Edward Fennell’s Legal Diary – Edition 52
Thursday 1st April 2021 Edition 52 Maundy Thursday
Diary news, commentary, insights, appointments and
e-vents from the legal world
SHORT THOUGHT FOR THE EASTER WEEKEND
There’s a long Bank Holiday weekend ahead and, with lockdown almost unlocked, you can look forward to a relaxed few days with the ones you love.
But who would love a lawyer? Plenty of people according to Matthew Rhodes of ‘Roll on Friday’ (RoF) whose new dating website Lawyr (‘For lawyers and the people who want to date them’ with logo above) has attracted plenty of publicity and promoted a lively debate on the pros and cons of getting into a romantic relationship with a lawyer. No less a figure than Matthew Parris in The Times relayed on an observation that being a lawyer ‘sucks all joy and potential for happiness out of your soul’ and that however sexually alluring a lawyer’s bank balance may be (presumably of any sex or orientation) it might not sustain a marriage. “I’ve worked for a firm where all the partners were divorced, had suffered heart attacks, or both” was one comment on the RoF site.
But beware the nay-sayers. “These drivel scare stories have been squeezed out for years – often by jealous penniless journalists who weren’t good enough for the bar or law firms – they end up worth nothing in their 40s and doctor articles to justify their life,” asserted one commentator. How true.
The LegalDiarist
In this week’s edition
+ LEGAL DIARY OF THE WEEK
– Cyber sword needed for defence
– Clifford Chance Backs Paralegal Skills Initiative
– You bet!
– Protesting the Rule of Law?
– Bowled over by India
+ CONTRIBUTED ARTICLES OF THE WEEK
– IMPROVING LAWYERS’ MENTAL HEALTH by Ann Offomata, Managing Director at Major, Lindsey & Africa
– SCRUTINY THROUGH THE COURT by Kari Gerstheimer, Chief Executive of Access Social Care
+ COMMENTS OF THE WEEK
– The ASDA ‘Equal Pay’ case
+ APPOINTMENTS OF THE WEEK
Clyde & Co and Thomson Snell & Passmore
+ E-VENTS
The Brick Court centenary podcast series continues
LEGAL DIARY OF THE WEEK
Cyber sword needed for defence
First it was working from home, then it was from anywhere. But wherever you want to work you are potentially at risk from breaches to your cyber security.
That was the clear message of a recent survey of 750 UK law firms, and 500 commercial and M&A solicitors since the start of the pandemic undertaken by Doherty Associates for its report ‘Who Moved My Moat?
The figures make grim reading with a quarter of solicitors admitting that they have been the victim of a data breach or caused one themselves since working remotely – suggesting that employees are not reporting all of the mistakes they make to the firm. About one fifth experienced a phishing attack or similar cyber attack and 42% admitted to emailing confidential client information or unencrypted attachments.
What became clear is that as many as four in ten of UK law probably lack adequate cyber threat visibility and detection systems to protect employees working remotely. And in any case firms are largely unaware of the volume of cyber attacks and data breaches impacting their remote workforce.
Yet despite one third of firms feeling that their IT environment is more vulnerable to a cyber or data breach with employees working outside the office the majority of firms still expect the hybrid office to stay in place after the covid crisis is over.
“Operating a remote workforce in the cloud has many benefits, including greater flexibility, diversity and lower overheads, but it’s critical to ensure that teams continue to operate safely, securely and are fully compliant with FCA and GDPR regulations wherever they are working from,” says Terry Doherty. .
According to Doherty’s survey, employees’ bad cyber habits include working on a blend of work and personal devices when working from home. Around half admit to saving confidential corporate information to these devices. But only 15% of firms have put a block on personal devices for work use.
Meanwhile 32% of employees surveyed by Doherty Associates said they’ve had no cyber awareness training since the first lockdown and over two thirds say they have ignored virus security scan requests or computer update alerts to safeguard their company’s systems and sensitive data.
“Your company is only as safe as your weakest link and by empowering employees with the knowledge to identify threats in real-time, they can become your greatest security asset and help prevent cyber attacks,” warned Doherty.
