Edward Fennell’s LEGAL DIARY
Diary news, commentary, insights, appointments and arts from the legal world
June 17 2022
Editorial Contact: fennell.edward@yahoo.com
SHORT THOUGHT FOR THE WEEK: No Go FOR IPOs?
The decision by Mishcon to pull its IPO might be a blessing in disguise for the firm. From the information available it seems that a large part of the motivation to attract in new money was so that it could then make a quick exit via the backdoor into the top-of the range cars of the most affluent partners.
The historic genius of legal partnerships in the UK system is that this generation works not just for itself but to build up something for its successors – and, indeed, the partnership as a whole.
Previous experience has shown that where a coterie of elite partners sets up structures disproportionately in their own interests then things can start to go wrong – sometimes disastrously so. Maybe it is important to remember that law is still a profession not just a business.
The LegalDiarist
In this week’s edition
+ LEGAL DIARY OF THE WEEK
– Specialist, independent new ESG firm announced
– Oh, yea! at Cadwalader
– Conveying the Right Messages
– Queen Mary’s Legal Advice Centre Leads World
+ LEGAL COMMENT OF THE WEEK on Rwanda refugees, Assange’s extradition, ‘ableist’ slurs, rental reform and data security
+ APPOINTMENTS OF THE WEEK at Brown Rudnick, Kingsley Napley and Simkins
LEGAL DIARY OF THE WEEK
– Specialist, independent new ESG firm announced
Amidst all the controversy over the role of high profile lawyers as being ‘enablers’ (whether that be to oligarchs or refugee smugglers) it is stand-out significant that Suzanne Spears, the Co-Head of Global Business and Human Rights at Allen & Overy has announced that she has decided to leave the Magic Circle outfit to establish a new independent, specialist business and human rights law firm.
Environmental, social and governance (ESG) issues are increasingly important – as, for example, FitchRatings commented in a release yesterday. ‘Misinterpretation or misstatement of ESG data has led to punitive regulatory actions, with reports that the SEC is investigating Goldman Sachs’ asset management unit over its ESG mutual funds, the recent USD1.5 mil. SEC fine against Bank NY Mellon and the resignation of the head of German asset manager DWS Group amid police investigations into claims of greenwashing’.
So Spears intends her new firm to range across the spectrum of human rights, due diligence, impact assessments and investigatory issues. Clients will be advised on ways to prevent and eliminate human rights-related harms, and to advance human rights by adhering to internationally recognised standards. It will also get involved in international arbitration, transnational litigation and non-judicial processes such as complaints processes established by regional or international treaties, multi-stakeholder and industry association grievance processes and national Human Rights Institutions (NHRIs). So, quite an agenda.
“The surge of corporate interest in Environmental, Social and Governance factors, and a recent focus on the Social aspect in particular, makes it an exciting time to build a new style of specialist multidisciplinary firm,” Spears said, adding that she would make an announcement in the Autumn about her colleagues in the new venture.
Avoiding Conflicts
The background to Spears’ decision is the difficulty of offering advice in these areas from the platform of a large law firm where conflicts and high fees can create problems.
“Commercial conflicts are more pronounced at present when it comes to ESG matters, as firms, like other businesses, are undergoing a transition,” she says. “They generally accept that their advice should be aligned with ESG objectives and international standards, such as the UN Guiding Principles [but they] are still deciding exactly what “align” means, to them. ….[For example] does “align” mean turning away clients, raising concerns about certain industries, projects or jurisdictions at the risk of offending some clients, declining to defend certain conduct etc. when the clients’ conduct does not align with ESG objectives and standards?”
Big questions at a possible turning point in the UK’s position on human rights.
Oh, yea! at Cadwalader
It was one of those silly ‘subbing’ oversights that only a journalist – or a lawyer – would pick up. ‘CREFC Names Anna H. Glick for 2022 Woman of the Yea’(sic). Yes – or, as our ancestors would have said, ‘Yea’ – earlier this week in New York the Commercial Real Estate Finance Council (CREFC) announced at its annual June Conference that Cadwalader’s Anna Glick would be the recipient of its third annual Woman of the Year Award. Except that whoever runs the CREFC website had missed out the ‘r’.
For anyone whose big day has ever been messed up by a mis-spelling, however minor, (and it’s certainly happened to the LegalDiarist) it remains forever in the memory whether as a source of irritation or ironic hilarity. Journalists, of course, do it all the time (again including the LegalDiarist) but if you are the CREFC and this is your BIG award of the year and this is the HEADLINE to your announcement…..well.
More importantly though the award was for a strikingly effective lawyer. Glick has been a pioneer in the business of securitisation (not a ‘female pioneer’ but a pioneer of any gender) representing issuers, underwriters, institutional investors and servicers active in the primary and secondary capital markets. As a commentator observed, ‘Anna was a forward-thinking attorney in the area of commercial mortgage-backed securitizations ….. Over the years, she has represented issuers/underwriters in billions of dollars of securities offerings, many of which include novel structures and features.”
Mike Gambro, a long-time colleague, was warm in his praise. “We are so fortunate to have Anna as a wonderful colleague and friend.” Oh yea, to that.
