW’
CONTRIBUTED ARTICLE OF THE WEEK
WHAT IS THE SIGNIFICANCE OF THE PROHIBITION OF CROSS EXAMINATION IN PERSON? by LUCY REED (Author of ‘The Family Court Without a Lawyer’ Bath Publishing).
LEGAL INSIGHTS OF THE WEEK into the Economic Crime and Corporate Transparency Bill, amendments to the Arbitration Act, the Data Protection and Digital Information Bill and health and safety in your car
LEGAL APPOINTMENTS OF THE WEEK at Dechert and Stevens & Bolton LLP
LEGAL DIARY OF THE WEEK
Situations Vacant: Why law firms can’t recruit
The quest for talent has become the top concern for leaders of law firms of all sizes according to the latest report from Thomson Reuters (‘Talent & ESG Top Concerns as Firms Find New Ways of Working.’) Such is the competition for talent right now that law firms have started looking to recruit lawyers from markets they may not have considered previously.
This has all been accelerated, according to the report, by impatience among young lawyers wanting a better work/life balance and a more flexible lifestyle. “It has been a long-established trend for London law firms to recruit from other areas of the UK as well as from EU-based firms,” says Thomson Reuters. “Now, however, there is a growing reversal of this trend with lawyers looking to leave major UK and US-based firms to move to smaller firms or firms in smaller countries.”
So there is now a vicious circle developing. As frequently reported, the expansion in demand for lawyers’ services leads to an increasing/intolerable workload which has to be undertaken, often, by a shrinking number of lawyers. And this, of course, aggravates their sometimes precarious mental health state.
“Law firms are experiencing many challenges today in attracting and retaining talent,” said Michael Abbott, head of the Thomson Reuters Institute. “Addressing lawyer well-being is one of their key priorities, along with adapting to new ways of working and figuring out how to rebuild their culture.”
Other radical measure not mentioned by the report might include a major investment in Apprenticeship and more (and better) professional and personal development.
Living Wage Bill Grows at Browne Jacobson
Compliments are due no doubt to Browne Jacobson for having put its cheque book where its mouth is (as a committed Living Wage employer) by implementing the Living Wage Foundation’s newly announced rates. These will come into effect immediately to help offset the cost of living crisis for low paid workers.
The firm has been aligned with the principle of the real Living Wage from as far back as 2018 and was formally accredited as a Living Wage Employer by the Living Wage Foundation in 2021. It joins11,000 other employers who have currently signed up to the scheme which introduced new rates of £10.90/hour (£11.95/hour in London) this week. (The rates are linked to living costs and are £1.40ph higher than the Government’s National Minimum Wage).
“The spiralling cost of living is at a level not seen for decades,” said Declan Vaughan, the Browne Jacobson People Director. “Our decision to adopt the new rates with immediate effect recognises the true cost of living crisis and the financial hardship many low paid workers face at this moment in time. We hope that our decision will go some way towards softening the blow for those hardest hit and encourage others to join those employers already committed to the real Living Wage scheme.”
Katherine Chapman, director of the Living Wage Foundation, commented, “We know that the Living Wage is good for employers as well as workers, that’s why the real living wage must continue to be at the heart of solutions to tackle the cost-of-living crisis.”
A Win-Win Result for the National Lottery?
Bird & Bird hit the jackpot when it was announced that its client Allwyn had picked all the right numbers in its bid for the next licence to operate the National Lottery. Allwyn will be dropping the bonus balls on the country’s favourite flutter for a decade from next February.
Having been a beneficiary – via the Heritage Lottery Fund – of the National Lottery on a couple of occasions the LegalDiarist always takes a keen interest in the success of the Lottery. And one trusts that it is now in safe hands for the future. Certainly Bird & Bird went to get lengths to ensure that its client’s legals were watertight. As the firm explained, the project brought together 70 of its lawyers in London across gambling regulation, technology transactions, public procurement, finance, intellectual property, data protection, employment, corporate, tax and dispute resolution. There were also inputs from its people in Prague and Brussels.
