Edward Fennell’s Legal Diary – Edition 92

February 11, 2022

Friday 11 February 2022

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

SHORT THOUGHT FOR NATIONAL APPRENTICESHIP WEEK

We are coming to the end of National Apprenticeship Week. Five years ago that would have meant nothing to the legal sector. Now, however, law firms of all types and sizes have come round to understand the enormous potential that apprenticeships have to offer especially in terms of generating real diversity and opportunity within the sector.

Kingsley Napley has been a trail-blazer linking up with The Times back in 2018 to promote awareness of apprenticeship. The firm currently employs two apprentices from that process who are on track to qualify as solicitors. The firm has also had a successful apprenticeship experience on the Business Support side.

Another champion of apprentices is Horwich Farrelly which has been running successful apprenticeships for ten years and was one of the first to introduce a solicitor apprenticeship scheme in 2019, enabling those without a degree to train ‘on the job’ and become qualified. The scheme has been very successful with 14 apprentices who started at Level 3, all progressing to the next level. As a result of this, Horwich Farrelly launched a new graduate solicitor apprenticeship last year for those looking to join from university. As Oliver Bate at Horwich Farrelly comments, “By offering a wide range of schemes, we’re able to attract and retain the best talent and build a workforce on equal opportunities.”

For more see our very interesting contributed article this week by Katherine Wilde of Farrer & Co. If you are serious about diversity – rather than just paying lip-service – then think apprenticeships.

The LegalDiarist

In this week’s edition

LEGAL DIARY OF THE WEEK

– Heavyweight Alliance of Top Law firms Fight Domestic Abuse

– The British are coming…again (and again and again)

– Divorce and Menopause – The Need for the Right Legal Advice

– Debevoise & Plimpton Backs Human Rights in Ethiopia

– ESG to Drive Disputes

LEGAL COMMENT OF THE WEEK

– US Department of Justice confiscates stolen Bitcoin

– The Future of non-fungible tokens (NFTs),

– The implications of the Online Safety Bill

– The ‘right to disconnect’

CONTRIBUTED ARTICLES OF THE WEEK

National Apprenticeship Week: celebrating alternative routes into law by Katherine Wilde

Have changes to spousal maintenance law had their desired impact? asks Deborah Jeff

APPOINTMENTS OF THE WEEK at Link and Davitt Jones Bould

E-VENTS

LEGAL DIARY OF THE WEEK

Heavyweight Alliance of Top Law firms Fight Domestic Abuse

A coalition of seven leading firms has come together to launch the Domestic Abuse Response Alliance (DARA) which will provide pro bono legal advice and representation to survivors of domestic abuse in need of protective injunctions. The founding firms include Travers Smith, Debevoise & Plimpton, Gibson Dunn & Crutcher, Hogan Lovells, Latham & Watkins, Reed Smith and Slaughter and May.

DARA has been set up by Sam Cottman, Director of Pro Bono at Travers Smith, so as to represent individuals who are not eligible for legal aid but who cannot afford to pay for private representation. It will provide help, support and representation from start to end of a case and will be one of LawWorks’ secondary specialisation projects. Its referrals will come from from the National Centre for Domestic Violence (NCDV).

It is estimated that one quarter of women in England and Wales, experience domestic abuse during their lifetime with two women murdered each week by a current or former partner. There are also many suicides attributable to domestic abuse.

DARA will be supervised by leading specialist family law firm, Beck Fitzgerald, under the guidance of Jenny Beck QC (Hon).

“I believe DARA is the largest pro bono advocacy service for survivors of domestic abuse ever assembled,” said Sam Cottman. ”I am delighted to see it go live and look forward to driving its growth over the years to come.”

The British are coming…again (and again and again)

In case you didn’t know – there’s a Bar here too
Image courtesy of Traveling Canucks

They were the second and third lead stories in the IRISH LEGAL NEWS yesterday (the top story was about a delay in releasing a Continuity IRA terrorist from gaol) – yep, British law firms were coming over and parking their tanks yet again on the emerald sward of Phoenix Park.