Conveying the Right Messages
In what is now becoming a familiar pattern. The Council for Licensed Conveyancers has declared that the number of women and people of colour in senior roles within conveyancing is still ‘unsatisfactory’. This has not been for want of trying, it says. There have been a range of initiatives aimed at lowering barriers to entry and ensuring fair career progression across the entire legal profession. Despite this ‘change is very slow – particularly for those who are vulnerable or have protected characteristics’.
Consequently the CLC is now looking at its Equality Code in ‘a bid to ensure regulated practices and individuals are meeting expectations’. “It is important that the legal profession reflects – to the greatest extent possible – the diversity of the population it serves,” commented Sheila Kumar, chief executive of the CLC. “Although the CLC’s non-graduate profession is more closely reflective of society than some other branches of legal sector, the fact that women and people of colour do not progress to senior positions in the proportions they should indicates that more action is needed to make effective and sustainable changes.”
An absence of reliable data is perceived as being one of the barriers to real progress. Hence the CLC will be consulting on a new requirement being written into its Equality Code, compelling regulated practices to “cooperate with the CLC in the collection and analysis of data about their workforce and owners as may be required by the CLC from time to time.”
NOTE: Full details of the consultation are available here. Responses can be sent up until the closing date of 30th August either via email consultations@clc-uk.or or by post to: The Council for Licensed Conveyancers, WeWork, 131 Finsbury Pavement, London, EC2A 1NT
Queen Mary’s Legal Advice Centre Leads World
International acclaim has come to the Queen Mary’s Legal Advice Centre (QMLAC) having just been awarded the ‘hotly contested’ MacJannet Prize for Global Citizenship, a high profile civic engagement award.
QMLAC runs a free clinic on the university’s Mile End campus where members of the local East End community can receive advice in many areas of law. For the purpose of the MacJannet Prize it was up against more than 400 universities from across 82 countries on six continents, in a contest to to demonstrate its proficiency in developing student leaders who are’ actively engaged with society and promoting access to justice in the community’.
Moreover by winning the prize QMLAC now has the funding to employ a part-time PhD student to support client enquiries and reduce the time taken for assisting or signposting new cases. “This prestigious global award is wonderful recognition – of the commitment shown by our students and volunteers, of the trust and support of our partners and clients, and of Queen Mary’s dedication to civic engagement which drives our mission forwards,” said Frances Ridout who directs QMLAC.
Since 2006 QMLAC has received more than 18000 enquiries and advised more than 4000 clients. This academic year alone, 446 Queen Mary students worked with 220 lawyers to help 1604 people with legal advice or community projects to improve legal capability.
“This service opens up legal advice to people who otherwise would not have the means to obtain the advice they dearly need,” said one QMLAC client. “It’s the little things that can help someone when facing the lowest time of their life… just knowing there is help out there and they are not alone.”
LEGAL COMMENT OF THE WEEK
TOPIC: Acting for the UN High Commissioner for Refugees in the case concerning UK-Rwanda Migration Partnership
COMMENT BY: Jo Ludlam, Baker McKenzie, Disputes Partner and London head of Regulatory, Public & Media law team
“UNHCR plays such an important role and we are incredibly privileged to be able to use our skills and resources to support it pro bono on this case. We will continue to support UNHCR in the lead up to the substantive hearing, in light of the High Court’s decision that this case gives rise to serious triable issues.”
TOPIC: Assange’s US Extradition Approval
COMMENT BY: Thomas Garner, Extradition Partner, Fladgate, said:
“The decision to approve the decision is not surprising. The secretary of state’s powers to block an extradition are extremely limited. The question now is whether his lawyers are able to persuade the High Court to grant him permission to appeal. Having won his case at first instance on a single ground the USA appealed the case to the High Court. Assange’s lawyers will now seek permission to appeal the grounds on which he lost at first instance.”
TOPIC: Publication of the Renters Reform Bill
COMMENT BY: Andrew Whitehead, Stephensons, Senior Associate
“The introduction of the Renters Reform Bill will be broadly welcomed by many responsible landlords. These proposals offer a glimpse of what is to come and on the whole seem to offer a balanced set of changes that protect the interests of both the tenant and the landlord. As is often the case, the devil will be in the detail and the Government must work closely with private landlords to ensure that despite these reforms, the private rental market remains buoyant to avoid worsening the housing crisis.”
TOPIC: Latest guidance from Government on the Data Privacy Bill
COMMENT FROM: Pulina Whitaker, Morgan Lewis, Global co-head of privacy and cybersecurity
“The Government’s proposed Data Reform Bill and National Data Strategy is in keeping with its commitment to adhere to the current level of stringent privacy requirements for organisations with a view to promoting the UK as a global data marketplace. There is nothing terribly radical in the Government’s response and there does not appear to be any proposed dilution of privacy rights and obligations, meaning the UK is likely to retain adequacy, which will likely be a relief for many businesses. The proposed ICO reforms will ensure it remains a risk-based regulator and can continue to provide guidance and support to businesses. It will also be allowed to keep a portion of the fines it imposes (which is a significant change for the ICO). As anticipated, cookie issues will be easier for businesses and as such likely to be welcomed by consumers and businesses.”
