Edward Fennell’s LEGAL DIARY

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

December 9th 2022

Editorial contact: fennell.edward@yahoo.com

SHORT THOUGHT FOR THE WEEK: Not Such a Fine Approach

Aside from the Covid vaccination campaign and the furlough scheme (and bravo to those) there is little in terms of public administration undertaken by the British Government recently which has actually worked (aside from doing U–turns on previously flawed policies.).

But there was a slight glimmer of hope this week from the Information Commissioner’s Office.

A new blog by Stephen Eckersley, the ICO’s Director of Investigations, explains that it had started moving away from imposing fines on public sector organisations for failures in data protection. Hence what might have been a £749,856 fine for a coding error by the NHS Blood and Transplant Service was converted into a Reprimand and the same applied to what could have been a £10m fine for the Department of Education for failing to properly look after children’s data in one of its databases.

If executed these fines would have been very damaging to the public while, frankly, meaningless to the culprits – in short, all the worst features of a blame culture.

Common sense and good management practice dictate that there has to be a better way for incentivising high quality performance by our public services. Relying on a penal policy which bites the innocent victims is clearly not the right way to go. Maybe others could follow the ICO’s lead.

The LegalDiarist

In this week’s edition

+ LEGAL DIARY OF THE WEEK

– Spotlight on Social Mobility in the Law

– Serle Court Acts on Interns

– Working On Your ABS?

– A Better Future ahead – but not in the world as we know it

– Last Post for ‘False Accounts’

+ LEGAL COMMENT OF THE WEEK on the right to request working ‘part-time’ and ‘WFH’

+ CONTRIBUTED ARTICLES OF THE WEEK

– The Importance of Pre-Nuptial Agreements in High Net-Worth Marriages by Michael Gregory

– What steps are you taking to achieve growth for your firm by Craig Taylor

+ LEGAL APPOINTMENTS OF THE WEEK at Bird & Bird and HF

+ E-VENTS

LEGAL DIARY OF THE WEEK

Spotlight on Social Mobility in the Law

Amidst all the debate about levelling up the Social Mobility Commission (SMC) has announced (after a competitive application process) a new Employer Advisory Group. The aim is that they should share best practice and partner with the SMC to ‘develop resources that organisations need to support social mobility’.

Representing the legal sector on the Group will be Browne Jacobson’s People Director Declan Vaughan. “I’m excited to have been chosen to represent Browne Jacobson in the Social Mobility Commission’s new Employer Advisory Group,” says Vaughan. “Browne Jacobson is deeply committed to increasing social mobility, both internally and in the wider community, and we’re proud that our contribution has been recognised in this way.  As the UK’s leading employer for social mobility, I’m looking forward to sharing best practice, and supporting the Commission’s employer focused work.”

Browne Jacobson’s claim to be the Numero Uno social mobility employer is based on its position at the head of the just-published Social Mobility Foundation’s (SMF) Employer Index. This features 75 employers of which, this year, more than half are from the legal sector. Along with Browne Jacobson in the Top Ten are Herbert Smith Freehills, Baker McKenzie and Squire Patton Boggs. In the range 10-20 there are an impressive seven law firms – DLA Piper, Allen & Overy, BCLP, Linklaters, DWF, Lewis Silkin and CMS.

Although this is good news for the law just how far activity translates into outcomes only time will tell. Moreover as Alan Milburn, the Chair of the SMF points out in his Foreword to the Index, “[There is] some evidence that the momentum amongst employers to embrace the social mobility challenge is being lost. We have seen a notable drop in the quality and quantity of submissions to the Index.” So, clearly, there is no room for a let-up.

For more on the Employer Index go to https://www.index.socialmobility.org.uk/

Serle Court Acts on Interns

While it was encouraging that the legal profession featured powerfully in the SMF Index this primarily meant firms of solicitors. Barristers’ chambers hardly appeared at all. But that does not mean that nothing is happening. For example, Serle Court Chambers has just announced that it is participating in the 10,000 Black Interns scheme which is aimed at transforming the horizons of ‘young Black talent’ with paid internships across a number of sectors.

The scheme is almost brand new having run a pilot for just 100 Black students earlier this year in the finance sector. That proved a success and the scheme quickly moved on to targetting 10,000 Black interns in five years. With 2,500+ internships already offered to Black students and graduates, the scheme sems to be making good progress.

Serle Court will be joining the programme’s ‘Legal:The Bar’ strand which brings together a group of Chambers each of whom will host an intern for a week at a time. The aim is to give the participants a broad insight into the lives of barristers and help them to start developing skills which should be useful whether or not they decide to pursue a career at the Bar.

“We are delighted to be participating in this long-overdue push for real and lasting change in the racial composition of the Bar,” said Kathryn Purkis, Chambers Director at Serle Court. “Everyone, irrespective of race, colour or creed, should be able to make the bright future they wish for into a reality.”

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Working On Your ABS?