“We’re absolutely thrilled for Allwyn, and so excited to see how they will reinvigorate the UK National Lottery for the benefit of millions of players and for good causes across the country,” said Andy Danson, who led the Bird & Bird team. “It has been a real privilege to be able to support this project from start to finish, working incredibly closely with the Allwyn team over a long period in pursuit of a common goal, which has now come to fruition. It has also brought out the best in Bird & Bird – the ability to support clients across multiple legal practice areas and different jurisdictions as part of one unified team delivering cutting edge solutions.”
Given the Bird & Bird’s’s long-standing reputation in the fields of sports, gambling and technology it was a pretty obvious fit. Now we’ll have to wait to see who the real winners are.
Headline Change at Global Immigration Firm
Global warming and Ukraine lead the way in our ‘critical anxiety’ League Table but the question about mass immigration is not far behind. Where the law is concerned the US-based firm of Fragomen is maybe the most significant force worldwide with its 6,000 immigration professionals and support staff based in 60+ offices across the Americas, EMEA and Asia Pacific.
“Fragomen was founded on a strong belief that the most successful immigration policies result from a partnership between government and business, enabling countries to harness the full potential of a global workforce,” says name partner Austin Fragomen (above) who has sculpted the firm to serve business while also ‘giving back’ through pro bono services for non-profit immigration organizations.
But all things must come to an end and Austin Fragomen is now moving up to the role of ‘Chairman Emeritus’ (a role that maybe more UK firms should adopt). Into his shoes are stepping two members of the firm’s Executive Committee, Lance Kaplan and Enrique Gonzalez.
They are, of course, big shoes to fill. But both men have impressive track records – and not just within the firm. For example Gonzalez served as Special Counsel on Immigration and principal advisor to the U.S. Senate on the Border Security, Economic Opportunity, and Immigration Modernization Act – the only comprehensive immigration legislation approved by the U.S. Senate in the past 30 years. Kaplan, meanwhile, developed and executed the firm’s international expansion strategy, significantly growing the global footprint. Looks like they know what they are doing.
TIME TO SIGN UP FOR ‘TOUR DE LAW’
Will you rise to the pedal challenge for Breast Cancer Now’s ambition that by 2050, everyone who develops breast cancer will live and be supported to live well? If so, sign up before Sunday 2 October to join the legal profession in raising vital funds for breast cancer – and keep up to date using the #TourDeLaw hashtag. For further information, contact tourdelaw@breastcancernow.org
CONTRIBUTED ARTICLE OF THE WEEK
WHAT IS THE SIGNIFICANCE OF THE PROHIBITION OF CROSS EXAMINATION IN PERSON?
By LUCY REED
As of 21 July 2022 s65 of the Domestic Abuse Act 2021 prohibiting direct cross examination of those complaining of domestic abuse by their alleged perpetrators (or the reverse) came into force.
The new provisions provide for questioning to be conducted by the parties’ own lawyer or – in the absence of such lawyer (or the probably illusory ‘satisfactory alternative’, which explicitly does not include judges asking questions on behalf of Litigants in Person) – by a ‘Qualified legal representative’ (‘QLR’) appointed by the court and who will carry out a limited ‘cross examination only’ role.
The prohibition will bite either where there is an on-notice protective injunction in force OR where there is a caution, charge or conviction for a ‘specified offence’ against the victim OR where ‘specified evidence’ of domestic abuse is adduced. In addition, the court has a discretion to direct a prohibition should apply in other circumstances.
The new provisions will provide some protection from the ‘retraumatising’ impact upon victims of domestic abuse that direct questioning can represent – but they do have limitations. Quite apart from the fact that the QLR role is very much NOT equivalent to full representation, s65 has ONLY been brought into force for the purposes of cases issued after the commencement date, leaving a significant body of victims involved in existing cases unable to benefit as anticipated. This is likely as a result of insufficient numbers of lawyers signing up to the QLR scheme to enable the courts to meet the need that will arise when the prohibition is triggered.
