Edward Fennell’s LEGAL DIARY

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

November 25th 2022

Editorial contact: fennell.edward@yahoo.com

SHORT THOUGHT FOR THE WEEK: Time to Magic Something Up?

No doubt partners and (even more so) their staff across the City have been mulling the latest league table of ‘Best Law Firms to Work For’ published earlier his week by Law.com International. This rolled together data from four principal measures – revenue per lawyer, pro bono work, partnership gender balance and lawyer racial diversity – to come up with a Top Twenty. Ropes & Gray – which has been cited recently in the Legal Diary for its achievements – came out on top with Latham & Watkins in second place.

What was striking though, as one’s eye ran down the listings column for the Top 20, was that while two of the traditional ‘Magic Circle’ firms – Freshfields Bruckhaus Deringer and Allen & Overy – had done well (coming 4th and 5th respectively) the other three Magicians – Clifford Chance, Linklaters and Slaughter & May – were nowhere to be seen. Indeed it had to be conceded that traditional British firms had been largely outmuscled by American outfits on this survey of the London legal scene.

Now, that might simply reflect the realities of the world economic order. But if the Magic Circle is to retain its gloss in these more complicated times then they need to up their game considerably on some of the wider criteria of success. It will need more than a magic act of illusion.

The LegalDiarist

In this week’s edition

+ LEGAL DIARY OF THE WEEK

– Human Dignity Trust Scores a Winner

– Calling Out Your Clients?

– Latham & Watkins Get into Gear

– How ‘Fertility Friendly’ Are You?

+ LEGAL COMMENT OF THE WEEK on the Bill of Rights Bill, the Retained EU Law (Revocation and Reform) Bill and the Infected Blood Inquiry

+ CONTRIBUTED ARTICLE OF THE WEEK

Equal Pay Day: breaking down the gender pay gap taboo by Tanja Albers

+ APPOINTMENTS OF THE WEEK at Allen & Overy and Level

LEGAL DIARY OF THE WEEK

Human Dignity Trust Scores a Winner

At a time when protests in support of LGBTQ+ rights are capturing headlines in the context of the World Cup it seemed appropriate that the award for the most impressive ‘Diversity and Inclusion Initiative’ at this week’s British Legal Awards 2022 was won by the Human Dignity Trust.

Over the past ten years The Trust has established an international reputation for using the law to defend the human rights of LGBT people globally by supporting litigation and law reform in 25 countries through technical legal assistance.

“This win is a testament to the expertise and dedication of our staff team combined with the outstanding assistance of our pro bono legal teams, working with our incredible partners around the world,” said Téa Braun, Chief Executive of the Human Dignity Trust. Diversity and inclusion is at the heart of what we do as we work to reduce the number of countries across the globe that criminalise LGBT people.”

As the Trust comments, it works with local partners around the world to defend human rights in countries where private, consensual, same-sex sexual activity is criminalised. “We provide free technical assistance to LGBT activists, civil society organisations, lawyers and governments wishing to challenge and reform laws that persecute people on the basis of their sexual orientation and/or gender identity.”

For more information see Human Dignity Trust’s interactive map to see which countries across the world continue to criminalise LGBT people

Calling Out Your Clients?

It’s a classic professional dilemma for lawyers; when you suspect for sure that your clients have been up to no good what should you do about it?

According to researchers from the University of Exeter the current guidance for solicitors on reporting serious misconduct is legally deficient and lacks clarity. They have now written to the Solicitors Regulation Authority (SRA) calling for ‘improved guidance on when and how lawyers need to internally and externally report or disclose wrongdoing by their clients’.

Following in-depth discussions with lawyers in private practice and in-house the researchers concluded that the boundaries and issues around ethical issues are not clearly understood. ‘This means issues are not always effectively dealt with, as well as damage to the public interest in the administration of justice, and acute, sometimes irreparable, harm to the mental health and careers of the lawyers concerned,’ they comment.  But maybe that is not too surprising given that, as the researchers claim, the SRA guidance ‘sometimes appears to get the law wrong; it lacks appropriate clarity; and it often nudges the reader towards non-disclosure rather than stating the position more neutrally’. Moreover, among a number of deficiencies in the SRA guidance pointed out by the Exeter researchers ‘There is no mention of whistleblower protections.’

Jenifer Swallow, an award-winning General Counsel and the founder of LawtechUK who took part in the research commented, “Client confidentiality is, rightly, a core principle of legal practice.  However, misconceptions around it abound and it can be misused.  Clarity is needed.  This is something on which the SRA and other legal services regulators can lead, in the interests of supporting the efficacy, tenor and pace at which issues and wrongdoing inside organisations are are alerted and addressed.”

We wait with interest to hear how the SRA responds.