Somehow it seemed appropriate that Bird & Bird and Addleshaw Goddard announced their arrival simultaneously in Dublin yesterday. A return to the days of colonialism? Maybe. Addleshaws actually described itself as “EXTEND(ING) ITS GLOBAL FOOTPRINT INTO IRELAND” while the Bird & Bird comment focused on “Fully immersing them in the international Bird & Bird network.”

Post-Brexit it was inevitable that London law firms would want (or indeed need) to get established in the city of Joyce especially when the Irish profession made it clear that there was no way that UK lawyers could be absentee members (enough of that back in the 19^th century).

Addleshaw Goddard’s strategy is based on the take-over of local firm Eugene F Collins whose history dates back to the 1890s while the Birds are developing a start-up. All the accompanying comment from both firms stressed the synergies that exist but in a time of some tension – again – in Anglo-Irish relations it may require some kid glove treatment (and please don’t say anything about a Protocol).

Divorce and Menopause – The Need for the Right Legal Advice

The Family Law Menopause Project was launched this week by Farhana Shahzady to advice female clients to achieve the best financial outcome as they approach retirement.

“My worry as a family lawyer is that my peers, the court and judges assume that women are able to work for longer and have the ability to work full time, instead of acknowledging that hormonal changes may make it very hard for them to do so,” says Farhana Shahzady, Director at Family Law Partners. “Eight out of ten women will have menopausal symptoms which may have a significant impact on their daily life with the average menopausal period being anywhere between 4-12 years.[3]

The Menopausal Project aims to pose a direct challenge to the controversial Divorce (Financial Provision) Bill which was re-introduced to the House of Lords in July 2021. The Bill, spearheaded by Baroness Deech, and which is opposed by a large cohort of family lawyers, promises to provide greater certainty in relation to the financial outcomes of divorce, including limiting spousal maintenance payments to a term of no more than five years. “While the campaign does not seek to discourage financial autonomy, it does seek to halt the downward trend in spousal maintenance payments to save women and their families from financial hardship as they approach retirement,” says Farhana Shahzady.

The project has launched a survey to uncover trends and insight as to the prevalence of menopause (and peri-menopause) in family law cases. Family lawyers are invited to take part here:

https://www.surveymonkey.co.uk/r/FH9TPR7

For more go to:

https://twitter.com/LawMenopause https://www.instagram.com/lawmenopause/

Debevoise & Plimpton Backs Human Rights in Ethiopia

Mass displacement of the local population Image courtesy of the BBC

A landmark complaint against the state of Ethiopia has been placed before the African Commission on Human and Peoples’ Rights for ‘serious and massive human rights violations’ against Tigrayan civilians by a partnership of Debevoise & Plimpton, Legal Action Worldwide (LAW) and the Pan-African Lawyers Union(PALU).

The African Commission has responsibility for promoting the African Charter on Human and Peoples Rights and this is the first time it has received a complaint regarding the conduct of Ethiopian forces in Tigray. The complaint covers a variety of abuses including the military targeting of civilians and civilian infrastructure; mass and extra-judicial killings; gender-based sexual violence; arbitrary arrest and detention; mass displacement of civilians; destruction of property, foodstuffs, and religious and cultural heritage sites; ethnic discrimination; and enforced information blackouts.

The complaint requests that the African Commission should order Ethiopia to stop all violations and abuses against civilians in Tigray, allow unfettered access of food and humanitarian aid to the region, and ensure the protection of the human rights of all Ethiopians, especially in Tigray. It also requests that the African Commission immediately order these measures on an interim basis to protect Tigrayan civilians from urgent risk of irreparable harm.

“The African Commission has a unique opportunity to stand by victims and survivors from this conflict, to order emergency measures to stop unlawful killing of civilians trapped in Tigray, and to hold Ethiopia to account,” said Antonia Mulvey, LAW’s Executive Director. “We are keen to work alongside the Commission’s Inquiry, to put an end to the impunity that has allowed these crimes to continue.”

