Edward Fennell’s LEGAL DIARY

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

April 19 2024

Editorial contact: fennell.edward@yahoo.com

Rent this cup for a tenner a sip

I apologise for writing this little short thought. If the team here at the Legal Diary were really on the ball we would already have installed an ’AI assistant’ to do the job for us and we could spend our Friday mornings sharing £265-a-shot coffees in Mayfair. And as for you, dear reader, you could have an AI colleague actually reading our stories for you while you joined us (and maybe offered to pay for the coffee).

As three of our Legal Diary stories (below) indicate, AI is moving so fast into the legal world it is very hard to keep up let alone predict where it will all be in, say, five years time. According to legal IT guru Richard Susskind, AI could easily be formulating our legislation for us by that time. As for lawyers themselves, maybe they would be better off re-training as barristas – carefully crafting £265-a-shot coffees.

The Legal Diarist

In this edition

AI Assistance from Thomson Reuters

Sizing Up Synthetic Data

Everyone Gains?

Mind OUT! People About

Ex-CHELSEA FOOTBALL STAR HIT BY SHOCK DNA RESULTS: HOW WOULD THIS BE JUDGED BY THE UK FAMILY COURT? by Lisa Payne

WITH THIS FAT FINGER I THEE DIVORCE by Paul Linsel

WHAT WILL AN AI LAWYER LOOK LIKE? by Jerry Temko

GENERAL COUNSEL: HOW CAN THEY COPE WITH GEOPOLITICAL UNCERTAINTY? by Matthew Kay

on changes at the SFO, stealing Sainsbury’s bags for life, deepfake images, Sudan’s civil war and the right to worship in school

at Morgan Lewis and Hodge Jones & Allen

AI Assistance from Thomson Reuters

With growing momentum the AI revolution is coursing through the legal sector. This week’s great leap forward is that Thomson Reuters (the content and technology company) aims to ‘provide GenAI assistant for every professional it serves.’

As from this week Thomson Reuters is adding new GenAI skills to its CoCounsel’s capabilities. As the company describes it, ‘CoCounsel is an AI assistant that acts like a team member – handling complex tasks with natural language understanding.’ It will also be connecting CoCounsel to Microsoft 365 applications in order to accelerate research, drafting and review. 

In short the thrust of the story is that Thomson Reuters is integrating all its various offers into a single co-ordinated system. Hence in due course,

CoCounsel will link Thomson Reuters products across its entire portfolio, meaning customers can bring together multiple skills and workflows from different products into one place ‘to enhance user experience and value’. As the sales pitch goes, “By augmenting professional work with GenAI skills, CoCounsel delivers accelerated and streamlined workflows, enables professionals to produce higher-quality work more quickly, all while keeping customer data secure “ (To see it in practice watch here.)  

According to David Wong, Thomson Reuters Chief Product Officer, “Our unique combination of resources means we can deliver on our vision of providing professionals a new, human-centric point of access to our suite of Thomson Reuters products. As our products continue to expand and improve, the customer experience will remain centered in our GenAI assistant as CoCounsel learns new skills and capabilities – unlocking productivity and becoming the way professionals work.”

Sounds like another era-changing moment. 

Everyone Gains?

Continuing (briefly) with the Thomson Reuters theme, the company is working with OpenAI whose COO Brad Lightcap, observes that, “AI automates routine tasks and makes it possible to quickly analyze huge amounts of data – but even more importantly, it helps people come up with new ways to solve complex problems.” 

Now the most demanding problem in the legal world is formulating the laws themselves (or at least laws which make sense) so it very striking that Richard Susskind, the president of the Society for Computers and Law, wrote for The Times recently about his experience in using – as an experiment ChatGPT 3.5 to generate various statutes relating to tax and divorce law.

At this point – or at least a year ago – you might expect the results would have proved to be laughably inadequate, contradictory or inconsequential. But not so now. The UK’s legal IT guru gave a thumbs-up to what the bot delivered – almost. “The drafting by the system was impressive, but not error-free. However, given the present pace of advance, I predict that in less than five years AI systems will be capable of drafting high-quality first drafts of complex bills and regulations.”

So parliamentary drafters out of a job? Possibly. But the vision for the future goes further than that. Susskind also raised the prospect of legal software being implanted into machinery – such as motor vehicles – in order that they would be incapable of breaking the law – for example, by restricting the speed at which a car could be driven on a road depending on the speed restrictions.