Latham & Watkins Get into Gear

‘On yer Bike!’ boast the Latham & Watkins Pedallers

To complement its second place ranking in the Best Law Firms to Work for League Table (see ‘Short Thought’ above) Latham & Watkins claimed pole position in this year’s Tour de Law, the annual law sector fund-raiser for Breast Cancer Now research.

Taking ‘back to the roads’ on 12 and 13 October – after two years of Covid restrictions – fifteen teams of lawyers managed to clock up 11,000 kilometres cycled and a staggering £110,000 of charitable donations.

The Latham & Watkins cyclists pedalled over 900 kilometres during the two days and generated £19,000 en route. And as a reward for their efforts they received the much-coveted Tour de Law trophy and a framed INEOS Grenadiers jersey, signed by the 2019 Tour de France team.  

Since its inception in 2012, Tour de Law has raised over £1 million for world-class breast cancer research and life-changing support.  So even if you are feeling saddle-sore you can still register your interest in next year’s event (11 and 12 October 2023) at tourdelaw@breastcancernow.org. To find out more about this year’s race click  here.

How ‘Fertility Friendly’ Are You?

Burgess Mee, the boutique family and private client law firm, has been announced as the first business in the UK to be declared a Fertility Friendly employer by  Fertility Matters at Work  (FMAW).

Set up as a community interest company FMAW aims to ‘educate and inspire businesses with an awareness of how fertility issues affect both their employees and their organisation’. Through its membership programme employers can demonstrate their commitment to becoming a Fertility Friendly workplace.

Burgess Mee had already recognised that fertility issues and fertility treatments, as well as baby loss, can be mentally, emotionally and physically draining. Natalie Sutherland, a partner specialising in fertility and surrogacy law, had been appointed as its Fertility Officer to support employees experiencing fertility struggles. And so the firm was keen to undertake FMAW’s training and accreditation process ‘to ensure that current and future employees feel empowered’ to discuss their family-building plans.

“Burgess Mee is delighted to have gained accreditation as the UK’s first Fertility Friendly employer,” says Sutherland. “Fertility Matters At Work’s training course is both thought-provoking and informative, containing essential insights into what it means to face fertility issues while trying to hold down a demanding job. This is massively important to engender trust with employees. I have no doubt that gaining Fertility Friendly status will help organisations to attract and retain staff and ultimately boost the bottom line.”

For more information on becoming a Fertility Friendly workplace, please visit: https://fertilitymattersatwork.com/become-fertility-friendly/

LEGAL COMMENT OF THE WEEK

TOPIC: The Bill of Rights Bill and the Retained EU Law (Revocation and Reform) Bill

COMMENT BY: Edward Sparrow, Chair of the City of London Law Society (CLLS)

Both [these bills] create a risk of huge legal uncertainty and present a serious threat to the UK’s international reputation as a jurisdiction of choice for business:“English law is hailed worldwide for its predictability and adaptability. It is chosen by businesses across the world to govern their transactions. We are concerned at the negative impact these Bills are likely to have on that choice and, in consequence, on the UK economy.“The CLLS hopes that the Government will listen to the many warnings they have received about the potential serious consequences of these Bills and reconsider their approach.”

TOPIC: Yesterday’s Parliamentary debate about Infected Blood Inquiry and compensation following the study submitted to the Treasury by Sir Robert Francis KC earlier this year

COMMENT BY:  Des Collins, Senior Partner of Collins Solicitors, adviser to over 1500 victims of the infected blood scandal 

“This is an important initiative by the All-Party Parliamentary Group on Haemophilia and Contaminated Blood. Any attempt to keep the spotlight on the issue of compensation for those affected by the infected blood scandal is to be welcomed.  

Whilst the Government recently made interim payments to those infected who are still alive and some bereaved partners registered on a UK support scheme, we are concerned other victims of the scandal remain very much in limbo. The suffering of orphans and parents of deceased victims and those who have lost cherished family members also deserves to be recognised. The £100k payments are not proper and meaningful compensation for the few, let alone the many. 

We hope tomorrow’s debate reminds MPs that the infected blood community still awaits formal feedback on whether the Government supports and will enact Sir Robert Francis’ recommended compensation framework.  And if they are committed to it, surely work needs to begin now on how compensation will be administered.

The Infected Blood Inquiry is nearing its conclusion and Sir Brian Langstaff’s final report is expected next year. It will hardly hold any surprises. Therefore we need MPs to ensure the necessary preparations are in place to respond to that as quickly as possible. The issue of proper compensation for the infected blood community cannot be kicked into the long grass any longer.  They have waited long enough already. “

CONTRIBUTED ARTICLE OF THE WEEK

Equal Pay Day: breaking down the gender pay gap taboo

by Tanja Albers

Tanja Albers

This year, the Fawcett Society calculated that Equal Pay Day landed on 20th November. This means that the average woman in the UK is now effectively working for free. Although shocking, this is the sad reality of the gender pay gap that has been so deeply entrenched in the UK’s corporate world through years of taboo. The legal industry is certainly no exception.