Catherine Amirfar, Debevoise Partner and Co-Chair of the International Dispute Resolution and Public International Law Groups, said: “We are honored to amplify the voices of Tigrayan victims and to seek accountability for those who perpetrated horrific crimes against them. We call on the African Commission to urge the government to end and remedy the abuses for which it is responsible.”

Road Ahead Clear for Irwin Mitchell to Support Victims of Road Accidents

Irwin Mitchell has announced that it will be joining the legal panel of the charity RoadPeace to support its mission to provide access to justice for crash victims and their families.

The arrangement is for an initial 12 month partnership and is intended to boost awareness of road safety issues at a time when changes to The Highway Code and concerns about so-called smart motorways have sparked debate about safety issues

“There are too many people whose lives have been shattered as a result of death or injury on UK roads and who need expert help to rebuild their lives,” said Claire Newstead, a partner at Irwin Mitchell and specialist lawyer in road incident claims. “We are delighted to be working with RoadPeace and look forward not only to being a part of the legal panel, but supporting the charity’s essential work in supporting victims as well as campaigning for greater awareness of the issues surrounding safety on our roads. Many of their aims and activities mirror our own and together we can do so much more to support those living with the aftermath of road crashes.”

There are currently five road deaths a day in the UK – a reduction of 50% from when RoadPeace was founded in 1992. However, the decline came to a halt in 2010. “This year is set to be another milestone in reducing road danger,” said Nick Simmons, RoadPeace CEO. “We look forward to working alongside Irwin Mitchell in the years ahead as we continue to work towards changing attitudes and designing out danger for the benefit of all road users.”

ESG To Drive Disputes

Just published this morning, a new report based on interviews with general counsel, litigation funders, law firm partners, QCs and PR advisors from across jurisdictions which indicates that Environmental, Social, and Governance (ESG) issues are set to dominate future disputes. The largest percentage of survey respondents highlighted ESG as being the area of note for future litigations. Unsurprisingly in the age of social media the majority of respondents (61%) consider reputational impact when advising clients in a dispute.

For more see “Finding the right line: litigation PR in an evolving ecosystem”

LEGAL COMMENT OF THE WEEK

TOPIC: The largest ever confiscation by the US Department of Justice of stolen Bitcoin, worth more than $5bn (£3.7bn), and the arrest of and charging of two people for attempted money laundering.

Is it ‘ Free’ because Bitcoin might end up worthless? Or will this photograph be worth a fortune in NFTs?

COMMENT FROM: Mark Tibbs, Cyber Intelligence Director at MDR Cyber

“This landmark case demonstrates that coupling crypto-tracing alongside other more traditional investigatory methods – in this case search warrants for digital media – allows the veil of anonymity associated with crypto transactions to be pierced, wrongdoers brought to justice and stolen money recovered.

“ This enormous seizure represents a significant step-change in authorities’ success and ability to apply enforcement measures to seize stolen cryptocurrency. It dwarfs the value of previous seizures, the highest of which previously was in the low millions of dollars.

“Using criminal and civil powers to chase down stolen funds from hacks and frauds is increasingly common and evidently an effective method in the realm of cryptocurrency. This is quickly becoming a crucial strategy for law enforcement, prosecutors and legal firms looking to make recoveries on behalf of victims.”

TOPIC: The Future of non-fungible tokens (NFTs)

COMMENT BY: Nigel Green of deVere Group

“I believe 2022 will be the breakout year for NFTs and, due the diversifier factor, within five years the decade’s hottest emerging asset class will become a standard feature of investment portfolios.”

