Edward Fennell’s Legal Diary – Edition 80

November 5, 2021

Friday 5 November 2021 – Guy Fawkes Issue

Diary news, commentary, insights, appointments and

e-vents from the legal world

SHORT THOUGHT FOR THE WEEK

Lots of fizz and bang – But what happens next? Call in the law.

COP26: LOTS OF FIREWORKS BUT WHAT LASTS FOR ‘SUSTAINABLE DEVELOPMENT GOALS’?

The declaration to assembled bankers, lawyers and corporate apparatchiks by COP26 Supremo Alok Sharma that “You are all ‘Swampys now” threw a banger into the conference and caused quite a stir – not least within the family of the tree-climbing environmental protester himself who denounced the whole shebang as a prime example of green-washing.

Blind prejudice or plain realism?

Only time will tell but the sincerity with which a succession of speakers addressed the hybrid event ‘Role of Law in Climate Action’ organised earlier this week by Advocates for International Development (A4ID) – in partnership with CMS and Bloomberg – suggested that members of the ‘business elite’ are now rolling their sleeves up and prepared to get on with the real work of reducing pollution.

For a start Stephen Millar, Managing Partner of CMS, announced right at the start that he, for one, hated tokenism. “Tokenism sucks,” he rasped.

So that means it is now down to practicalities. And to coincide with COP26 A4ID launched its new publication SDG13 Legal Guide to Climate Action as a practical guide to what lawyers should now be doing. As Yasmin Batliwala, the Chief Executive of A4ID, said, “The guide is a unique resource providing a fundamental analysis of the role that law can play in the achievement of the SDGs.”

CMS’s Olivia Jamison agreed. “Raising awareness of the SDGs is enormously important,” she said. “As lawyers we’re in an amazing position to contribute.”

Let’s hope that after the COP26 fireworks the law perseveres to get the SDG job done.

The LegalDiarist

For more go to: https://www.a4id.org/sdg/climate-action/

In this week’s edition

Short thought of the Week:

+ THE LEGAL DIARY

– And the winner is – the Bar’s Pro Bono Awards!

– Let’s Pal Up Over Pro Bono

– Homeward Bound for Farrer & Co.

– Kennedys Offers Extra Day for Mental Health

– The Language of Law

+ LEGAL COMMENTARY OF THE WEEK

– And Finally – COP26 again

THE RIGHTS AND WRONGS OF DISCIPLINARY PROCESSES by Rebecca Thornley-Gibson

+ LEGAL ANALYSIS OF THE WEEK

THE REVIEW OF THE LASTING POWER OF ATTORNEY SYSTEM: Who is it supposed to support? by Abigail Howson

+ LEADING LAW FIRMS Retaining top talentby Iain Blatherwick

APPOINTMENTS OF THE WEEK at Wedlake Bell and Peters & Peters

+ LEGAL DIARY OF THE WEEK

And the winner is – the Bar’s Pro Bono Awards

Advocate, the Bar’s national charity, marked its 25^th anniversary generously this week with the announcement of its awards for members of the Bar who have done exceptional pro bono work over the past year. There had been 46 nominations across nine categories, including young and junior barristers, QCs, Chambers, clerks and a brand-new category – the John Collins Pro Bono Excellence Award – so competition was tight.

Among the winners was Brick Court’s Sarah Abram who picked up Junior Pro Bono Barrister of the Year for being the only barrister willing to travel to Luxembourg in the pandemic to represent an environmental NGO at a hearing, ‘The outcome of which had a profound effect on environmental campaigners’ ability to challenge highly polluting infrastructure projects’. So quite heroic!

The Pro Bono Queen’s Counsel award went (for the second time) to Anthony Metzer QC from Goldsmith Chambers for forming a specialist team to advise on the use and extension of international sanctions regimes to finance restorative justice for victims of sexual violence in conflict, with particular focus on the Yazidi victims of Da’esh.

Pro Bono Chambers of the Year went to 12 King’s Bench Walk for encouraging its members to dedicate nearly 700 hours to Advocate cases. Pro Bono Chambers Professional was awarded jointly to Leigh Royall from Spire Barristers and Patrick Sarson from Gatehouse Chambers for their dedication to making space in barristers’ diaries to undertake pro bono.

The gold star for perseverance, however, must surely go to Rhys Davies of Temple Garden Chambers and Ben Keith of 5 St Andrew’s Hill who jointly won International Pro Bono Barrister of the Year for their ‘remarkable work helping a British man wrongly imprisoned in Dubai for 13 years in a very complex case spanning multiple jurisdictions’. There has to be a film in that.

Meanwhile Lord Goldsmith QC, founder of Advocate and Chair of the judging panel said, “I’ve seen people take on much more than the commitment they signed up for because they want to help someone. I believe that doing pro bono is part of being a professional and these nominations demonstrate that this work is also close to the heart of other members of the Bar. Congratulations and thank you to all the winners and nominees, and to those whose efforts are unseen.”

