Edward Fennell’s LEGAL DIARY

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

October 14 2022

Editorial contact: fennell.edward@yahoo.com

SHORT THOUGHT FOR THE WEEK: DANGERS OF DRINK

The news that Stephen Cahill, a senior parter at Deloitte who ran the firm’s executive compensation practice, is being allowed to resign (rather than being sacked) following an inebriated racist rant at Royal Ascot has stirred up a wasp’s nest of controversy.

Sadly, Cahill is by no means the only high profile City professional whose career has ended in such circumstances due to expressions of racial or sexual abuse. The legal world too has suffered with Baker McKenzie coming to mind a few years ago. Indeed, such is the level of risk that two thoughts occur.

First, given the serious effects of alcohol on releasing inhibitions (on even the most senior people) maybe corporate events – especially jollies – should now move away from large scale consumption of booze. It’s just not worth the risk.

Second, what does this uninhibited talk reveal about people’s real attitudes? It is understood that ‘self-censorship’ is now the reality in most work places. Are we actually living in a fantasy world in which many (most) people’s professed attitudes and their authentic feelings are wildly at odds. And when we talk about people bringing their ‘real selves’ to work, what do we actually mean by that?

TheLegalDiarist

In this week’s edition

+ LEGAL DIARY OF THE WEEK

– Post Office Managers: The Agony Goes On

– Congratulations Zaiwalla & Co – 1982-2022!

– War for Talent Not Going Away

– Video Gaming in the Lawless Wild West

+ LEGAL COMMENT OF THE WEEK from Morgan Lewis, the Association of Costs Lawyers and CILEX

+ CONTRIBUTED ARTICLE OF THE WEEK

THE ‘RETURN TO THE OFFICE’ DEBATE

Junior lawyers benefit from continuing flexibility suggests Nathan Peart, Managing Director, Associate Practice Group, Major, Lindsey & Africa

+ APPOINTMENTS OF THE WEEK

LEGAL DIARY OF THE WEEK

Post Office Managers: The Agony Goes On

Anyone who witnessed the interview on BBC News earlier this week with one of the Fujitsu board members during the period of the Post Office Horizon scandal would have had a sudden moment of crystal clear understanding. If someone of this character was running the business then it should be no surprise that things went as badly wrong as they did. No suggestion of any apology – ‘I don’t know what I would apologise for’ – and no concession of any fault or failure.

Such stone-walling would have done little to ease the pain of the victims of the scandal. And there is little surprise that recent research has shown “worryingly” high levels of mental illness amongst those sub-postmasters who had been affected.

The research by the Evidence Based Justice Lab at the University of Exeter and Professor Jeff Kukucka from Towson University, has been submitted to the ongoing Post Office Horizon IT Inquiry. Already it is clear that the Postmasters and Postmistresses affected have experienced financial stress, unemployment, ongoing mental health problems, and social and relationship breakdowns.

“Our results suggest that victims of the Post Office Scandal experience mental illness symptoms at worryingly high levels – compared to the general population, and also other high-risk populations,” said Dr Bethany Growns from the research team. “These estimates of post-traumatic stress and depressive symptoms are similar – and in some cases higher – than those found in studies investigating the mental health outcomes of exonerees internationally and are far higher than estimates for depression and post-traumatic stress disorder in the UK general population and in other at-risk groups.

“Our analysis shows levels of mental health harms did not differ appreciably between individuals who had a criminal conviction and individuals who had been investigated but never convicted or found liable, nor between individuals who had and had not received financial compensation for the injustice they experienced, nor between those with full-time employment or those employed part-time or unemployed.”

In other words, the affect was devastating on everyone affected. Maybe that is something to apologise for?

Congratulations Zaiwalla & Co – 1982-2022!

Well-earned celebrations – Sarosh Zaiwalla (centre)

The Victoria & Albert Museum was the site this week for the celebratory events around the 40th anniversary of the establishment by Sarosh Zaiwalla of Zaiwalla & Co, one of London’s best known firms for taking on high profile contentious cases especially with links to Asia.