TOPIC: The potential increase in civil claims arising from the proposed Online Safety Bill which will level the playing field for victims of online abuse AND scope for improving the Bill through the SPITE Project

COMMENT BY: Nick Grant, Senior Associate at Payne Hicks Beach

“In the preparation of the draft Online Safety Bill, the Law Commission found that the current law has failed to keep pace with the rise of smartphones and social media. This is certainly the case from our experience and we welcome attempts to update and clarify the legislation in this fast moving area of law.

“There are a whole host of interesting reforms proposed by the draft Bill. Importantly, the Joint Committee has recommended that the Government create further legislation to allow users to sue providers for failure to meet their obligations under the proposed new act. At the moment, if social media platforms are unwilling to cooperate, it can be expensive and time consuming to remove unlawful content from their platforms and many people do not have the resources or resilience to battle with social media giants. In particular, we can see that the revolutionary proposal that social media platforms must proactively prevent the posting of certain types of harmful content (such as revenge porn) rather than to respond reactively to complaints will likely have a substantial impact on the landscape of civil claims against social media platforms more generally.”

COMMENT FROM: Harry Eccles-Williams, Managing Associate at Mishcon de Reya and co-lead on the Sharing and Publishing Images To Embarrass (SPITE) project

“The Online Safety Bill is an important opportunity to better protect victims of revenge porn. The current draft is an excellent step forwards, but more can and should be done.

Our Sharing and Publishing Images To Embarrass paper, produced in partnership with Queen Mary Legal Advice Centre, proposes amendments to the Bill which would strengthen the protection of these victims.

We welcome the Government’s recent commitment to improving the protection of victims of revenge porn in the new draft of the Bill, and will continue to advocate for our recommendations to be implemented.”

To read more about the SPITE project or if you have been the victim of image-based sexual abuse follow this link to QMLAC’s website.

TOPIC: The proposed ‘right to disconnect’ following an announcement by the Belgian Civil Service that the country’s federal employees would no longer be required to answer after-hours work-related phone calls or emails.

Brussels by Night – You can scream but no-one’s going to pick up the phone
Image courtesy of themayor.eu

COMMENT FROM: Tessa Cranfield, Partner at Seyfarth
“Lawmakers in Europe are growing increasingly concerned about the ‘always on’ culture engendered by the pandemic, and the move to remote working.”

“Rules passed in specific states like France and Ireland have so far had little impact, often passing the buck to employers and employee representatives and not backed by real sanctions. But the proposed new directive could see more of a sea-change, setting minimum rules across the EU.”

CONTRIBUTED ARTICLES OF THE WEEK

National Apprenticeship Week: celebrating alternative routes into law

by Katherine Wilde

In 2017, we launched our first apprenticeship in business services at Farrer & Co. Five years later, this Sunday sees the deadline for applications for our first cohort of solicitor apprentices. Unlike other solicitor apprenticeships, our scheme, delivered alongside The University of Law, will see apprentices spend their first two years rotating through various business services teams to truly understand the firm’s operations and priority sectors. This will then be followed by two years in a paralegal-style role in our practice areas, before two years on the firm’s six seat trainee solicitor rotation before qualification.

Having begun my career in commercial litigation before transferring to business services, I have seen first-hand the value of being able to understand a complete picture of a firm’s operations. Reflecting on this, it felt essential to build the ability to take a wholescale view into our new solicitor apprenticeship scheme. The solicitors coming through this programme will have a clear grounding of experience in many areas of the business which will stand them in excellent stead for their future.

Two apprentices will be welcomed to our firm this autumn, and we look forward to working with them as they develop into commercially astute solicitors providing the high-quality work that is synonymous with our firm to the clients they work with. Our solicitor apprentices will be truly embedded in the firm, with both inter-personal relationships and extensive experience of legal business, which we hope will empower them for their whole career with us.

It’s exciting to be marking National Apprenticeship Week in this way and celebrating alternative routes into law. Our very first business services apprentice remains with us today as a Marketing Communications executive, and we look forward to reflecting on similar success stories with our solicitor apprenticeship scheme in the years to come.