Let’s Pal Up Over Pro Bono

Meanwhile more on lawyers’ Pro Bono activity this week from IT company Paladin which, in partnership with Clifford Chance and five other firms, announced that it is expanding its pro bono platform to the United Kingdom so as to improve links between lawyers and those seeking pro bono legal assistance.

Paladin’s technology creates what they call a ‘curated list of opportunities’ for volunteer lawyers based on their individual interests and preferences. It then manages and tracks the work which is undertaken. According to Clifford Chance Pro Bono Director Tom Dunn, “Pro bono work has never been more important, both for its impact on society and how it can turn a good legal workplace into a great one. We believe it is important not only to do good, but to be smart about how we do it, and Paladin is the perfect partner for any law firm chasing the same goals. With just a few clicks, Paladin better matches those with skills they want to offer to those in need, leaving everyone better off.”

Clifford Chance has already had extensive experience of Paladin in its US practice. This led, says the firm, to an increase of more than 93% in pro bono hours while at the same time saving around 100 hours of administrative work in one year alone. In addition, it introduced the firm to new community partners. “Which means we’ve ultimately been able to have a greater impact,” the firm says. Sound like a Win-Win all round.

Homeward Bound for Farrer’s

Now that’s what a PROPER law firm looks like

In a clear sign of the gathering momentum towards a partial return to office life Farrer & Co has announced that from this week all members of its team should be back in Lincoln’s Inn Fields for at least 40 per cent of the week.

As a concept this would have been literally unthinkable just two years ago. But that’s the Covid effect – it’s transformed the way we see almost everything in terms of both time and space. And the added benefit for Farrers is that the period away from the office created the opportunity for an office refurbishment which will facilitate this new ‘agile’ working framework.

In particular the fresh approach means that all meeting rooms have been upgraded with new technology to facilitate more effective hybrid meetings that allow for better parity of experience between those working from home and those in the office. Among other changes a new wellness and multi-faith room has been created for private worship and reflection, as well as a dedicated privacy room for nursing parents.

Farrers is not the only firm to transform itself over the past year or so but those who have not done so might kick themselves for missing the opportunity. As Rachel Lewis, partner and Board Member at the firm commented, “When the pandemic struck, we acted quickly, not only to offer support to our people but also to listen to what they really wanted from us. We plan to continue to evolve our work-life policy, in collaboration with our employees and we will trial and finesse the new policy and systems over the next few months.”

Kennedys Offers Extra Day for Mental Health

While Farrer & Co. has now plugged in its new agile system of working Kennedys is still working on its vision for the future. According to an announcement this week it is now in the middle of a consultation programme, starting in London, asking colleagues what they want their workplace to look like in the years ahead.

Suzanne Liversidge, Global Managing Partner said: “While home working has been popular, the number one reason we’re hearing from people for coming back into the office is the social interaction.

“The pandemic really forced us to stretch our thinking about how best we could look after everyone. We can’t promise the rooftop pool, but we do want to create an environment that is as welcoming and supportive as possible, and we want to hear people’s views on what that looks like.”

Nonetheless some innovations have already gone ahead including a series of art classes, run live across three different time zones, in which more than 100 people around the world took part.

“The response was absolutely amazing. People only needed a pencil and a piece of paper, and I think that simplicity made it work,” said Christopher Malla. head of healthcare and strategy board member.“

Maybe the most important change, however, is the most recent – the introduction of an annual ‘wellbeing day’.

“The wellbeing day is a bonus, but by calling it that we’ve found that it’s encouraging people to think differently and use it to do something for themselves,” said Caroline Wilson, global HR director. “Over 600 people have already requested their wellbeing day so far.” I bet they have!

The Language of Law

Are they speaking a foreign language? Image courtesy of Resolution

Family Law – maybe for all the wrong, sad reasons – is becoming increasingly important in national life. But among many people there is probably little real understanding of its jargon.

So this week Fletcher Day launched theFamily Law Language Project (FLLP – not to be confused with the firm FliP, Family Law in Partnership) which aims to make family law easier to understand, less hostile and more accessible to everyone.

There is clearly a need as highlighted recently by Helen Adam, Chair of the Family Solution Group. “A new language around family breakdown is needed to ensure safety and protect children of parents who separate,” she said. “If that is to happen then we, the family professionals, must lead the way to help politicians, the press, the public and ultimately the parents who separate understand a safer approach when parents live apart.”

The Family Law Language Project is the result. Through the use of social media and accessible content, FLLP seeks to:

Help those who come into contact with family law to better understand the terms that are used;
Identify terms that are often misunderstood, or that have become outdated or offensive;
Identify and inform people about misuse of family law terms in the media;
Identify language that is aggressive or which is not focussed on the welfare of children and suggest alternatives.