In fact, our recent In-House Compensation Survey revealed a gap of over £60,000 between the base rate salaries of male and female General Counsels in the UK. Meanwhile, recent statistics from the Law Society cites a pay gap of 32% persists in private practice. This gap has been allowed to propagate for far too long due to the deafening silence that continues to surround the gender pay gap in the industry.

Many firms are patting themselves on the back for achieving greater numbers of female employees as part of diversity pushes. On the surface level, having more women around the table is great news. However, there remains a glass ceiling with the top roles still dominated by men and women not being equally renumerated. This kind of box-ticking agenda is not to be celebrated and only serves to widen the gap. Have we reached a point where women with the same experience and credentials as male counterparts are viewed as the more affordable option when hiring? Let’s hope not.

The UK is internationally behind the curve and could learn a thing or two from across the Atlantic. Despite a generally more transparent attitude towards compensation, companies in the US are not allowed to ask candidates about their current pay packets. As a result, negotiations do not start from a standard 10-15% uplift, but focus on the value of the role, rather than the candidate filling it. In this way, lowball offers are discouraged and there is less room for bias.

Small attitude changes in the way we discuss compensation could make a huge difference to the female lawyers who have been silenced thus far and are now essentially working for free. Albeit a war of attrition, breaking down taboo is the first step to encouraging women to speak up for the pay they deserve and beginning to close the gender pay gap.

Tanja Albers is Partner, In-House Counsel Group, Major, Lindsey & Africa

APPOINTMENTS OF THE WEEK

LEVEL

Jodie Seddon (above), regarded as one of the leading authorities on equestrian law, has joined Level. She joins from Gunnnercooke. where she was instrumental in establishing and leading the firm’s equestrian law arm. She is a Band 2 ranked lawyer in the 2023 edition of Chambers & Partners where she is described as being “sought out by clients because of her first-hand knowledge of the industry.” Her clients include professional riders and trainers, bloodstock agents, horse owners, landowners, farmers, sponsors, event organisers, brand managers and PR organisations, livery yards, riding schools, commercial businesses, national and international federations and governing bodies.

Amy Sullivan, Level’s Head of Growth, commented, “We are delighted to welcome Jodie to Level. She is one of the industry’s most knowledgeable legal experts in her field. Jodie will be the first equestrian specialist at Level, adding another string to the Sport team’s bow.”

 Seddons’ early career was as a corporate and commercial lawyer and she has broad experience of corporate finance and commercial contracts practice which she gained in senior roles both in house and in private practice.

Joining Level allows me to continue to combine my equestrian and legal interests in a firm designed for lawyers working in the sporting world,” said Seddons. “I am looking forward to the next stage of growth for my equine law practice, using my personal knowledge of the equine world, and understanding of the context of equine-related issues, along with my extensive first-hand knowledge as a rider, yard, owner, breeder, and employer.”

ALLEN & OVERY

Marwa Elborai (above) has been appointed as a high yield partner, based in London, in Allen & Overy’s leveraged finance practice. Previously with Shearman & Sterling, she has been a U.S. qualified partner since 2016, working in both its New York and London offices.

Elborai has developed a broad practice with a particular focus on high yield debt offerings, U.S. federal securities laws, leveraged finance, project bond offerings, general debt capital markets transactions and debt restructurings. She has also delivered specialist covenant advice for her clients on loan transactions that have adopted high yield covenant technology.

“High yield expertise is a critical part of the offering in delivering a market leading leveraged finance franchise for our clients, “ said Denise Gibson, co-head of global leveraged finance at A&O. “Given the current economic cycle, we also expect Marwa’s extensive restructuring experience will prove very useful to the clients we service in this space.”

A&O operates a leading top-tier global leveraged finance and high yield practice with more than 250 lawyers across the U.S., EMEA and Asia Pacific. This includes 22 partners and over 60 associates in London.

E-VENTS

DECEMBER AT GRESHAM COLLEGE

This month our highlights include Law Professor Leslie Thomas KC asking, Do We Need Judges?

DO WE NEED JUDGES?

Leslie Thomas KC
Thursday, 1 Dec 2022, 6pm
Barnard’s Inn Hall / Online

Register Now

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Meanwhile please continue to send your diary stories, legal insights and comment to

fennell.edward@yahoo.com

As for the rest of today… our commiserations to Wales (especially for falling foul of the laws of football) but hope for something better from the Three Lions this evening.