Katherine Wilde is Director of Knowledge, Learning and development, Farrer & Co LLP

Have changes to spousal maintenance law had their desired impact? asks Deborah Jeff

Previously it was often the case that at the end of a marriage the breadwinner would face a lifetime of maintenance payments to their former spouse. While this may have been appropriate in some cases, there were other instances where ‘joint lives spousal maintenance’ was ordered where the receiving party could reasonably be expected to work.

The ‘meal ticket for life’ is now less attractive. Changing views in society have been persuasive, along with arguments of such orders being a form of discrimination to the breadwinner. Why should vows made historically mean an earning former spouse remains financially responsible for their ex when the latter can earn for themselves?

SS v NS in 2014 – in which I acted for the wife – changed those joint lives orders. There are now more ‘term orders’ i.e. for a fixed period, meaning the dependent spouse becomes financially independent as soon as possible. It is often questioned, however, why the courts don’t treat the earning party’s income capacity as an asset of the marriage. If the couple made choices during the marriage where one of them is the homemaker, allowing the other to pursue a successful career, why isn’t that earning capacity also an ‘asset’ to be shared between the parties?

Miller & MacFarlane in 2006 gave us the principles of needs, compensation and sharing in financial settlements on divorce but, since SS v NS, only needs now apply in spousal maintenance. The question remains that if marriage is a true partnership, why is the earning party’s income capacity not considered a product of the marriage too?

Both parties have arguments to support their case. Discriminatory outcomes can feature for the breadwinner in being financially free, and the receiving party for their contribution as a homemaker not being reflected in the sharing of income.

Family law justifies this by prioritising the concept of finality, that the financial links between spouses must come to an end soonest. It is perhaps only a matter of time before these arguments are fully explored again in case law and further adjustments are made as to how spousal maintenance is approached and quantified.

Deborah Jeff is a Partner and Head of the Family Law department at Simkins LLP, with extensive experience advising high net worth individuals on the complex financial aspects of divorce and the psychological implications of divorce proceedings.

APPOINTMENTS OF THE WEEK

Tony Morris, the highly regarded film, TV, and music lawyer has been appointed as a consultant at West End media law firm Level. He joins from from Swan Turton where he was a consultant having previously spent 22 years at Marriott Harrison (14 as Managing Partner) and a six years at Cameron Markby Hewitt (now part of CMS).

Morris is widely recognised as one of the industry’s expert authorities in Media and Entertainment law with a focus is on clients who develop, finance, produce and distribute films and other audio-visual content, including record companies, music publishers, composers and musicians, screenwriters and other authors, creatives and influencers. He is the author of ‘The Filmmakers’ Legal Guide’, a practical ‘how-to’ book aimed at producers which is now in its second edition. He is also currently a guest lecturer at the National Film & Television School (Beaconsfield), at the University of Portsmouth and for the Raindance Organisation.

Amy Sullivan, Level’s Head of Growth said, “We are delighted to welcome Tony to Level. He is one of the film & TV industry’s most knowledgeable legal experts and this fits perfectly with our award-winning Media and Entertainment team.”

John Condliffe, the well-known real estate lawyer is joining Davitt Jones Bould (DJB) as a partner having completed an MSc in Business Analytics at UCL (including studying machine learning and big data). He has particular knowledge in outsourcing and leasehold liability deals, advises on indirect property investments, and uses a highly analytical and data-driven approach to deliver legal advice in a robust, commercial and pragmatic manner.

Condliffe was previously a partner at at Hogan Lovells, where he practised for 24 years. He also holds a master’s in Engineering Science and was named as a leading individual in Chambers 2020 and recommended in the Legal 500 2020. To add to the mix he is also a co-founder of Refinery Tech, a fintech startup.

E- VENTS

We hope that you have found this edition of the LEGAL DIARY interesting.

If so, please relay on to colleagues.

Meanwhile we look forward to receiving your legal diary stories, comments, insights and other news

at

fennell.edward@yahoo.com

Have a good weekend.