The V&A’s party space was packed full of almost 300 guests including a bevy of glitterati from the legal establishment and members of the House of Lords together with ambassadors. Even the Mayor Councillor Sunil Chopra of Southwark and his wife Mayoress Mrs Varsha Chopra bravely ventured north of the river to attend.

A toast was offered by I. Stephanie Boyce – the immediate past President of the Law Society and an appreciation by the guest-of-honour industrialist, Mr G P Hinduja. Also present was Baroness Royall of Blaisdon, the Principal of Sommerville College, Oxford where the firm provides a scholarship for Indian students.

Zaiwalla’s prides itself as being the first law firm in the City of London to be founded by a non-white lawyer. Its history features a number of challenges from London lawyers unused to seeing an Asian lawyer in the courts dealing with big ticket cases. Among its recent clients have been Bank Mellat of Iran and the Central Bank of Venezuela and, currently, a past President of Albania (who is before the Special Immigration Appeals Commission fighting the Home Secretary’s decision that his presence is “not deemed conducive to the public good.”) Also included as the firm’s individual clients have been the Dalai Lama and boxer Chris Eubank. So quite a mix!

“It is a firm that has always had diversity at its very core and has built a close-knit team of multicultural, multilingual expert lawyers that form the bedrock of its success,” commented Clive Coleman, the well-known former BBC Legal Correspondent who acted as Master of |Ceremonies. And then a very good time was had by all.

War for Talent Not Going Away

Yet further evidence, following from last week, that the good old ‘war for talent’ is obsessing senior partners.

Byfield, the PR agency, surveyed managing partners across leading law firms, including Reed Smith, Mishcon de Reya, Payne Hicks Beach, Forsters and Fieldfisher. Alongside concerns regarding ESG and sustainability, hybrid working, and culture and conduct, it was the War for Talent which was highlighted as occupying people’s minds:

  • 95% of respondents placed WAR FOR TALENT in their top 5 business concerns, with 90% placing it as a top five reputational challenge.
  • 64% of respondents placed the challenges regarding HYBRID WORKINGin their top five business concerns. It received the second highest number of votes after the war for talent.
  • Client pressure on FEES, controlling RISING COSTS during inflation, and CULTURE and CONDUCT made up the rest of the top five business concern lists.

It’s no surprise to see the war for talent and cost control topping the list of concerns for law firm leaders across business and reputational concerns,” commented Byfield Director Michael Evans. “People-driven businesses need the right people to function and grow. We now see multiple pressure points, with record-breaking NQ salaries, compression in the middle ranks, an increasingly adverse business climate, high inflation and an incredibly strong dollar that hands an even greater advantage on the face of it to US firms.”

Video Gaming in the Lawless Wild West

Queen Mary University of London and the University of Bristol have come out strongly over the deficiencies and mismatch in legislation between jurisdictions in how copyright protects video games. This is coming at a time, of course, when the video gaming industry is enjoying extraordinary growth to the point that it now exceeds other creative industries, such as film and music sectors in terms of consumer popularity and revenue generated. (In fact,  revenue numbers for the video game industry are forecast to increase to USD 180 billion in 2022 and USD 200 billion in 2023).

The research, commissioned by the World Intellectual Property Organisation (WIPO) and presented in Geneva last month, identified potentially infringing uses and practices that are unique to video games and grouped them based on the point in the video game lifecycle when they occur.

Intellectual property disputes in the video gaming industry typically revolve around copyright, trademarks and patents. Among the key issues, according to the research, are:

– concern for right holders over the use and incorporation of third-party intellectual property into their own product and thus exposing themselves to potential copyright infringement liability. For instance, including real world brands, protected designs, characters, or performances.

– interfering with the integrity of the game including cheating or using private servers

– key selling, which entails unauthorized re-selling of access keys, account transfers and second-hand video games, all of which infringe the exclusive right of distribution and/or making available to the public and are also usually prohibited by license agreements.

