Edward Fennell’s Legal Diary – Edition 63

Friday June 25th 2021 Edition 63

Diary news, commentary, insights, appointments and e-vents from the legal world

SHORT THOUGHT OF THE WEEK

Digital transformation – that’s the big theme whoch comes through much of our coverage today. It was at the heart of Legal Geek’s North American virtual conference on Tuesday. It was the subject of the winning essay for this year’s City of London Solicitors’ Company Prize. And DucTrang, Managing Director at Major, Lindsey & Africa discusses it in his contributed article below.

As with the industrial revolution of the late 18^th/ early 19^th centuries, the consequences of a wholesale digital adoption will be enormous for all facets of the legal sector – financially and socially as well as in terms of process. But is there any chance of a return – say in 50 years time – to the artisan lawyer? What’s the possibility that, two generations away, it will be cool to go to a little lawyer’s workshop above a deli in the High Street?

For family law that could well work. But, of course, there is always the question of professional ethics. In a powerful piece below Steven Glasser of Laurus comments, “I’ve come across solicitors in my work who, without a shadow of a doubt, string out cases by generating correspondence and ramping up the acrimony so they go on for longer and generate larger fees.” Can ‘digital transformation’ remedy that?

The LegalDiarist

In this week’s edition

+ THIS WEEK’S LEGAL DIARY

– Speeding up in Slowville – courtesy of Legal Geek

– Slaughtering Low productivity

– Mediators put nexa on the line

– Corporate Counsel Benchmarking

+ CONTRIBUTED ARTICLES OF THE WEEK

– DIGITAL TRANSFORMATION: CAN IT GO FASTER? asks Duc Trang, Managing Director at Major, Lindsey & Africa

– ETHICAL FEES CAN BRING FAMILY LAWTERS COMMERCIAL SUCCESS argues Steven Glasser of Laurus

-EUROPEAN REGULATORS LAY OUT THEIR EXPECTATIONS ON INTERNATIONAL DATA TRANSFERS explains Eduardo Ustaran of Hogan Lovells

+ LEGAL COMMENT OF THE WEEK

The Ministry of Justice has released its Quarterly Family Court Statistics: October-December 2020. Comments from Wedlake Bell, Seddons and Thomas Mansfield

+APPOINTMENTS OF THE WEEK from 11KBW and Thomas Mansfield

+ E-VENTS with Policy Exchange

THIS WEEK’S LEGAL DIARY

Speeding up in Slowville – courtesy of Legal Geek

Highpoint for the Legal Diary this week was catching Tuesday’s workshop ‘Captain No-Code and the Quest for Super-powers’ as part of  Legal Geek’s North America Conference. Against a background of a stormy, rainlashed super-metropolis a team of superheroes was combatting the powers of Slowville – the deadweight of an anti-technology dystopia. As the blurb said, “Join this interactive session for legal innovation as you’ve never seen it before. Join our speakers as they embark on a journey through Slowville – the city consumed by manual, time-intensive tasks – to find and unlock super-powers.”

An impressive panel – including Nikki Shaver, managing director, Innovation and Knowledge at Paul Hastings and Adam Curphey Innovation Engagement Senior Manager at Reed Smith – explained their heroic vision of life beyond Slowville based on ever more sophisticated ‘hands-free’ technology to the whoops of an admiring audience. (One panel member even turned up in a blue tee shirt and a red mask – although these days one cannot tell whether he was actually wearing these or whether they had been mischievously teched on to him). Definitely worth a catch-up watch if you have access to a ticket. https://www.legalgeek.co/north-america/

Slaughtering Low Productivity

Talking of escape from Slowville, Charlie Wells, a Trainee Solicitor from Slaughter and May, was the winner of this year’s City of London Solicitors’ Company Prize with an essay on the theme “How must City law firms adapt, including through using the lessons learnt from present challenges, to thrive in the future?”

Adopting and developing legal technology – very much along the lines of the Legal Geek event – and following its logic to the full was a key part of Wells’ message.

“To stand apart from competitors, firms should reimagine their approach to developing lawyers with a reorientation of resources,” he wrote. “To prevent lawyers being held back by low productivity processes, firms should invest in digital solutions that enable lawyers to focus on more enriching work. Firms should rapidly adopt and integrate technology, including cloud software and artificial intelligence, into work processes to reduce time spent on tasks such as due diligence.”

Added on to that, however, was the proposal to ‘outsource much more to third party lawyers and reduce costs by cutting superfluous backroom staff, which has been made possible by remote working. Indeed, a firm could retain staff, despite fierce competition for talent, by allowing lawyers to focus on complex legal work rather than mundane processes.”

Wells’ vision makes sense but it suggests that the future of the legal industry could be based on a kind of gig-economy with a secure elite and a dependent flexible and remote workforce. Will definitely suit many – but maybe not all.

