Edward Fennell’s Legal Diary – Edition 83

Friday 26 November 2021 

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

SHORT THOUGHT FOR THE WEEK

– REACH FOR A LAW BOOK (which AI will read for you)

The stand-out speaker last night at the International Law Books Facility’s 15th Anniversary celebrations – sponsored by Brown Rudnick – was Professor Richard Susskind OBE, the pioneer guru of IT in the law, who entertained his audience with reflections on the pros and cons of the traditional book versus the kindle as well as his vision of the future of law.

To the surprise of some he confessed that, in many contexts, he still prefers the book. “I love books and I don’t want to see the end of them any time soon,” he said. But having recommended everyone in the audience to write a book – if only for the joy of handling, for the first time, the finished printed product – he went on to paint a powerful picture of the impact that IT and AI will have on the law. “I can assure you,” he declared, “that AI will have transformed the law by 2030 and that’s why we are very lucky to be alive in this period.”

So is AI the long-awaited deus ex machina which will solve the shortage of criminal barristers and cut the ever-lengthening list of cases festering for justice? Certainly Professor Susskind believes that there is a moral case for the widespread adoption of on-line courts as a way of making the law more accessible. However, as former Google boss Eric Schmidt pointed out – almost terrifyingly – on Radio 4’s Today programme this morning, the dangers of AI ‘taking over’ cannot be over-stated. An AI-driven future is not risk-free – especially in a court room

The LegalDiarist

In this week’s edition

+ SHORT THOUGHT FOR THE WEEK: Susskind on books, AI and the Law

+ LEGAL DIARY OF THE WEEK

– Law Firms Do Well For Social Mobility (up to a point)

– More Apps Please (including BCLP)

– Privileged Classes (according to Lex Mundi)

– INTERPOL now a Threat to Justice?

– Let’s not make any bones about it (physiotherapists and the law)

+ LEGAL COMMENT OF THE WEEK

– TOPIC: Banks to compensate victims of money transfer scams for losses by Stephen Rosen

– TOPIC This week’s opinion for the UK Information Commissioner’s Office regarding data protection and privacy expectations for online advertising by Edward Machin

–  TOPIC: Findings from the latest ONS migration statistics by Farzin Yazdi

+ CONTRIBUTED ARTICLE

COP26: THERE MAY BE LEGAL COMPLICATIONS AHEAD points out George Borovas

+ E-VENTS

LEGAL DIARY OF THE WEEK

Law Firms Do Well For Social Mobility (up to a point)

The Social Mobility Foundation (SMF) has just published its annual list of top performing organisations and once again legal outfits – predominantly but not exclusively firms of solicitors – do very well making up 25% of the Top 75 (although, admittedly, this was down from 30% last year). Banking, financial services and insurance represented the next 18% (unchanged from last year), while the public sector formed another 16% (down from 22%).

The Index weaves together two strands – questions directed at employers and an employee survey. Employers are evaluated across seven areas such as working with young people and progression, while the employee survey contextualises this data. There was some disappointment this year, however, at the percentage of organisations collecting data on retention and progression – although this might be attributable to Covid. The survey results also came with a word of warning from the SMF. “Just 11% of organisations collect and analyse data about pay by socioeconomic background,” it said. “Collecting this data is vital for organisations to measure and address the extent to which people from lower socioeconomic backgrounds can get on once recruited, so these numbers are disappointingly low.”

Linklaters was one of the Magic Circle firms to feature in the list and David Martin, Global Diversity and Inclusion partner at Linklaters, commented,  “I’m very proud of all of the work that is being done at Linklaters, which has led us to be featured in the Social Mobility Employer Index again this year. Our ambition is to be a leader on social mobility, and we will continue to work hard to level the playing field and ensure that an individual’s background is never a barrier to opportunity at Linklaters.”

So here’s the SMF list for 2021 in rating order for law firms:

01 Browne Jacobson

03 Herbert Smith Freehills LLP

09 Bryan Cave Leighton Paisner LLP

11 Ministry of Justice

13 CMS

15 Squire Patton Boggs

17 DLA Piper

19 Baker McKenzie

24 Allen & Overy

26 Crown Prosecution Service

27 Slaughter and May

28 Linklaters LLP

30 Pinsent Masons LLP

34 Lewis Silkin LLP

35 Hogan Lovells

37 Freshfields Bruckhaus Deringer

42 Shoosmiths

43 Simmons & Simmons

44 Brodies LLP

47 Eversheds Sutherland LLP

48 Osborne Clark

50 Shepherd and Wedderburn

51 DWF Law LLP

52 Macfarlanes LLP

53 Clyde & Co LLP

56 Burges Salmon

59 Addleshaw Goddard LLP

62 Radcliffe Chambers 63

RPC LLP

67 Taylor Wessing LLP

68 Mishcon de Reya LLP

69 Ashurst

70 White & Case LLP

74 Mayer Brown

More Apps Please (Apprenticeships that is)

One of the key recommendations arising out of this year’s Social Mobility Foundations index is that employers should have “A well-structured non-graduate route.” For the legal profession that means the adoption of apprenticeships. And by happy coincidence just this week Bryan Cave Leighton Paisner’s extended its award-winning apprenticeship scheme to its Southampton office.