Clifford Chance Backs Paralegal Skills Initiative
At this time of renewed and heated debate about race Clifford Chance had nominated the New York-base Center for Institutional and Social Change as the winner of its Racial Justice Award for 2021. The organisation will now receive a US$70,000 donation and 500 hours of pro bono support over an 18 month period for the organisation’s Paralegal Pathways Initiative.
“Last year we committed to work with our people and partners to drive concrete actions to help address the racial injustices highlighted by George Floyd’s death and the international reaction to it,” said Jeroen Ouwehand, Senior Partner at Clifford Chance, “Today I am proud to announce our partnership with the Paralegal Pathways Initiative, through our Racial Justice Award. Racial justice will not simply happen by accident or through kind words. Racial justice is a permanent campaign that requires a permanent commitment to take effective steps by those able to make a difference.”
The significant feature of the Paralegal Pathways Initiative is that it focuses on helping those returning home from American prisons to find sustainable careers by capitalising on the legal research and litigation skills which inmates have often gained while incarcerated.
“We are delighted to be working with a law firm like Clifford Chance, bringing its skills, resources and networks to bear alongside our team and our Fellows,“ said Susan Sturm, the Center for Institutional Social Change’s director added. “Every step on the journey to addressing racial injustices requires hard work, grounded in the leadership of people most directly impacted by racism and mass incarceration. The more allies who work together in genuine partnership and long-term collaboration the better.”
Clifford Chance’s Racial Justice Award is open to not-for-profit organisations globally that help individuals, groups or communities use the law to achieve significant inclusion, racial justice and social impact.
For more information on Clifford Chance’s stance on inclusion and diversity visit here and for more information on Access to Justice initiatives visit here.
You Bet!
It’s going to be a big weekend for horse racing and betting and no doubt there will be one or two lawyers out there contributing to next year’s pay-out for Denise Coates of Bet365 (reckoned to have banked a £421 million salary in a 12-month period). But while Bet365 is above board that’s not necessarily true of all the outfits trumpeting deliciously winning come-ons. “I have seen online betting sites with amazing odds. How can I check the credibility of the site and make sure it’s not a scam?” asks, rhetorically, DAS Law solicitor Nicole Rogers.
The answer, of course, says Rogers is:“Check that the organisation that you plan to gamble with is licensed by the UK’s Gambling Commission. Every online gambling business that is licensed is required to display a notice saying that they are licensed by the Gambling Commission with a link to the Commission’s website. On the Commission’s website there is a license register where you can see what activities a company is able to offer. If a gambling business doesn’t have a license, it is acting illegally and you would be wise to avoid placing any bets with them.”
Sounds like the best advice of the weekend (even more so than going on Lawyr).
Protesting the Rule of Law?
It’s impossible to resist the grim nostalgia for the late 1970s and early 1980s when watching TV news right now, full as it is of heaving protestors and police losing it in the ensuing ruck. Also going back in time maybe is the Police, Crime, Sentencing and Courts Bill which The Bingham Centre for the Rule of Law has announced it will be scrutinising in details when its provisions are debated in Parliament.
“Currently, the scope for protest is further restricted by Coronavirus lockdown regulations, although the full extent of these restrictions has not always been clear,” says the Centre which has just published a report, Protests During Lockdown (England): A Rule of Law Analysis, considering UK court decisions on protest during lockdown. “The report ends by considering how far the right to protest will be protected by the new lockdown regulations [which have just come into force].”
For more go to https://binghamcentre.biicl.org/
Bowled over by India
As our relations cool with China maybe it is time to focus more attention on India (despite the problems that UK law firms have had in setting up there). With that in mind Axiom Stone Solicitors sponsored the Great Big Indian Money Show which was held online from March 26-28, organised by iGlobal, the internet business directory.
Axiom Stone Managing Partner Pragnesh Modhwadia suggested ways of “Unleashing the Entrepreneur in you”, whilst Chairman Jonathan Metliss drew on his experience for “becoming the Ultimate Networker – How to make great business contacts”. Other contributions came from Idnan Liaqat, Head of Commercial and Residential property, on the value of property auctions, Vassos Vassou, Head of Private Client, on wills and inheritance tax planning and Olivia Cooper, Head of Private Wealth and family Office, on funding a business.