Read the article in full in the Summer Edition of City Solicitor Magazine (p.28): http://www.citysolicitormagazine.com/old-issues/city-solicitor-112.pdf 

Mediators put nex on the line (for capital offence?)

If we are talking about doing things differently then worth taking a look at nexa law which has just launched its alternative dispute resolution offering under the branding ‘nexamediate’.

As nexa points out, its new mediation team can ‘help resolve commercial, workplace and family disputes’. The roster of team members is pretty impressive. All of them are battle-hardened and have an impressive track record of previous firms behind them including Ince & Co, Taylor Wessing, Bond Dickinson as well as chambers’ experience and big public sector organisations. “Every member of the team has a background in dispute resolution as a solicitor or barrister, which gives each member a valuable insight into the dynamics of a dispute from the perspective of both a mediator and an interested party,” says the firm.

Probably most prominent is James Wilson, previously a senior partner of Ince & Co where he led the shipping disputes team and advised many of the world’s leading shipowners and insurers. “He now uses his expertise to mediate maritime, insurance and trade disputes,” says Nexa. Meanwhile Jane Gunn aka The Barefoot Meditor and author of “How to Beat Bedlam in the Boardroom and Boredom in the Bedroom” was previously a city solicitor at Taylor Wessing and is now a mediator, author and speaker.

Like many of the new-look providers in the industry Nexa’s operations are based on experienced lawyers wanting to operate in a different way. “nexa law is becoming the platform of choice for ambitious and autonomous self-employed lawyers thanks to our flexible approach and supportive culture,” said the nexa Co-CEO Nigel Clark. 

Corporate Counsel Benchmarking

Just out yesterday was the annual legal benchmarking survey devised by the The Association of Corporate Counsel (ACC) in conjunction with Major, Lindsey & Africa (MLA) which tracks performance and metrics within almost 500 legal departments in 24 industries in 30 countries.“The report gives law department leaders a wealth of data for peer comparisons and benchmarking across a variety of metrics in order to assess performance, results, and efficiency and take a data-driven approach to charting the legal operational and managerial goals to be achieved.” said Veta T. Richardson, president & CEO of ACC. 

According to the report ‘Tracking diversity remains a challenge’ – though with considerable variation across company sizes. One of the key findings was that 29 percent of companies now track internal diversity – and of those that do about half have a formal strategy to improve in this area.

By contrast, however, the report also shows that that the vast majority (74%) of corporate counsel in the survey specifically measure the diversity of the teams within the firms they engage with particular interest in the number responsible partners (49%), promotions to partner (25%) and the composition of leadership in the firm (22%).

Interestingly, there was also growing evidence of use of alternative legal service providers with 12% of companies increasing their usage of these providers in 2020. Full survey results, broken down further by company revenue, industry, legal department size, and company type, are available on ACC’s website.

+ CONTRIBUTED ARTICLES OF THE WEEK

DIGITAL TRANSFORMATION: CAN IT GO FASTER?

ask Duc Trang, Managing Director at Major, Lindsey & Africa

In the throes of the pandemic, both law firms and in-house legal teams rushed to embrace digital tools to enable remote work. However, despite video calls and remote working becoming the norm, too many organisations continue to fail to make the most of the potential for meaningful digital transformation.

Research shows that top performing organisations employ five times more data analytics than poor performers. However, for digital tools to deliver valuable change, they need to be deployed by individuals who not only know how to use technology, but also have the lateral thinking to understand how to make the most of the data insights generated by new digital processes. How, then, can firms and corporates ensure they equip their teams with the mindsets and skills for the digital age?

A willingness to experiment and to step out of one’s comfort zone is crucial when it comes to effective digital transformation, since this relies on individuals being open to learning and understanding new ways of doing things. The evidence suggests that hyper-specialists, commonly found in the legal profession, are less suited to this challenge, whilst those with a more generalist training tend to be better able to adapt their critical thinking.

Digital transformation is more than just about learning a new skillset – it’s about re-thinking the very way in which we learn. Organisations should, therefore, seek out thinkers and learners who are able to apply the deep knowledge they have gained in other areas of expertise to the new opportunities presented by digital technology.

The good news is that digital-first skills and an open mindset can be learned. So, GCs and law firm management teams would be wise to review their current training programmes to ensure there is sufficient scope to upskill their teams in the right way. In addition to exposure to digital skills, training on commercial acumen, systems thinking, and complex problem assessment / solving, for example, can prove particularly valuable.

If law firms or corporates invest in building a digital-ready team that can harness the potential offered by digital transformation to create real value for their clients, they will be extremely well placed to steal a march on their competitors.