“We are really excited to extend the award-winning BCLP apprentice scheme into our Southampton office next year,” said  Partner in Charge (Southampton) Anna Robbins. “It’s so important to continue to broaden the range of routes we can offer towards solicitor qualification and this is a great opportunity to extend our established scheme into our growing Southampton office.”

BCLP originally launched its apprenticeship programme in 2015, with three recruits into its Manchester office. Subsequently it has helped develop this new route to qualification as a Solicitor, with 21 Apprentices currently in the Manchester office across the roles of Paralegal, Solicitor and Trainee Solicitor. But Southampton is an increasingly important legal centre and it’s good to see it trail-blazing on the Apprenticeship path for the deep South (which, believe it or not, also needs a bit of levelling up).

Privileged Classes

Lawyer-client privilege and confidentiality – how much do they vary around the world?

For anyone with international business crime issues this has to be an important question. So Lex Mundi , the global network of independent firms, has tapped into its contacts and has just published an expanded Global Attorney-Client Privilege Guide. Developed between the Lex Mundi Litigation, Arbitration and Dispute Resolution Group and Jenner & Block ( the Lex Mundi member firm from Illinois, USA) it claims to be the broadest resource of its kind freely available to General Counsel and in-house legal teams.

Certainly it is ambitious covering a total of 106 jurisdictions in 69 countries and including US federal law, the State Law of 32 US states, and the law of 4 Canadian provinces. “The Lex Mundi Global Attorney-Client Privilege Guide is the broadest resource available regarding attorney-client privilege and professional confidentiality,” commented David Greenwald, Partner at Jenner & Block LLP, “The Guide enables in-house and outside counsel to identify key and significant differences among jurisdictions and provides citations to enable further research. Each submission discusses whether or not the jurisdiction considers in-house counsel to be within the privilege or bound by the rules of professional confidentiality.”

So could be useful!

INTERPOL now a Threat to Justice?

Following the news that the UAE’s Major General Ahmed Naser Al Raisi is the new President of Interpol one or two people have queried whether it can be relied upon as the bastion of law and order internationally which we might have assumed. As Radha Stirling, CEO of IPEX Reform commented bluntly. “Interpol is complicit in numerous and serious human rights abuses and will soon be held to account. Interpol has become a pay-to-play organisation, open to manipulation and abuse by countries with poor human rights records. Countries like the UAE, Saudi, Qatar, Bahrain, Iran, Turkey, Russia, Egypt and China have been able to use the crime tool for their own personal vendettas.”

Oh and that wasn’t all. Ms Stirling went on to say, “Innocent individuals have been listed on Interpol, arrested, detained and tried for “crimes” that don’t even meet Interpol’s minimum reporting criteria. Journalists, activists, businessmen and credit card debtors have been locked up in Western nations at the mere request of countries who repeatedly take advantage of their membership with Interpol.”

So well, er, that’s a bit worrying.

Let’s not make any bones about it

One knows that the world is going seriously awry when a physiotherapy practice – Yes, PHYSIOTHERAPY! – is caught ripping off a health insurance company. Talk about kicking someone when they are down!

The case involved Covea Insurance which had received an invoice for treatment from physiotherapist Mark Browes at 10 Bridge Limited. The invoice was shown to be fraudulent with the result that Horwich Farrelly, the specialist insurance industry legal services firm, alongside Covea Insurance, were able to recover £35,000 in legal costs.

Now while this might be just a small wince for a city law firm it’s a pain in the neck for those outside the London elite. As Jared Mallinson, Partner and Head of Counter Fraud at Horwich Farrelly, said, “It is rare for a physiotherapy company to be found to have presented a fraudulent document and this case marks an important victory over such a professional organisation.”

Kelly McQuaid, the Associate Partner who handled the case added that, “Insurers rely on the honesty and integrity of the medical profession when assessing claims for physical injury.”

Quite right. Physiotherapists above all others should not have a dishonest bone in their body.

LEGAL COMMENT OF THE WEEK

TOPIC: Banks to compensate victims of money transfer scams for losses

Stephen Rosen, financial services partner at Collyer Bristow, comments:

“The banks will rarely accept responsibility for money lost to scammers even though their own compliance failures are to blame. This leaves victims helpless, because they simply do not have the funds to start a David and Goliath fight. There must be a change.