England might not be able to beat India at cricket but it still has something to say about the laws of the game.
CONTRIBUTED ARTICLES OF THE WEEK
LAWYERS’ MENTAL HEALTH
Could flexible working help solve the legal industry’s mental health crisis? suggests Ann Offomata, Managing Director at Major, Lindsey & Africa
The fact that junior lawyers suffer from anxiety and depression due to long hours and hefty workloads is unfortunately nothing new. What is new, however, is that these lawyers have become more vocal in their discontent.
Covid-19 has intensified the mental health crisis facing associates. Remote working, seclusion and financial insecurity due to a pandemic-induced recession are contributing to poor mental health and affecting concentration, workflow and productivity. At the same time, the pandemic has also shone a spotlight on these problems.
Prolonged isolation has prompted junior lawyers to speak out: all-nighters are easier to handle with a sense of camaraderie in the office, but access to colleagues as a source of support and validation has been more limited.
As UK restrictions ease, law firms need to better understand the contributing factors to stress and poor mental health. As well as addressing billing pressures and client demands, a broader view is needed. Many junior lawyers suffer from imposter syndrome and feel harshly judged or penalised for mistakes – could they be being intimidated by their superiors? Might some feel isolated due to their ethnicity or socioeconomic background? Are teams adequately staffed? Are mentoring schemes fit for purpose?
To prevent burnout and toxic environments, firms must eliminate the stigma still attached to mental illness so that lawyers can disclose concerns without fear of being labelled as weak. Some firms are trying to be more empathetic, offering on-site psychologists, training staff to detect problems and introducing mental health support as well as other wellness initiatives. But there is a long way to go.
Paradoxically, although remote working may have accentuated their mental health problems, associates are increasingly demanding flexible working, so that they can find a better work-life balance.
Firms who listen and promote self-care will have their pick of the best talent, and a more productive, efficient and profitable team. In contrast, those who drag their feet or rely purely on token gestures, will come across as old-fashioned, valuing control and presenteeism over good mental health.
Associates have proved their worth over a challenging year. Law firms ignore their achievements, and their mental health needs, at their peril.
SCRUTINY THROUGH THE COURT
The Government’s plan to overhaul powers of judicial review is dangerous says Kari Gerstheimer, Chief Executive of Access Social Care
On the 18th March, the Government announced plans for an overhaul of the powers of judicial review to “protect” judges from being drawn into politics. This is dangerous. Judicial review is a vital mechanism in which a judge reviews the lawfulness of a decision made by a public body, protecting us from abuses of power and helping ensure good governance.
Boris Johnson’s attempt to strip the courts of the power to challenge unlawful Executive decisions, preventing us from holding public bodies to account, could lead to thousands of older and disabled people being denied the social care they are legally entitled to.
The Prime Minister is ignoring his commissioned independent review – which determined that the courts would respect the institutional boundaries of judicial power – claiming instead a need to redress the imbalance of powers in favour of the Government.
If you need social care, you may already be painfully aware that the balance of powers is decisively out of whack. Since 2010, the 92% drop in the number of community care legal aid cases means local authorities can effectively act unlawfully with impunity.
Even the Government acknowledges that their proposals to introduce prospective only remedies (which would apply only to future decisions) “could lead to an immediate unjust outcomes for many”. What this means is that unlawful assessments and unsafe care plans could go unchecked. The proposals to suspend quashing orders risks delaying remedial action for individuals seeking redress. With strong financial incentives to delay moving a person into more expensive provision the potential risk for people languishing in an inappropriate care homes for months is quite real.
For too many, the right to social care might as well not exist. Scrutiny through the courts matters. The Government’s potential changes mean the weight on the scales could be immovably stacked against you.
Kari Gerstheimer is a qualified solicitor who has worked in the charitable sector since 2006 and set up a beneficiary facing legal department at Sense, before moving to Mencap with her legal team in 2017. She incubated the Legal Network within Mencap before setting up Access Social Care as an independent charity in 2020.