Would this be a blessing – or a curse? The liberationists would howl against the restriction on personal autonomy. So too would the local authorities who currently do very nicely, thank you, out of speeding fines. The best test in most of these dilemmas is to ask yourself, what would Kim Jong Un do? And then reflect on the answer.

Sizing Up Synthetic Data

With the widespread adoption of AI there might be problems as it crashes up against legal norms devised in a pre-AI age.

One of those signalled up by the University of Exeter – ever a lively innovator in legal thinking – lies in the area of the processing of personal data. The particular problem that the university’s Professor Beduschi has in mind right now is ‘Synthetic data’, that is the data – generated through machine learning algorithms from original real-world data. This is gaining prominence, apparently, because it may provide privacy-preserving alternatives to traditional data sources. “It can be particularly useful in situations where the actual data is too sensitive to share, too scarce, or of too low quality,” says Beduschi.

As things stand, datasets which are fully synthetic are, in principle, exempt from GDPR rules, except when there is a possibility of re-identification. Unfortunately there now seems to be a grey area in the law as to the level at which a re-identification risk would be high enough to trigger the application of those rules.

“That creates legal uncertainty and practical difficulties for the processing of such datasets, “ says Professor Beduschi. “Clear guidelines for all types of synthetic data should be established. They should prioritise transparency, accountability and fairness. Having such guidelines is especially important as generative AI and advanced language models such as DALL-E 3 and GPT-4 – which can both be trained on and generate synthetic data – may facilitate the dissemination of misleading information and have detrimental effects on society.”

Sounds like we need ChatAI to sort this one out.

Mind OUT! People About

Returning to the old-fashioned world of human beings and how they sort out disputes the team behind the Mindful Business Charter are organising a session on ‘The Changing Face of Litigation and Dispute Resolution’ on the evening of Tuesday 7th May at Osborne Clarke’s London offices (and online).

According to the blurb, the purpose of the event is to ‘showcase and bring together various important initiatives that are seeking to rehumanise the way litigation and dispute resolution more generally is conducted’.

Frankly after all this AI talk that sounds quite attractive. In March 2023 MBC published its Guidance for Litigation professionals, to help address some of the unnecessarily stress-inducing behaviour that goes on in the context of disputes work.. “Over the past year we have been busy socialising it and spreading the word,” says the MBC team We have also listened to feedback. As a result, we have updated the Guidance. We are keen to build on the momentum generated.”

Also to be featured at the MBC event will be the work undertaken by a group of family law practitioners, led by Payne Hicks Beach, who have been working on their own guidance and supporting materials to better protect the wellbeing of both clients and practitioners. Copies of their materials can be found here.

Finally included is the Language Matters initiative which has been created by Sir Andrew McFarlane, the President of the Family Division of the High Court. This involves a number of family law practitioners and seeks to addressing the unhelpful impact of language in family proceedings. Their initial report is here.

Register for in person and online attendance to the event here.

Ex-CHELSEA FOOTBALL STAR HIT BY SHOCK DNA RESULTS: HOW WOULD THIS BE JUDGED BY THE UK FAMILY COURT?

By Lisa Payne

After a shock discovery that the children he raised for 16 years aren’t his, Geremi, the ex-Chelsea player has recently filed for divorce in Cameroon. As expected, the delicate and unique situation has posed a lot of questions. Many may wonder – how would this play out in the UK Family Courts and what are Geremi’s rights?

Since the introduction of ‘No-Fault Divorce’ in England and Wales, in April 2022, couples don’t have to communicate the reason for the relationship breakdown to the Courts. This means that, however devastating the news has been for Geremi, it would have very little bearing on the divorce and resolution of the finances thereafter. However, it will have a bearing on the future care of the children.

Understandably, Geremi may want to pursue joint care for the children he raised. In the UK, Child Arrangement Orders can usually only be made regarding a child under 16 years of age. In short, this Order regulates where the child is to live, and who they spend time with. As the twins are 16 years old, it’s extremely unlikely the Family Courts would make an Order. However, voluntary mediation would be an option if both parties were seeking to make an agreement on care of the children.

Parental Responsibility is a key point here – the Family Courts once concluded that a non-biological father named on a child’s birth certificate does not automatically lose the rights, duties, powers, responsibilities and authority in relation to the child. However, this is still not guaranteed.