Fletcher Day family partner Emma Nash who conceived the project summed it up.

“The words we use are important,” she said. “We need to re-think the language of family law and move away from terms that promotes conflict and adopt a simpler, more accessible terminology that puts the welfare of children and their families first. Too often, I hear parents talking about having a ‘custody battle.’ This is an example of an outdated and inappropriate term that has no legal meaning, is not child focussed and increases conflict. This is only one of many examples of how poor use of language is negatively affecting those who need the law to help them. It is time to change this.”

For more go to the FLLP website.

And finally….It’s COP Again

To link with COP26 Lex Mundi (the global law firm network) and its Dutch member Houthoff has updated its Global Climate Change Law Guide which analyses policies, measures and legislation related to climate change regimes in more than 35 jurisdictions around the world.

According to Lex Mundi the interactive, user-friendly guide provides a tool for in-house counsel and external advisers to compare and contrast laws across different jurisdictions and markets. “Users are able to select jurisdictions of interest and create side-by-side custom reports to benchmark both legal developments in relation to climate change regimes, and to set priorities on actions to address the climate crisis,” says Lex Mundi. “We hope that, by curating this guide, in-house counsel and their advisers will more easily be able to navigate the complex web of frequently updated regulations and legislation as national leaders seek swift action to avert the climate crisis.”

+ LEGAL COMMENTARY OF THE WEEK

THE RIGHTS AND WRONGS OF DISCIPLINARY PROCESSES

Sadly, it’s all ended in tears
Image courtesy of UK Parliament

The Government has got itself into a right old mess over the Owen Paterson affair. But maybe it’s a matter of going back to first principles of natural justice suggests Rebecca Thornley-Gibson

If an employer decided midway through an employee misconduct investigation to carry out a wholesale review of its disciplinary policy with the consequence of halting the progress of that individual’s case for an indeterminate period, many would question the fairness and rationale of the timing.

Yet this is what the government saw fit to do in the Owen Paterson lobbying case where the independent Commons Standard Committee had determined there had been multiple breaches of lobbying rules.

Although it the government has now exercised an embarrassing U-turn in its plans to overhaul the conduct review, the controversy should raise many questions about natural justice and fairness when carrying out conduct investigations in a workplace environment.

The right to a fair hearing is a fundamental human right and that extends to employees being able to put forward their representations during a fair, thorough, transparent and objective investigation and any subsequent disciplinary process that is likely to lead to a sanction being given.

Owen Paterson had the ability to make representations during his investigation but what appears to be lacking from the MP conduct system is the right to appeal Standards Committee findings.

In the employment arena that right to appeal forms part of a fair and reasonable disciplinary policy and without it employers are likely to be unsuccessful in defending allegations of unfair process.

Another fundamental lynchpin of a fair investigation and disciplinary policy for employees is clarity. An employee is entitled to be made aware of how matters will be investigated and what outcomes and sanctions are tabled. If an employee found out midway through a process that the proverbial goal posts were being changed and the process was being paused to put in place a new system, the cries of unfairness should be deafening.

If the government had real concerns about the conduct system it operates, why not let the Owen Paterson case that had been independently reviewed finish and carry out a review for all new conduct investigations.

Rebecca Thornley-Gibson is a partner at DMH Stallard and employment law expert.

+ LEGAL ANALYSIS OF THE WEEK

The review of the Lasting Power of Attorney system: Who is it supposed to support? by Abigail Howson

Recognising that the system for granting Lasting Powers of Attorney (LPA), is ‘cumbersome, bureaucratic and complex’, the Ministry of Justice and Office of the Public Guardian is seeking to simplify the process and implement a predominately digital service. The main problem is that those who grant LPAs are not ‘digital natives’. Taking the process online will alienate many of them, or worse, they might be taken advantage of by unscrupulous “helpers”.

Most people who make LPAs need help. They are often elderly: some are vulnerable and many do not trust the internet. The current paper system safeguards those at risk by finding out what people seeking an LPA really want and helping to prevent “the lovely neighbour”, who is actually a crook, from making and registering an LPA fraudulently.

Advice and protection offered to people considering an LPA online may be limited. Although LPAs require a set form, there are many important choices, such as the identity of the attorneys, whether or not they can sell the house, or open and close accounts. If the process is as poor as online applications for probate have been, many LPAs will not fulfil individual needs because relevant points are not considered.

LPAs are complex with potentially very serious repercussions. The current system is not without flaws, but migrating the application online will not ameliorate them.

Delays in implementation exist not because of the process by which an LPA is created, but because staff in relevant financial organisations lack appropriate knowledge. Providing attorneys with access codes will not solve that problem, but may instead give unscrupulous attorneys greater scope to embezzle funds.