Google the term ‘ABS’ and what comes up is yards of references to ‘Anti-lock braking systems’. So more popular then than Alternative Business Structures in the legal sense. Maybe it is for that reason that while the Legal Services Act of 2007 – which created ABS and permitted non-lawyers to own and manage law firms – had some impact (there are now around 1,500 licensed ABSs) the scale has not been as great as, maybe, hoped for. “For me it was about making the opportunity available,” said legal sector guru, Professor Stephen Mayson. “It’s then whether or not people take it. Liberalisation was permissive rather than prescriptive.”

Published to mark the 15^th anniversary of the Act a just-released report  Liberalisation: Reflections on the future of legal service delivery, comments that thanks to the 2007 Act lawyers have ‘unleashed their entrepreneurial spirit to reimagine how legal businesses are structured and deliver their services’. Nonetheless there are still big advances required, it seems, if in-house legal teams are to reap the full benefits envisaged by the new regulatory regime. “There remains a considerable way to go before the whole profession recognises that inherent in providing legal services is delivering a service,” say the report’s authors. “There are various reasons for this but the difficulty of changing the law’s culture is probably the biggest.”

It is the larger end of the corporate market, the report explains, that has faced most barriers to embracing fully new ways of engaging legal services. Basically, the established habit of large corporate clients going to large corporate law firms for their advice is hard to break.

But that might change. “As soon as something disruptive and good comes along at scale, general counsel may desert their long-term providers very quickly and understandably so,” Christina Blacklaws, a former Law Society President. “Law firms need to be having grown-up conversations with their clients on how to price and what to price for, and how they are going to be incentivised themselves to do things differently.”

Reading this report might be a good place to start. https://obelisksupport.com/liberalisation-reflections-on-the-future-of-legal-service-delivery-report/?submissionGuid=ad217050-9e10-42f0-b3cc-d67886a4e482

A Better Future Ahead – but not in the world as we know it

Just think, four weeks from now we will already be six days into the New Year – and how exciting will that be?

Well, probably ‘not very’ is the answer especially if we are still cold and strike-bound. So how much nicer everything could be if we might just slip off into the metaverse. And for lawyers – and trademark lawyers in particular – it looks as if a whole new frontier is opening out as clients seek to secure their IP rights in that other world.

That’s why there is some interesting crystal ball-gazing by Louise Popple, Tim Pinto and Kachenka Pribanova of Taylor Wessingon The Future of Trade Marks in the firm’s annualPREDICTIONS report published this week. Pointing out that brand owners have already brought actions to try to prevent the use of their marks on virtual goods/services such as digital content authenticated by NFTs in the USA and in Italy the authors highlight that there is likely to be a rise in infringement actions in the UK in due course.

“There will be many infringement issues to work out, including whether the mere reproduction of a trade mark in the metaverse will constitute an infringement,” they say. Moreover tracing the person behind an infringement in a virtual environment may not be easy. “Some platforms require no ID verification for e-commerce or avatars, resulting in the operation of anonymous accounts. This is something trade mark owners have already had to tackle with the development of the internet.”

The answer might lie, apparently, in conducting a private investigation or making a test purchase to try to identify the infringer. Yes the metaverse is clearly going to be every trademark lawyer’s virtual oyster in the year ahead.

For more see https://www.taylorwessing.com/en/interface/2022/predictions-2023

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Last Post

As a follow-up to our article last week highlighting that the drama FALSE ACCOUNTS written by Lance S A Nielsen  about the Post Office ‘Horizon’ scandal needs theatrical ‘Angels’ to give lift off for a national tour, the ‘Gofundme’ address is now live at:https://www.gofundme.com/f/false-accounts-the-post-office-scandal-play

LEGAL COMMENT OF THE WEEK

TOPIC: The right to request ‘part-time’ and ‘WFH’ from the first day in a new job

COMMENT BY: Susan Thompson, Partner at specialist disputes firm Simkins

“New employees often need to spend time in the office to meet colleagues, get training and be set up with equipment. A day one right to flexible working could be very disruptive and may not be practical for many roles. There is quite a lot of flexibility for employers to reject flexible working requests, and I suspect that employers will find it easy to justify a lack of flexibility during an employee’s probationary period. Accordingly, I don’t think this change will make a dramatic difference.

“Employees may also be reluctant to make too many demands during their probationary periods anyway. While it would be automatically unfair to dismiss an employee for requesting flexible working, employees will still fear repercussions from challenging management decisions so early in their careers. 

“Something that may have more of an effect is a new duty to discuss alternatives to the flexible working requests. This is also being considered by the Government. Forcing employers to consider compromise (as opposed to accepting or rejecting requests) could have a real impact, but only time will tell how effective this measure is (and how strongly it will be enforced).”

CONTRIBUTED ARTICLES OF THE WEEK

The Importance of Pre-Nuptial Agreements in High Net-Worth Marriages

by Michael Gregory

Pre-nuptial agreements have once again been making the news headlines with the billionaire Michael Fuchs and his wife staging a bitter fight in the High Court in London with regards to a pre-nup they signed back in 2012.

For many with significant assets to protect, entering into a pre-nup before a marriage should be seen as as essential as booking the wedding venue and ordering the cake. As we reported in the Legal Diary in June, as long as the pre-nup is entered into properly before the wedding and certain provisions are adhered to beforehand, then the court should attach significant weight to it if it is ever contested at a later date.