Given the global and highly complex nature of the industry, the gaps in harmonization of copyright law, and the interactivity inherent to video games, we are faced with diverse and often unique uses, practices, and strategies that are not easily translated into specific industry-wide policies and strategies,” said Dr Michaela MacDonald of the School of Electronic Engineering and Computer Science at Queen Mary University. It is clear, however, that copyright law and license agreements play a crucial role and will need to be adjusted to ensure a sustainable growth of the industry.”

The researcher’s paper is available here: https://www.wipo.int/edocs/mdocs/enforcement/en/wipo_ace_15/wipo_ace_15_4.pdf and an executive summary of it is available here: WIPO/ACE/15/4/EX

LEGAL COMMENT OF THE WEEK

TOPIC: The White House’s Executive Order on Transatlantic Data Transfers

COMMENT BY: Pulina Whitaker, Co-head of Morgan Lewis’s global privacy and cybersecurity practice in London

Following the Schrems II decision, the European Commission approved new standard contractual clauses and decisions requiring organisations to conduct risk assessments on transatlantic data flows, together with guidance issued by the European Data Protection Board regarding obligations to implement suitable safeguards and security measures to maintain European-level personal data protections. After both the Safe Harbor and Privacy Shield frameworks were invalidated, significant concerns regarding US surveillance laws remained unresolved. This new transatlantic data framework is intended to address specifically those surveillance concerns. The European Commission has not yet published the details but we anticipate that it will entail much more stringent obligations and commitments on US data importers to conduct risk assessments and implement similar safeguards and measures to the European requirements.”

TOPIC: The suspension of the Criminal Bar Association strike action

COMMENT BY: Professor Chris Bones, Chair, Chartered Institute of Legal Executives (CILEX)

CILEX welcomes the resolution that has been reached by the Criminal Bar Association and the Ministry of Justice so that the wheels of justice can resume turning to provide justice for victims.  We now look forward to the government confirming arrangements for lawyers in law firms such that the Bellamy Report is implemented in full.  We also call for a meaningful role for the proposed Advisory Board on Criminal Legal Aid, to maintain confidence in the system, and expect to see the assessment of the real-life impact of the reforms as the first item on its agenda. This should allow any necessary recalibration to be based on data and evidence, to which we look forward.

We also urge the government to move faster to ensure the flexible deployment of lawyers of all types, CILEX Lawyers and solicitors, in criminal legal work especially in implementing the recommendations of the Bellamy review that would allow CILEX Lawyers to act as duty solicitors, improving the operation of the justice system for all.”

TOPIC: The Civil Justice Council’s ‘Costs Working Group’s consultation on possible reforms to the regime

COMMENT BY: Kris Kilsby, Association of Costs Lawyers, Council member

The costs process is not perfect but it is much better than it was in 2013. We urge the working group not to throw the baby out with the bathwater, and instead look to reform rather than remove costs management.

As with other areas of litigation, there is no substitute for experience and the area of costs is no different. The area of costs is conducted at its best when Cost Lawyers are involved and can provide their advice and apply their experience to the process. All our respondents considered that Costs Lawyers provide value to the costs management process and we hope the Civil Justice Council recognises this too.”

Regarding fixed costs: “Judges should have greater discretion to take cases out of the regime. Additional work generated by vulnerability, complexity and parties’ behaviour should be taken into account, or else would-be claimants could find themselves either without representation or with a greater deduction from damages than a claimant in a more straightforward claim of the same value.”

CONTRIBUTED ARTICLE OF THE WEEK

THE ‘RETURN TO THE OFFICE’ DEBATE

Junior lawyers benefit from continuing flexibility suggests Nathan Peart, Managing Director, Associate Practice Group, Major, Lindsey & Africa

Nathan Peart

Remote working is no longer a pipeline dream. We now see ourselves in a world where legal professionals demand both excellent mentorship and hybrid working environments. Indeed, a recent ABA survey found that 44% of young lawyers would leave their current jobs for greater remote working opportunities.