The current process could benefit from pragmatic change, but a digital only solution fails to serve those who have the greatest need to make LPAs. Hopefully, decision makers will agree.

Abigail Howson is a specialist private client lawyer and partner at Excello Law www.excellolaw.co.uk

LEADING LAW FIRMS Retaining top talent by Iain Blatherwick

To conclude our regular series on management issues Iain Blatherwick, former Browne Jacobson Managing Partner turned coach, reflects on how the challenges of retaining top talent have become more complex over the last 18 months and some steps to safeguard against this.

A recent survey by recruiter Robert Half reported that nine out of ten of the chief executives surveyed were worried about their ability to retain valued people. Factors identified ranged from burn-out and people wanting a change, through to the impact on corporate culture of remote working as there were fewer integration activities at work, less teamwork and a growing distance between colleagues. It is also apparent that geography is much less of a factor in employment decisions, so the opportunities for people to find new roles, without even having to leave home in some cases, has increased.

Some businesses are using this to support a drive for people to return to offices, but that hasn’t always landed too well either so clearly a balance needs to be struck.

For creative businesses, none of these challenges are insurmountable and I highlight two areas where leaders should focus:

1. Line management – the quality of a line manager can make or break the relationship between employer and employee. It is all very well having values and goals as a business, but if your line managers do not live up to those values or do their job properly then you have failed at the first hurdle. All too often line-management is thrust upon people as they progress, without any thought about whether they will be good at the role and without development or training. You need to be clear what authority the line manager has, so they can be transparent with their team. Take promotion – a LinkedIn Workforce Learning Report this year stated that employees with progression options stay at their businesses twice as long, so do your line managers have authority to discuss promotions with their teams and if so are they clear what the criteria and opportunities are?

Choose your line-managers wisely, invest in them and be clear what the scope of their role is – and if they are good, trust them don’t tie their hands.

2. Culture – A lot is said about culture, but what does that actually mean for an employee? People want to be proud of where they work, but also want a sense of belonging and it is this latter which is key at the moment. There may well have been less integration opportunities, but that need not be the case. The best businesses are using the opportunity for virtual meetings to involve people in a range of activities which would never have been possible through relying on getting everyone in a room. Shared learning sessions or facilitated discussions with topics including gender, race, mental wellbeing, financial wellbeing, through to the challenges facing working parents or learning about the menopause are happening and I have seen far more open, honest and engaged discussions than I have experienced before. There are also now so many more opportunities for fantastic online social events too, which are more inclusive than before, where for example childcare, distance from home or even the nature of the event might have restricted those who could attend to a usual core group.

The office clearly does still have role to play as it helps embed team spirit, support supervision and benefits new team members, but anyone waiting for everyone to be back is missing an opportunity to engage their people in a new way and help with learning and providing support in a broader way than previously. This will provoke deeper conversations and create stronger bonds than ever before.

Iain Blatherwick spent 11 years successfully leading law firm Browne Jacobson. Since stepping down from the managing partner role, Iain has completed the Academy of Executive Coaching’s (AOEC) practitioner Diploma Programme in executive coaching and is accredited by the European Mentoring & Coaching Council (EMCC). He recently launched Space + Time, an executive coaching programme aimed at c-suite level business leaders which offers support in horizon scanning and key decision making.

APPOINTMENTS OF THE WEEK

at Peters & Peters and Wedlake Bell

Emma Ruane has been appointed a partner at disputes law firm Peters & Peters. Ruane trained with the firm, qualifying into its civil fraud and commercial disputes team in 2010 and has particular experience in high value, multi-jurisdictional civil fraud and competition litigation.

Ruane is currently acting for the Republic of Mozambique in the US$2 billion “Tuna Bonds” Commercial Court proceedings against Credit Suisse and Abu Dhabi-based shipbuilder Privinvest and the for the Secretary of State for Health in a £250 million claim against a pharmaceutical company for breaches of EU and UK competition rules. “Emma is a brilliant lawyer with tons of experience of fraud, competition and multijurisdictional commercial disputes. Clients love working with her. She’s a great addition to our partnership,” said Jonathan Tickner, Head of Civil Fraud and Commercial Disputes at the firm.

Emilia Petrossian has been appointed as a Trade Mark Attorney within Wedlake Bell’s IP & Commercial group. This is an internal promotion and represents fast progress for Emilia who joined Wedlake Bell as a Trainee Trade Mark Attorney in August 2021 and qualified as a Trade Mark attorney just last month.

Her expertise covers clearance searches, advising on worldwide filing strategies and the prosecution of UK, European Union and International trade mark and design applications through to registration. Emilia is also experienced in opposition and cancellation proceedings, as well as company name disputes.“The IP & Commercial group at Wedlake Bell has an outstanding reputation and has provided an environment for me to thrive and develop the skills required to provide the firm’s clients with first class service,” she said.