COMMENTS OF THE WEEK
THE ASDA EQUAL PAY CASE
The Supreme Court ruling, where more than 44,000 Asda workers have won the latest stage of their equal pay claim with bosses, attracted a considerable amount of comment including from:
Andrew Nugent Smith, Managing Director of class action law firm Keller Lenkner UK, which acts for thousands of Tesco employees in separate but similar claims against Tesco:
“This is a significant victory for shop floor workers in the long-running battle between supermarkets and their employees. Today’s ruling sets a strong precedent for other claims against large supermarkets. “It is good to see that shop floor workers can now be validly compared to distribution workers, and that today’s Supreme Court ruling has been made in favour of employees. “The reality is that shop floor workers are predominantly female and that a higher proportion of men work in distribution centres, so today’s ruling is also a victory for equality.”
Suresh Patel, Mishcon de Reya Employment lawyer:
“Today’s much anticipated Supreme Court decision in Asda Stores v. Brierley confirms that for the purposes of their equal pay claims, retail staff working in Asda supermarkets can compare themselves to distribution staff working in Asda warehouses.
However, this decision is only the conclusion of a preliminary step in the litigation. The case now goes back to the employment tribunal, where the claimants must show that they perform work of equal value to the distribution employees. Asda can also raise the defence that any difference in pay is due to a non-discriminatory material factor.”
Philip Richardson, partner and head of employment law at Stephensons:
“The ruling by the Supreme Court is a landmark moment for thousands of employees and will have profound consequences for many other companies with similar employment practices and pay structures. The cumulative effect of these claims could see other supermarkets and retailers face eye-watering figures in terms of compensation.
“The focus will now shift towards a possible further legal challenge to establish whether specific store and distribution jobs were of equal value and that the employees’ gender was a factor in the rates of pay being lower than their male counterparts.”
APPOINTMENTS OF THE WEEK
Rosie Ngw has joined Clyde & Co as Partner to its Global Insurance Group in Hong Kong. She was previously with HFW, where she advised policyholders, insurers and reinsurers, and intermediaries on all aspects of insurance and reinsurance dispute resolution. She also provides insurance regulatory advice and advises on policy wordings and product development.
Rosie has a proven track record advising on complex insurance issues involving Hong Kong and is a former director of the Hong Kong Insurance Law Association. Simon McConnell, Managing Partner of Clyde & Co Hong Kong, comments: “Rosie is well-regarded in the market as one of the leading insurance and reinsurance lawyers in Hong Kong, so we are delighted to have her on board. Her practice complements the work of our existing group, and adds new dimensions, specifically in relation to product liability.”
Tom Hall has been appointed as a Partner by Thomson Snell & Passmore to its Court of Protection department, one of only two firms to be ranked in the top tier for Court of Protection work UK-wide in both Chambers and the Legal 500. He joins from Hyphen Law (formerly part of Thrings LLP), where he acted as the relationship holder for a busy caseload of deputyship and personal injury trust clients and their wider networks. He was responsible for the day to day management of high value and often complex deputyship and personal injury trust matters supporting severely brain injured clients.
Brian Bacon, Head of Court of Protection at Thomson Snell & Passmore, adds: “By tapping into Tom’s considerable expertise, we will be able to further broaden and strengthen the already excellent service and support we offer to our clients and their families.”
E-VENTS (Legal Webinars, blogs and more)
BRICK COURT SHARES ITS EXPERTISE ON ITS CENTENARY
In the second episode of an ongoing series of podcasts David Anderson QC and Maya Lester QC share views and experiences on “Stepping outside the law”:
https://www.brickcourt.co.uk/centenary/podcasts#episode2
Why and how do some lawyers step outside the law? How does legal life prepare one for public life? What happens when law and politics meet, and when might each need to give way? Where and how can one have the most impact – in the courtroom or outside it? What do lawyers bring to the House of Lords?
And why are foreign spooks jealous of the British (is it really James Bond)?
Join David and Maya as they discuss these, and a host of other, questions.
The LEGAL DIARY offers you a very Happy Easter. We are taking an Easter Break ourselves but aim to be back in our usual Friday slot on Friday 16 April.
But meanwhile please keep sending your news, views, comments and insights to
fennell.edward@yahoo.com
And please pass on this edition to friends and colleagues . Many thanks for reading!