Banks have the financial means and ability to put stronger checks in place that would prevent push payment fraud. Until now they have had no incentive to work harder, so this legislation is a welcome arrival.”

TOPIC This week’s opinion for the UK Information Commissioner’s Office regarding data protection and privacy expectations for online advertising.

Edward Machin of Ropes & Gray’s Privacy, Data Protection and Cybersecurity team comments

 “Online advertising and privacy have become a Gordian knot for businesses and regulators, as they grapple with identifying how to use rapidly evolving advertising technologies in a privacy-compliant way. Yesterday’s report is a good example of this tension, in which the regulator provides high level guidance on its expectations and asks industry to propose solutions that unravel the knot. That is no easy task, and companies would be forgiven for wanting more concrete examples of what they can and cannot do when designing and using complex online technologies.”   

“As an example, the ICO requires companies to build data protection by design and default principles into their existing technologies rather than wait for privacy-friendly solutions to emerge. But that will often be easier said than done for technologies currently in use that are not configured, and cannot quickly be retooled, to meet those standards. That said, most businesses can take comfort from the fact that enforcement does not appear to be the ICO’s immediate priority in this area.”

 TOPIC: Findings from the latest ONS migration statistics.

Farzin Yazdi, Shard Capital’s Head of Investor Visa who works closely with immigration lawyers regarding Tier 1 (Investor) visa category, comments.

  “Whilst today’s headline migration numbers fell considerably, the statistics show that investor visa applications are back to pre-pandemic levels. This is the first quarter where the UK removed most COVID restrictions, but the entire world has not fully opened which is why China & Hong Kong, whilst still the top nationality of origin, only account for 28% which is around half of normal levels. Americans continue the trend with 10%, after Russians with 12% of applications issued.

“From an investment perspective, the UK is still attractive to HNW migrants. In addition to takeovers, the daily news of investments into start-ups, early stage, and scale up capital continued to amaze most market participants.

“As a result of Brexit, European Investor applications are materialising from France, Cyprus, and Switzerland. In a post Brexit world, you are limited to the time spent in a European destination before having to navigate your way through their immigration system. The UK has become a new market to those countries in the same way Europeans have for the UK’s Investor Visa.”

CONTRIBUTED ARTICLES

COP26: THERE MAY BE LEGAL COMPLICATIONS AHEAD points out George Borovas

The past few weeks have been astonishing with respect to the prospect of seeing a wave of new nuclear build around the world. There seems to be an emerging consensus that nuclear is absolutely necessary for the world to tackle climate change but also sustainable development.

In the past few weeks, a number of countries appear to be moving forward with national plans to develop new nuclear. For example, Romania just signed an agreement to build a Small Modular Reactor (SMR) with NuScale of the US, France is expected to announce an ambitious EPR new build programme alongside the development of its own SMR technology and the UK government has announced an investment in the Rolls Royce SMR consortium, as well as establishing a new financing model for nuclear projects, the Regulated Asset Base (RAB).

But are there legal challenges that may delay this new build in the UK and elsewhere?

One important challenge, especially for the emerging SMR and Advanced Reactor (AR) technologies, will be the application of the international conventions and national regulatory frameworks to these technologies so that they may be licensed without delays. As these new technologies were not contemplated when most of the nuclear conventions and regulatory frameworks were drafted, these would need to be reviewed and appropriately modified. A significant difficulty with these novel designs will be to demonstrate and approve their safety case which will be based on passive safety features as well as reduced off-site emergency planning zones (EPZs). In addition, possible changes to the fuel and coolant may require new licensing approaches, as well as the need to develop new expertise within regulatory organisations.

While these challenges are all manageable, it would be important for SMR and AR developers to identify these issues early on and proactively address them with the relevant regulatory authorities.

George Borovas is head of Hunton Andrews Kurth’s nuclear practice and managing partner of the Tokyo office.

E-VENTS

BDB PITMANS PATHFINDER: RIGHT TO WORK AFTER COVID AND BREXIT

Have you registered for our latest  ‘Pathfinder’ webinar?

With job vacancies in many sectors being at an all-time high, the next webinar in our HR Pathfinder series will focus on right-to-work checks, how to do them correctly and the consequences if you don’t! Issues we will cover during the webinar will include: 

When to do right to work checks

How to conduct a compliant right to work check 

Checks for European nationals

Problem areasThe possible consequences of not conducting right-to-work checks properly

This will be an interactive session where you will be able to ask questions of our expert panel.We look forward to welcoming you.

If you would like to attend, please RSVP here or click the button on this mailing.The session will be held using Zoom, a link will be sent to you in your registration confirmation email and will also be re-sent on the morning of the webinar.Follow us @BDBPitmans #BuildingBetter

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