However, for many with wealth to protect who are considering pre-nuptial agreements their major concerns ahead of any marriage are usually that they are wanting to protect the wealth that they already have or that their extended families have.

It is really important though to think ahead to a number of scenarios that may take place in the future and after a wedding has taken place itself to ensure that these eventualities are captured and protected too under the terms of any pre-nup. These scenarios are usually on the radars of those that have significant wealth to protect in the first place but for others it may not necessarily be the case.

My advice is that you should enter into a pre-nup if you have wealth to protect and if you are considering or expecting the following to happen after your wedding has taken place:

• The restructuring of a business.
• An impending inheritance.
• A business owner about to sell their business.
• A beneficiary of a substantial trust.

Michael Gregory is a Partner at Lowry Legal with nearly 20 years’ experience advising high-net-worth and high-profile clients on a diverse range of family law matters. He advises on all family law issues, with a particular emphasis upon financially complex high-net-worth cases.

What steps are you taking to achieve growth for your firm?

How technology strategies can attract and win new business.

by Craig Taylor of LEAP

There is no one, single thing you can do to develop your law firm and be successful. But if you maximise your visibility, deliver distinctively and plan for success, you can revolutionise your practice. By engaging with technology to automate and streamline processes, create efficiencies and productivity, you will free up time to focus on these business-critical activities to ensure future success.

So, every law firm needs a website – it’s your shop window. It enables clients to easily see who you are, what services you provide and at what cost. Clients should be able to engage with you, download documents and make payments. The closer your website is to a ‘virtual office reception’, the better. Your website never closes and by integrating it with innovative technology systems such as your case management or CRM system, you can create valuable automation and efficiency gains.

Improved search engine optimisation (SEO) helps your site rank higher on the likes of Google and Bing, and comes as a result of changes to your website’s content, structure, key words and phrases. Allocating a budget for pay per click (PPC) adverts on search engines such as Google Ads will position you in front of more prospective clients by paying when someone clicks on the advert to visit your website.

A legal CRM ensures you have a single source of truth and a full audit trail of all your leads, referrals and enquiries. Once a lead becomes a client, there are ways of on-boarding electronically, in minutes rather than days. Why send your instructions in the post when you have electronic signatures and identity verification tools at your fingertips?

Social media can be a natural extension of your brand online; Facebook, for example, allows you to not only promote your business and services but to also facilitate reviews, allowing clients the opportunity to publicly comment on the service they receive.

Developing your business presence online shouldn’t replace your engagement in ‘the real world’. Conferences, seminars and events are great ways to make new contacts and to learn about your profession. Networking events are fundamental to any business, especially if you rely on local clientele, traditional referrals and word of mouth.

LEAP Legal Software has been helping small to mid-sized law firms to become more efficient and profitable globally for more than 25 years.

LEGAL APPOINTMENTS OF THE WEEK

BIRD & BIRD  

Michael Finn is to join Bird & Bird as partner and IP litigation specialist in the firm’s Intellectual Property practice in Ireland. He will start on 3 January 2023.

Finn joins from Pinsent Masons where he was a partner in the IP and Commercial Litigation team. He has acted on some of the leading disputes in Ireland and has extensive experience advising on Irish Commercial Court litigation, and multijurisdictional mandates. He advises a range of international clients in the life sciences, technology and communication sectors. He also has significant experience in regulatory disputes and investigations, product liability and judicial review.

Morag Macdonald, co-head of the international Intellectual Property practice at Bird & Bird adds: “Michael’s outstanding IP litigation experience and strong reputation in both the domestic and international legal market will broaden to Ireland our already extensive capability for high end IP litigation across Europe. Michael has been the go-to Irish litigator for Bird & Bird partners for many years now, so I’m thrilled he is finally going to be one of us.”

HF

Alison Rocca is to join HF (formerly Horwich Farrelly) as a Dispute Resolution Partner in the firm’s Manchester office.  Previously at Glaisyers Solicitors Rocca has sixteen years of experience. Her reputation as a dispute resolution specialist is based on working with a number of high-profile, high-value cases ranging across commercial disputes such as shareholder fallouts, property disputes and probate and inheritance claims.

“The HF Commercial team in Manchester is growing at a rapid pace,” said Rocca, “and I very much look forward to being part of a focused and dedicated team who put excellent client service at the heart of everything they do.”

Ronan McCann, CEO and Managing Partner at HF said, “Our growth plans continue as we scale our contentious and non-contentious commercial legal services offering through organic growth, M&A and lateral hires, both in Manchester and in our recently established and growing York office. We now have over 30 contentious lawyers acting for Euro 50 and FTSE 250 clients, as well as owner-managed businesses and SMEs.”

E-VENTS

Despite the cold – and in a firm expectation (sorry) of England’s defeat by France tomorrow evening – the Legal Diary intends to appear on the next two Fridays running up to a Christmas and New Year break.

So please continue sending your legal diary stories plus comments and insights to

fennell.edward@yahoo.com