ETHICAL FEES CAN BRING FAMILY LAWYERS COMMERCIAL SUCCESS argues Steven Glasser

In the family law arena, there is really nothing more significant for a lawyer than ethics; the importance of ethics stretches far and wide, into every corner of practice. But, for me, it is the issue of fees that I particularly want to focus on in my dealings with clients. At Laurus we always prioritise the client experience and that nearly always means reaching a solution as quickly as possible, often using ADR. We have very few final hearings. Not only is this better emotionally for the client, it prevents cases dragging on and costs spiralling.

Steven Gasser is a co-founder and the head of the family team at Laurus, the London law firm

Our  priority is  solely  to drive towards the  right  outcome for each and every  client regardless of the facts and complexity of the case and to ensure that the client receives the best possible experience during what is often a difficult time.

I’ve come across solicitors in my work who, without a shadow of a doubt, string out cases by generating correspondence and ramping up the acrimony so they go on for longer and generate larger fees. This generally results in the parties becoming more polarised than they needed to be and, of course, unnecessarily inflated costs.  The Courts appear to have woken up to this and there is now a noticeable focus on fees from them. But while capped fees have been mooted for some time, in my opinion it’s unrealistic to expect this will ever happen – although I think the chance of capped hourly rates at some point in the future is more likely.

Being transparent, giving realistic estimates, keeping these updated and avoiding generating excessive fees is not just the right thing to do ethically, it also makes perfect sense commercially. We [at Laurus] don’t spend much on marketing because we don’t need to, all our work comes from reputation and word of mouth, referrals from clients who recommend us because of the positive experience they have had with us. It’s a virtuous circle as we aren’t under pressure to bring in fees to cover these outlays.

Ethics around fees is relevant to talent attraction and retention, particularly among the younger lawyers coming through who tend to be more purpose driven; if we want to bag the best talent for our firm, we must demonstrate the highest ethical standards in all that we do.

Ethics is also about how you manage your practice and for us, it doesn’t stop once a case is closed. We try to keep in touch and listen to what the clients are up to and how things are changing for them. I’d say that about 95% end up being in a good place. It’s incredibly satisfying for us to know we played a part in that.

EUROPEAN REGULATORS LAY OUT THEIR EXPECTATIONS ON INTERNATIONAL DATA TRANSFERS explains Eduardo Ustaran

After a long wait of over seven months, the European Data Protection Board (EDPB) published this week the final version of its Recommendations on measures that supplement transfer tools to ensure compliance with the EU level of protection of personal data in the context of international data transfers.  In other words, this is the regulators’ recipe for ensuring lawful transfers of personal data from the EU.  Although the revised guidance is by no means legally binding, it confirms the collective views of the EU data protection authorities in this area and many global companies are likely to regard it as an extension of the GDPR.

As expected, this version retains the approach of the original one by setting out the recommended six steps to ensure compliance with the Schrems II decision of the European Court of Justice, which was primarily concerned with avoiding disproportionate access to EU personal data by foreign governments. Two of those six steps are particularly important, namely the assessment of the law and practices in force of the third country, and the adoption of any necessary supplementary measures to bring the level of protection of the data transferred up to the EU standard of essential equivalence.

The good news for organisations attempting to assess the scope and effect of other countries’ laws is that they may take into account the practical experience of the importer in dealing with government access requests. This provides a welcome degree of realism to what would otherwise be a fairly theoretical legal analysis. However, the EDPB points out that this assessment needs to be done with due diligence and thoroughly documented, as the competent supervisory or judicial authorities may request it and hold the parties accountable on that basis.

The main emphasis of the document continues to be on the implementation of additional safeguards that may be required to protect the data beyond the standard contractual clauses approved by the European Commission.  These additional measures are explored in much detail by the EDPB, which splits them into technical measures and contractual measures. With regard to the technical measures, the EDPB’s position remains essentially unchanged and from their point of view, they must render the personal data completely inaccessible to be effective.

Given the EDPB’s stance on the use of technical measures, the contractual measures may in practice provide the best additional protection for the purposes of meeting the Schrems II requirements. All in all, the regulators place the onus firmly on those involved in exporting or importing EU personal data and it is clear that any future regulatory scrutiny in this area will be guided by the detailed approach set out in these recommendations.

Eduardo Ustaran is a partner at Hogan Lovells

LEGAL COMMENT OF THE WEEK

Yesterday the Ministry of Justice released its Quarterly Family Court Statistics: October-December 2020. Here’s the reaction:

“The quarterly Family Law Statistics for January-March 2021 reflects that the 30,420 divorce petitions filed are up 2% on the equivalent quarter in 2020 which makes interesting reading when one considers there were less marriages. The question has to be asked as to whether divorces are now on the increase because of the pandemic?  Is this the appropriate time for the family departments in England and Wales, whose turnover will no doubt increase because of the difficulties the pandemic has created for society, to volunteer to assist the Department of Justice deal with the likely overwhelming workload the MoJ will experience? This has been done successfully in other countries in the past on a no cost basis to the MoJ.  No doubt this will cause a stir amongst family practitioners who are already experiencing burgeoning caseloads.  Sadly domestic violence remedy order applications have increased by 12% compared to the same period last year.”