Putting this aside for a moment though, assuming the children have always considered Geremi as their ‘father’ and have a strong emotional bond. The Family Court would be unlikely to not grant him an order of sorts to enable contact, based on this factor alone. The children’s wishes and feelings will be rightly considered by the Court.

I cannot envisage that the children in question here would not want to continue their relationship with the man they have always known as their father. The Courts in the UK would be very sympathetic to these circumstances, and would ensure the welfare of the children are supported by the authorities, who would help manage their new family dynamics. However, it will be up to Geremi’s wishes, and the Courts in Cameroon as to whether a long and complex legal battle lies ahead.

Lisa Payne is a Chartered Legal Executive in the Family team at Wilsons Solicitors. 

WITH THIS FAT FINGER I THEE DIVORCE by Paul Linsel

Some people marry in error, now it can happen to divorce too

Solicitors everywhere will have winced at the High Court’s refusal to set aside a final divorce order granted when solicitors mistakenly applied online for the wrong couple.

The firm in question, using HMCTS’ online divorce portal, had accidentally processed the file for the wrong couple. The judge overseeing the case argued ‘strong public policy interest in respecting the certainty and finality of a final divorce order’ when maintaining the ruling.

Again, many solicitors would have deemed this unduly harsh. If this had been a financial order or a directions order, it appears likely the order would have been set aside or amended with the slip rule invoked. Why not apply this same logic here?

What does the ruling mean? For both couples affected, the impact is -media spotlight aside – likely just an inconvenient delay. For the client who was unwittingly divorced, there is the potential for tax implications and a change in the risk in the event of death before financial matters are fully resolved. One could assume that given the extent of divorce procedures, their financial arrangement wouldn’t be far behind. In my whole career I’ve experienced one client dying in the throes of divorce so, while possible, this could be considered unusual.

Arguably, the impact is in fact greatest for the legal profession. Not least because this has attracted a lot of attention, arguably further eroding confidence in having solicitors. A precedent has also now been set. Where does this leave any comeback in the future where mistakes are made? This is essentially a human error, probably made by a junior team member. As solicitors, we strive not to make mistakes, but for now -at least – we are humans and things slip. Compassion and common sense hopefully prevail in rectifying these.

I’m concerned with the cultural impact on our profession. Again, the whole profession – and beyond – would have felt for the individual in question. At a time when we’re looking to keep family lawyers in the profession, we need to take stock of how we look after our talent pipeline. I firmly believe junior team members need autonomy and accountability to learn and grow; at the same time, we need the checks in place to protect them. And minimise the kind of pressure events like this could put them under.

We need to slow down. To not rush our people. Make sure they’re engaged and connected to the work enough to make sure oversights like this simply don’t happen.

At the same time, this event demands how we collaborate more with the judiciary – and vice versa. We’re on the same team here, wanting the right outcomes for the families we support. I have a big question mark over whether this ruling could, in fact, be called justice. For anyone.

Paul Linsel is Head of Family Law, Boyes Turner

WHAT WILL AN AI LAWYER LOOK LIKE? by Jerry Temko

AI is the acronym on everyone’s lips, with the technology becoming ubiquitous across the world of business. However, with the EU recently passing the AI Act, and with UK regulators due to submit their proposed strategies for governing the technology at the end of April, it is likely that AI legislation will become equally omnipresent in boardrooms across the world.

Businesses will soon be in need of AI legal experts, and herein lies what could be one of the biggest challenges with the technology: AI legal experts don’t exist yet.

Both the technology and the rules around it are so new and still evolving, so the profile of an AI lawyer has not had time be fully refined. Moreover, AI is unique in that the technology is being developed not for a specific use, but businesses are buying AI solutions and finding a use case for them. From sector to sector, business to business, and even team to team, the rules around the use of AI will look slightly different.

However, businesses can’t afford to wait and see when it comes to AI law. In many ways, the scenario playing out mirrors the introduction of the GDPR. Many businesses failed to prepare properly, and ended up with relatively junior in-house lawyers overseeing this new and business-vital legal area; a solution that quickly proved itself totally unworkable.

So how can businesses stay ahead of the AI curve? Poaching lawyers from the tech sector may seem a sensible starting point, but AI governance and regulation will extend far beyond the remit of transactional tech lawyers. Instead, businesses should be looking for academic and professional profiles that better match the specific AI legal expertise they will need. For example, an ideal candidate for becoming a fully-fledged AI lawyer may well be someone with an academic background in computer science who then converted to law. Depending on how a business plans to use AI, a lawyer with IP, litigation, and data privacy experience will also likely prove highly valuable.