However, as law firms continue to march on with back-to-office mandates, is hybrid working standing up to the realities of firm culture and client demand? Naturally, law firm environments are competitive places – there will be always those who will do anything to outsmart their competition. Arguably, this makes implementing flexible policies such as remote working a complex matter. Regardless, there is still opportunity to embrace flexibility in the legal world.

For example, we have seen in our Gen Z survey that partnership is less desirable than it was several years ago. Instead, there is significant demand for non-partnership track positions – these roles offer challenging work, but with flexibility. Thus, by embracing a different hiring model within the law firm world, leadership teams can open new opportunities for flexibility while not compromising on work quality or healthy competition.

Additionally, another way to offer flexibility and ensure competitive standards are maintained would be to rethink the way that work is assigned. For instance, I have seen a growing trend of younger talent finishing early on Fridays and then completing work on Sundays to get ahead for the week and stave off the ‘Sunday scaries’.

Facilitating a model like this that empowers employees to make their own choices on how and where they work can boost retention and prevent associate burnout by offering respite from an intense working environment. If firms want to encourage junior lawyers back to the office, management teams need to create an environment that offers both flexibility and balance.

APPOINTMENTS OF THE WEEK

Hodge Jones & Allen

Kevin Bristow

Kevin Bristow is joining Hodge Jones & Allen as a new Partner in the firm’s Family Law team. He joins from from Slater Gordon where he was a principal lawyer and headed the London Family Law team.

With over 25 years’ experience in handling family cases Bristow has been ranked in Chambers and Partners since 2014 as a leading expert. He specialises in all aspects of family law, including prenuptial agreements, complex divorce, international child relocation and cohabitation agreements and regularly works with company directors, business leaders, sporting professionals, teachers, accountants, legal, IT professionals, and pilots. He is a ‘Resolution-trained’ collaborative lawyer and has achieved Law Society Advance Family panel status.

“We are so pleased Kevin has joined our team at a time when we are dealing with increasing case matters and clients who need a full family law service,” said Jacqueline Major, Head of the Family team at Hodge Jones & Allen. “Kevin’s track record is clear, he is a top family solicitor who shows great understanding of peoples’ personal circumstances to help them through challenging times in their lives.”

RWK Goodman

Claire Wheatley is joining RWK Goodman as a new partner in the firm’s Corporate team based at the its London office. Previously with EMW Law LLP, Wheatley has over 35 years’ experience in banking and finance law. She has a strong track record, working with lenders and borrowers ranging from institutional lenders, banks, and businesses of all sizes. Most recently, she has worked with a number of lenders on transactional matters and drafting precedent loan and security documents.

“We are delighted to welcome Claire to the firm,” said RWK Goodman’shead of corporate, John North. “Claire is recognised as a leader in her field and we look forward to working with her and to the contribution she will bring to the firm.”

RWK Goodman’s 30-strong Corporate team operates from its offices in London, Bath, Oxford and Swindon.

E- VENTS

KIDS’ LAW

Have a listen to Kids Law’s BRAND NEW episode:
How can we protect young people online?In S3, Ep.2, Alma-Constance and Lucinda Acland speak to Andy Burrows – Head of Child Safety Online Policy with NSPCC. He tells us about common risks that children can face online.
Whether there are laws to protect children online.
What children can do if they experience bullying.
What protections social media platforms use.
Advice about the minimum settings on devices and use of to help children stay safe on the internet.

When Andy was 10 years old he loved playing football and had a Nintendo game boy. He thinks that although he didn’t know what he’d go on to be as an adult, he’s sure he’d be pleased to know he would do a job that can make an impact to help people have safer lives online.
Listen here now!

We reckon that there is slightly more chance of the LegalDiary appearing next week than Liz Truss still being in NO. 10. So please continue to send your legal diary stories plus legal insights and comments to

fennell.edward@yahoo.com

And if you have enjoyed this edition – or even found it useful – then please circulate to colleagues.

Have a good weekend!