 Charmain Hast, Head of Family at Wedlake Bell

“Not surprisingly the latest MoJ statistics show yet another increase in the number of divorces in the period January to March 2021.  Lock down has put a huge strain on many couples for a number of reasons, not least of all too much time together, time to reflect on relationships, and life generally. Interestingly, mean average time from petition to decree nisi was 27 weeks, and decree absolute was 51 weeks – down 1 week and 2 weeks respectively when compared to the equivalent quarter in 2020. Whilst the median time to decree nisi and decree absolute was 17 and 31 weeks respectively. This highlights the strength of the court system becoming increasingly more efficient  as a direct result of the divorce process going on line.”

Neil Russell, Partner at Seddons,

“The Ministry of Justice have released the Family Court statistics for January to March 2021. The court system seems to be maintaining its recovery from the COVID-19 pandemic and the inevitable impact upon the judicial system. 

Since the last quarterly review there has been an increase in the number of cases commenced in the Family Courts with a rise in financial remedy applications (29%), domestic violence (15%), private law (5%) and matrimonial and adoption cases (1%).

There is improvement in the average time from a divorce petition to pronouncement of decree nisi by 1 week and from decree nisi to decree absolute of 2 weeks. The average time frame from a petition to decree nisi is 27 weeks and from petition to decree absolute is 51 weeks. The latter figure is extended by the fact that in many cases, parties have to finalise their financial agreement before applying for decree absolute.

However, the time frame from petition to decree nisi is still too long. The court is working on improving their IT systems and the online roll out is gradually eating away at the backlog. The introduction of no-fault divorce (now due April 2022) will improve the time frames for getting to the decree nisi stage (which will be called a conditional order), to 20 weeks from the date of the petition.

 Whilst the court struggles with backlogs and a rise in family law cases generally, couples can eliminate the need to suffer judicial delay by mediating their family law dispute or instructing collaborative solicitors. Ultimately, the court will still need to process the petition and the final agreement (the consent order), but the bulk of the work can be kept out of the courts. Indeed, collaborative agreements are usually fast tracked to a judge for approval.”

Susi Gillespie, Partner, Head of Family Law Department, Mediator and Collaborative Lawyer at Thomas Mansfield Solicitors:

APPOINTMENTS OF THE WEEK

11KBW has recruited Jamie Susskind as a new tenant. Susskind (call 2013) specialises in High Court commercial-employment cases and tribunal litigation. He also has a general commercial/arbitration practice, and a developing practice in information law.

Susskind has a particular interest in data governance, privacy law, and free speech and has written widely on these subjects. Previously he was with the chambers of Gavin Maxwell QC and he has held fellowships at Cambridge and Harvard Universities as well as at the Berggruen Institute. He is the author of Future Politics: Living Together in a World Transformed by Tech (It can also be said with some confidence that his dad knows a thing or two about digital transformation, comments The LegalDiarist).

Thomas Mansfield Solicitors has appointed Paula Kumar as a new new partner and Head of Dispute Resolution.  Specialising in complex commercial, employment and media disputes, Kumar was formerly the head of Dispute Resolution and Employment at Ignition Law, a firm focused on start-ups, scale-ups and entrepreneurs.

Established in 2004, Thomas Mansfield Solicitors has grown steadily and this latest expansion reflects increasing market demand for litigation and dispute resolution services. Kumar will work alongside Consultant, Paul Thomas, who recently secured one of the most significant judgments on costs in 20 years, in an ongoing private equity partnership dispute between Melford Capital Partners (Holdings) LLP and Others and Frederick John Wingfield Digby. 

Neill Thomas, Managing Partner and Co-Founder of Thomas Mansfield Solicitors comments, “Through the businesses our employment law team are working with we have found that there is a substantial demand for our advice on litigation and dispute resolution matters. With Paula’s help we plan to grow the team and develop the offering further.”

E-VENTS

Policy Exchange invites you to

Making a Success of Levelling up

with

Andy Haldane
Outgoing Chief Economist, Bank of England

Chaired by

David Goodhart
Policy Exchange

Time & Date

Monday 28th June 2021

13.00 – Webinar start
14.00 – Webinar close

Registration Register Here

https://us02web.zoom.us/webinar/register/WN_Y3JzGIOnSgmA_7fGfoi_OA

The conversation will be broadcast through Zoom. It will be live streamed on YouTube, Twitter and Facebook.