In the current landscape, searching for a fully-fledged AI specialist lawyer that meets the exact needs of any given business will be, at best, searching for a needle in a haystack; at worst, a wild goose chase for an imaginary goose. To best prepare for the AI regulations that are now beginning to fall into place, businesses must ask ‘what AI lawyer do I need?’, and then look for a profile that is best positioned to become that lawyer.

Jerry Temko is Managing Director, In-House Counsel Practice, Major, Lindsey & Africa

GENERAL COUNSEL: HOW CAN THEY COPE WITH GEOPOLITICAL UNCERTAINTY? by Matthew Kay

Recent geopolitical events have been posing unique challenges for General Counsel.

A combination of climate change, health pandemics, political instability, conflicts and terrorist action, as well as an uncertain economic environment are some of the phenomena affecting international businesses, and cross-border supply chains. This is leading to an increased regulatory environment, where businesses are increasingly leaning on their in-house legal teams to avoid the risks, maintain stability, whilst also maximising the opportunities to remain profitable.

But the in-house legal team’s ability to deal with these issues are increasingly strained. Tight budgets from the business can impede efforts to drum up more resources, expertise and human power to cope. Dealing with the implications of and uncertainty caused by geopolitics, and strategising on how the business can move forward, has to be factored into an already heavy workload for the in-house legal team. The events coexist and influence: providing legal advice to the business, drafting contracts and agreements, reviewing documents, and meetings with internal and external stakeholders.

General Counsel are now expected by their businesses to be building effective risk management plans that can be implemented in response to these international incidents and their immediate aftermath, which enable the business to survive, and grow. The fallout could be trade and travel restrictions, financial sanctions, as well as rising inflation. These plans will need to be effective to weather the unpredictability of some scenarios, and the fast-moving regulatory frameworks that spring up in response.

Inevitably in-house legal teams are turning to their private practice to support them. But when budgets are tight and geopolitical situations are growing and their international impact becoming more acute, a permanent resource can be costly. That’s why we’ve seen an uptick in General Counsel opting for more flexible and specialised contract lawyers. They can parachute in and provide extra support to mitigate financial risks and adhere to the fast-moving regulation that comes with it.

The businesses that are surviving and thriving are the ones becoming more adaptive to threats posed by power shifts, crises and conflicts in the international environment. General Counsel are playing a key role in this by trying to anticipate, manage and be strategic about these geopolitical events. They will increasingly look to their external counsel to support them with these efforts.

Matthew Kay is Partner and Managing Director of Pinsent Masons Vario

TOPIC: The SFO’s intention to incentivise witness cooperation

COMMENT BY: Lucy Blake, Partner, Jenner & Block

“Hot on the heels of the launch of US DOJ’s cooperating witness incentivisation programme, yesterday’s publication of the SFO Strategy 2024-2029 made clear its commitment to “explore incentivisation options for whistleblowers, working with partners in the UK and abroad”.

“SFO Director, Nick Ephgrave QPM, has previously expressed his desire to make greater use of cooperating witnesses and whistleblowers. The Serious Organised Crime and Police Act 2005 does provide scope for relief through grants of immunity and the conclusion of restricted use undertakings – the British analogue of non-prosecution agreements. Whilst these measures are currently not widely used by UK law enforcement, the SFO’s recent announcement may signal greater alignment with its key partners.”

COMMENT BY: Kathleen Harris | People | Arnold & Porter (arnoldporter.com)

“It is wonderful to see that the SFO has launched a new strategy document. On close examination it repeats many of the strategic and operational goals that were promised 36 years ago and some are reflective of what many Police Forces have said in relation to combating all types of crime. I hope the Justice outcomes that will be centre of their measures of success, are achieved in a fair way, that the office secures the funding it needs and that they engage constructively with their global counterparts to achieve fair outcomes for all those affected by fraud.”

TOPIC: The sacking of an employee by Sainsbury’s for taking ‘bags for life’ without paying for them and the subsequent endorsement of the process by an Employment Tribunal

COMMENT BY: Kate Palmer, Employment Services Director at Peninsula

“This case is a useful reminder that theft is theft. Even when the monetary value of the item taken is low, it could still be an act of misconduct.

“However, an employer still needs to ensure that a reasonable and fair process is conducted to avoid an employee succeeding in an unfair dismissal claim because of a procedural failing.