In post commencement cases, the prohibition will potentially apply not just to hearings where the main issue is determination of allegations of abuse, but to any substantive hearing where evidence is to be heard by alleged perpetrator or victim, even where the subject matter of the evidence and questioning is on a different topic. Whether there are sufficient numbers to service even the smaller subset of post-commencement cases remains to be seen.
The provisions have significant resource implications and, in the event that there are insufficient QLRs to meet demand, will also have serious implications in terms of case progression and delay in outcomes for children.
Lucy Reed is a barrister at St John’s Chambers in Bristol and the 36. Group in London, with twenty years of experience as a family law specialist.
She is the author of The Family Court Without a Lawyer (Bath Publishing, https://bathpublishing.com/products/the-family-court-without-a-lawyer-a-handbook-for-litigants-in-person-4th-edition)
LEGAL INSIGHTS OF THE WEEK
TOPIC: The provisions in the Economic Crime and Corporate Transparency Bill (published yesterday) which add a regulatory objective to the Legal Services Act 2007 (LSA)
COMMENT FROM: Mark Fenhalls KC, Chair of the Bar Council
“Tackling economic crime is essential but creating more regulation will do nothing to address the problem.
“The legal professions are already subject to targeted anti-money laundering legislation and a new regulatory objective may not be compatible with our role in representing clients. At worst it sends the wrong message to the general public about the role of lawyers.
“We’re calling on the Government to amend the Bill as it passes through Parliament. Government should focus on the real problem – fix the issues with Action Fraud and properly fund the investigation and prosecution of economic crime.”
TOPIC: The Law Commission of England and Wales proposal to amend the Arbitration Act 1996 to, among other things, streamline cases and offer greater protections to arbitrators
COMMENT FROM: Nick Storrs, partner and international arbitration expert, Taylor Wessing
“A review of the Arbitration Act is very welcome and it is good to see a comprehensive consultation. Issues such as summary proceedings and emergency relief in arbitration have been in debate now for some time and so ensuring there is a statutory framework which responds to these issues will be very welcome.
“The potential for summary disposal of claims has long been a topic of debate. If the proposals are adopted it will be interesting to see how they are used in practice. I’m not sure they are necessary or desirable, but equally any mechanism for improving the efficiency of arbitration should be considered.
“On the question of emergency relief, the Gerald Metals case has in England created some uncertainty around the role of the Courts in cases where early urgent relief is sought. If that can be addressed through amendments to the Act then that will provide welcome clarification and help draw clearer lines between the Courts’ role and the role of an emergency arbitrator.”
TOPIC: The Data Protection and Digital Information Bill and the outcome of the Department of Digital, Culture, Media and Sport (DCMS)’s consultation, ‘Data: A New Direction’.
COMMENT FROM: Rob Masson, CEO, The DPO Centre
“The DCMS consultation on data protection is continuing to cause confusion and, until more guidance is published on what these changes will mean for businesses, it is likely to remain that way. I would hope the new prime minister will listen to the industry that has been working hard to make the UK a world leader in data protection.
“My concern is that organisations will try to change before the new framework is in place. Organisations need to understand that any regulatory change is unlikely to be realised for many months, or even years from now. Therefore, businesses should be mindful of the fact that, for the foreseeable future, the UK GDPR as it stands still applies.”
TOPIC: The findings of the recent White House report (“Climate-Crypto Report”) on Climate and Energy Implications of Crypto-Assets in the United States
COMMENT FROM: Peter Y. Malyshev, Partner, Financial Services, Cadwalader
“First, the Climate-Crypto Report finds that crypto-assets use a significant amount of electricity – globally equal to the amount of electricity used by Argentina or Australia. It also found that not all crypto-assets technologies consume the same amount of power, with Proof of Work (“PoW”) mechanisms far exceeding the power usage the Proof of Stake (“PoS”) processes.