TOPIC: The hard line taken by the Commission Nationale de l’Informatique et des Libertes(CNIL) on data exports.
COMMENT BY: Vin Bange, Head of UK Data Privacy, Taylor Wessing
“The CNIL has said that using Google Analytics will not comply with the GDPR aside from under two very limited situations. Explaining its decision, it commented that the likelihood of the data being accessed by third country law enforcement agencies should not be taken into account. The mere possibility that it can be accessed is enough. Analytics data has generally been regarded as ‘low risk’ so the CNIL’s hardline stance will come as a surprise to some. The full impact is likely to take time to play out.“
TOPIC: The removal of the ‘ableist’ slur by pop star Lizzo from her new song “Grrrls”
COMMENT BY: Gideon Benaim, Simkins, partner and leading reputation protection specialist
“Words in English have alternative meanings and even different usages in some countries, and often their usage is intended to provoke a reaction or even drum up publicity. In Lizzo’s case, she says that this was unintentional and that she never wanted to promote derogatory language. She reacted very quickly and changed the offensive lyric. As a result, she’s unlikely to be ‘cancelled’ and in fact, reputationally, she has come out of this episode well. Luckily, the song was only available digitally at the time, otherwise it might have been a much more expensive mistake if physical products needed to be recalled.
“However, it’s not the first time that lyrics have been changed, and it won’t be the last. For example, the Black Eyed Peas changed ‘Let’s Get Retarded’ to ‘Let’s Get it Started’ in 2003, before they released the song as a single, and countless songs each year have lyrics changed or edited out for radio and television broadcast.
“Whether or not you believe in absolute freedom for an artist to say whatever they want, regardless of how offensive some might find it, and whether or not lyrics fall on the right side of the law, which in Lizzo’s case they did, wrongly or rightly artists, like everyone else, are under more scrutiny these days. However, one can’t help but think that scrutiny is rather ad hoc and something of a lottery. If you want to be offended, there are lots of very offensive things out there if anyone took the briefest of time to look, but these do not get highlighted in the way Lizzo’s lyric did, and those artists remain adored and idolised, even championed for being ‘so outrageous’.
“Even the remaining lyrics in Lizzo’s new song will potentially cause offence to some. There are basically two parallel worlds, and sometimes free speech and social media-led calls for censorship inconsistently collide.”
LEGAL APPOINTMENTS OF THE WEEK
CAPTAIN SPARROW’S ATTORNEYS?
Vincent Guglielmotti has been elected as the Chief Executive Officer at Brown Rudnick. He takes over immediately and, at age 41, he will be the youngest partner ever to serve as CEO in the firm. He was previously managing director of the Brown Rudnick Corporate & Capital Markets Department.
“I am honored and humbled to be chosen for this role,” said Guglielmotti. “Brown Rudnick is my home and I’m proud of all the lawyers and staff here, and I am honored to lead the Firm in supporting our most important stakeholders – our clients.”
Guglielmotti succeeds William (Bill) Baldiga to whom he paid warm appreciation. “Bill is leaving big shoes to fill, but I look forward to working with all my colleagues to build upon Bill’s achievements,” he said. The respect is mutual. “ [Vincent] is a natural leader,” Baldiga commented. “I am thrilled that the future of the Firm is in such good hands.”
Brown Rudnick is celebrating its 75th anniversary next year. Among the most high profile of its recent successes was on behalf of Johnny Depp against Amber Heard – a case likely to go down in the history of showbiz as well as reputational law.
MEMERY’S LOSSES
Victoria Lowe has joined Kingsley Napley as a Partner in the firm’s Real Estate and Construction team. Previously with Memery Crystal, where she was a partner for more than five years, Lowe has significant experience in commercial property transactions including property development (for residential and commercial use), acquisitions and disposals of freehold and leasehold land, property investment/asset management and landlord and tenant matters. She specialises in particular in the acquisition of commercial sites for residential redevelopment and has worked on a number of major developments around London.
“I am delighted to welcome Victoria to the firm,” said Bethan Owen, Kingsley Napley’s Head of Real Estate. “We are busy and growing across both the commercial and residential side of our practice, and Victoria’s experience and specialisms will be a great fit for our clients.”
Lowe’s arrival brings the total number of partners at Kingsley Napley to 74 and in the Real Estate practice to nine.
David O’Dwyer is joining Simkins as a Partner and Head of Property. Formerly with Memery Crystal, O’Dwyer is a commercial real estate specialist with extensive experience advising funders, landlords, tenants, operators, developers, and investors on a wide range of activities including portfolio work and high value individual transactions.
On his appointment O’Dwyer said: “I am delighted to be joining Simkins. The Property team, and the firm as a whole, has real talent and ambition, and I am excited to play my part in Simkins’ growth plans.”
Simkins Managing Partner, Euan Lawson, added, “David brings a wealth of experience as a property specialist, and his expertise will be invaluable as we continue to grow and develop the department, while continuing to meet the needs of our clients.”