“A full and thorough investigation is a key first step to establish all the facts and gather all the evidence. Then, if there is a case to answer, a fair disciplinary process should be followed.

“In this case there is no evidence that suggests the business did not perform the necessary procedures to carry out a fair dismissal. Therefore, the employment tribunal have ruled that the retailer was justified in their dismissal.”


TOPIC: The outlawing of the creation of deepfake sexually explicit images, regardless of whether they are shared thereby adding to the changes to the Sexual Offences Act  introduced in the Online Safety Act.

COMMENT BY: Mark Jones, Defence and Investigations Partner at Payne Hicks Beach,

“The UK government is the first to consider making the creation of a deepfake an offence. This would be a welcome and necessary development to protect victims. Whilst the Online Safety Act went someway to solve the problem of sharing and posting sexually explicit deepfakes, the only real solution is targeting the creators. It remains to be seen whether an overstretched police force has sufficient resources to investigate and bring perpetrators before the courts.”


TOPIC: The imposition of sanctions on three businesses with links to the different factions in Sudan’s civil war. 

COMMENT BY: Robert Dalling, partner at Jenner & Block

“As with the latest asset freezes targeted at specific individuals and companies related to China, the latest sanctions announced on three businesses related to the Sudan war are likely to be more bark than bite. The impact is limited, mainly serving political motives, with only a handful of targets affected by frozen assets, temporarily halting their financial activities in the UK.

“While the popularity of sanctions as a diplomatic tool persists, their impact – particularly with regard to enforcement – remains debatable. Their political symbolism often outweighs practical impact, especially for targets with no or minimal ties to the UK.”

TOPIC: The Michaela Community School row over the right of pupils to worship

COMMENT BY: Andrew Copson, Chief Executive, Humanists UK

In the absence of national guidance on religious practices in schools and of a serious national discussion about existing laws, cases like this will continue to be brought. Schools shouldn’t be left alone to deal with this. Today’s High Court judgment requires serious thinking from the government about how to protect the child’s freedom of religion or belief while also making sure our education system is fair and inclusive to all.

We believe a first step should be to resolve the wider issue of mandatory collective worship in schools and replace it with an inclusive form of assembly that makes all pupils feel welcomed, while making reasonable accommodations for those who want to privately pray or worship where it doesn’t infringe the rights and freedoms of others. Without such holistic attention, resentment will continue to build within our school system.’”

MORGAN LEWIS

Daja Apetz-Dreier (left) has joinedMorgan Lewis as a litigation partner resident in Munich. Formerly the managing partner of Reed Smith’s Munich office, the trilingual Apetz-Dreier was a member of the firm’s environmental, social, and governance (ESG) practice and for more than ten years she represented global and German domestic clients in cross-border, complex disputes. It is planned that at Morgan Lewis she will continue her broad commercial litigation, financial services disputes, and international arbitration practice.

“Daja has represented clients across numerous industries in complex cross-border disputes and has a keen understanding of impactful litigation strategy,” said J. Gordon Cooney, Jr., leader of the firm’s global litigation practice. “Her M&A litigation experience and contentious ESG-related know-how in particular will be a valuable service to our clients in Germany and across our global platform.”

Dr. Florian Harder, managing partner of the firm’s Munich office, added that, “Expanding our global disputes practices to Munich with Daja’s broad contentious background will position us to guide an array of companies, including those headquartered in or those who are dealing with counterparties in Europe.”


HODGE JONES & ALLEN

Katy O’Mara (left) is joining Hodge Jones & Allen as an Associate in the firm’s crime and extradition team. Formerly with ITN (the crime/ human rights firm not to be confused with the media company) O’Mara has extensive experience in extradition proceedings and has achieved many notable successes in preventing extradition to European countries, the USA, and the Middle East. She has recently enjoyed success at the Supreme Court in the case of Merticariu v Romania.

O’Mara is a member of DELF and recently spoke at the seminar on Technical Arguments and Tactical Considerations. Her approach to criminal cases is to prioritise the needs and interests of clients. She has defended all types of fraud in cases prosecuted by NCA, SFO, HMRC, DEFRA and BIS. She has experience in money laundering, restraint orders, search warrants, confiscation, and forfeiture cases. She also defends murder, serious violence, firearms, and drug cases.

“I am looking forward to working with the dedicated team at HJA and bringing justice to our clients,” said O’Mara. “The firm achieves some noteworthy work for its clients, and I am excited to be part of it.”