“Second, the Climate-Crypto Report found that there is a sizable impact on the environment of anthropogenic greenhouse gas (“GHG”) emissions associated with crypto-assets markets. In addition to the increased demand on the power grid, generation of crypto-assets also generates noise pollution, water impact, and a lot of other environmental waste.”
TOPIC: Health and Safety in Your Motor Vehicle
COMMENT FROM: Dominic Smith, the Director at Patterson Law (the UK’s largest road traffic offence specialist).
“It is not automatically an offence simply to have a dirty vehicle. If the vehicle is so dirty that it means you cannot read the registration plate, or that you can no longer see the lights or indicators, then that could be an offence of driving with a vehicle with a defect, which usually carries a fine, unless the defect is such that it causes a danger to other road users in which case it would carry 3 points.
“What you do need to be careful of is if the windscreen or windows are dirty. There is an offence of ‘driving a vehicle whilst not in proper control or without a full view of the traffic ahead, which carries 3 points and a £100 fixed penalty. It’s the same offence that could be charged if you were eating or smoking whilst driving, or driving in flip-flops.
“There is no automatic definition as to what ‘not having full view’ means, it will be dependent on its own facts. It doesn’t just apply to dirty windscreens, but also frosted windows, iced windscreens and even placing a satnav holder in the wrong place.”
APPOINTMENTS OF THE WEEK
DECHERT
Colin Sharpsmith (above) has returned to Dechert as a partner in the financial services and investment management practice based in London. In what seems to be a growing trend at the firm for former associates to leave and then return with partner rank, Sharpsmith has gained broad experience with Kirkland & Ellis in financial services regulation with particular focus on investment funds and the rules governing their management and marketing in the UK and Europe. He has also been a key member of regulatory working groups such as the AIMA working group for the FSA’s first Remuneration Code.
“Colin’s wide-ranging regulatory expertise advising asset managers and private equity firms will be an excellent addition to our investment management practice in London,” said Gus Black, co-chair of Dechert’s global financial services group and chair of Dechert’s London Management Committee. “Colin’s return also speaks to our culture. We are thrilled to welcome him back.”
Stevens & Bolton LLP
Caroline DeLaney has joined Stevens & Bolton LLP as a partner in the firm’s the real estate disputes team. She joins from Rosenblatt where she dealt with all aspects of commercial and residential property disputes including litigation, arbitration and mediation as well as tribunal claims and Land Registry adjudications.
DeLaney has significant expertise in property development work, with a particular interest in ‘rights of light’ claims. Her clients comprise retailers, developers, property companies, insolvency practitioners, institutional investors and trusts, as well as high-worth individuals and entrepreneurs. She is also an accredited civil and commercial mediator.
DeLaney’s appointment – along with that of employment lawyer Andy Williams – follows the recent hires of corporate and insurance regulatory specialist Heidi Sawtell and private client expert Gareth Walliss and brings the total number of partners at the ‘all equity’ firm to a total of 44.
E-VENTS
A WEBINAR FROM TWENTY ESSEX
Alternative Dispute Resolution: Arbitration vs Litigation
As modes of dispute resolution, arbitration and litigation are often contrasted. However, the two are not necessarily opposites or at odds against each other and one may be more appropriate over the other depending on the nature of the dispute and the relationship of the parties.
Twenty Essex and Frasers Law Company would like to invite you to a webinar that will focus on alternative dispute resolution, particularly on the key differences between arbitration and litigation. The online session will commence at 9:00am (London time) / 3:00pm (Vietnam time) / 4:00pm (Singapore time) on 27 September 2022.
Please feel free to share with your colleagues who may be interested in attending. Please register via the registration link no later than 26 September 2022.
We look forward to seeing you at our webinar.