Edward Fennell’s Legal Diary – Edition 99

Friday 1^st April 2022

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

SHORT THOUGHT FOR THE WEEK – P&O RAISES THE JOLLY ROGER

There was a kind of existential moment of shock when P&O Ferries Chief executive Peter Hebblethwaite admitted that the company had both broken the law over the firing of its seafarers and would have no compunction about doing so again. And when Mr Hebblethwaite volunteered, insouciantly, that the firm was ready to pay the financial penalty it was more or less an admission that this was simply ‘the price of doing business’ and that the matter of acting illegally gave him no qualms.

Where exactly P&O’s conduct stands on a long scale ranging from knowingly cutting down a tree illegally to invading a peaceful neighbouring country is a matter for philosophical debate. But if as a society we believe in the rule of law then the price to be paid by the offender must surely be both severe and represent a major deterrent to others. Anything less amounts to an admission that ‘might is right’ and that the law is nothing more than a voluntary code.

The LegalDiarist

In this week’s edition

THE LEGAL DIARY OF THE WEEK

– Morgan Lewis Lawyers Get Jamala to the Concert for Ukraine

– No Disputing Quarterly Quality at PCB Byrne

– Retirement Blues

– Writing Off the Office? Not Yet, says Knight Frank

LEGAL COMMENTS OF THE WEEK on the Family Court Statistics Quarterly; the Significance of ‘No Fault’ Divorce; Judicial Appointments

LAW FIRM MANAGEMENT: INSIGHTS OF THE WEEK on ‘Compliance’ for the paralegal sector; Work-life balance in law firms: Minding the generational gap; and addressing the menopause taboo in law.

APPOINTMENTS OF THE WEEK at Shakespeare Martineau and Ropes & Gray

LEGAL DIARY OF THE WEEK

Morgan Lewis Lawyers Get Jamala to the Concert On Time

As you might have seen, Tuesday’s Fundraiser concert on ITV for the Disasters Emergency Committee’s Ukrainian humanitarian appeal featured the Ukrainian singer Susana Jamaladinova – stagenameJamala.

She originally shot to Continental fame by winning the 2016 Eurovision song contest with 1944, a song about Stalin’s Crimean deportations – so her appearance could hardly have been more appropriate.However, getting a Ukrainain into the UK right now is harder than estracting a truthful statement out of Vladimir Putin so it required the pro bono skills of Morgan Lewis lawyers Jennifer Connolly and Carina Bryk in the firm’s London immigration team to get the star over the wire and on to the stage in time.

“In a process that would ordinarily take 8 weeks, our immigration team were able to liaise with senior members of the Home Office and UK Music to make exceptional representations to have Jamala and her manager’s visa applications processed and approved in less than 24 hours,” explained the firm.

“Concert for Ukraine and its preparations are an incredible feat,” added Jennifer Connolly. “Given the successful expedited visa application for Jamala, she was able to contribute to the event’s success.”

With the fundraising from the concert, the DEC’s appeal as a whole has now raised £260 million.

No Disputing Quarterly Quality

New to the LegalDiary team was the PCB Byrne Quarterly, a round-up of key dispute resolution developments. Well-presented and written in a lively style the e-magazine covers a refreshingly broad range of topics. Particularly enjoyable was the article in the current edition by Senior Associate Emmeline Coerkamp “Does the future of the SFO hang in the balance?” which discusses the potential impact of the independent review into the workings of the SFO following disclosure failings identified in the Unaoil case. It certainly makes for an uneasy read for SFO Director Lisa Osofsky and adds to the pressure on what was, as Coerkamp puts it, ‘formerly a prosecutor powerhouse’ but is now stumbling badly.

Also interesting was an article by the firm’s Senior Partner Anthony Riem and Associate Andrew McLeodon about the Akhmedova v Akhmedov case which featured the lessons that can be learned about dealing with a recalcitrant defendant in civil fraud proceedings. “Such defendants seek to ignore their obligations to the Court or even actively frustrate the Court’s orders and processes. That type of litigation conduct might be seen in the short term to have benefits, in disrupting or even derailing claims against them. Yet the various powers of the English court to grant interim remedies enable it to interrogate a defendant’s claims and if necessary, find other methods to compel a defendant to comply with their obligations.”

Almost elegiacally there is also a piece on ‘Recent Russian Cases in the English Courts – some recent important decisions for Russian parties who chose to litigate before them.’ When, one wonders will we see their like again?

Take a look for yourself at https://www.pcb-byrne.com/wp-content/uploads/2022/03/PCBB-Quarterly-Newsletter-Q1-2022-004.pdf

Retirement Blues

Yesterday David Kerr stepped down as Bird & Bird’s CEO after a remarkable 26 year term. For someone who has given so much of his life to the firm it must have proved a big wrench. So maybe he might appreciate Clarke Willmott’s Life, Lemons, and the Law podcast series that discusses ‘life changing experiences of all kinds; the story behind them, the immediate impact, and the long term – often positive – consequences’.

The current edition features former England rugby players Damian Hopley and Christian Day who talk about the challenges of retiring from a career which is all-absorbing as well as conferring high status and financial rewards – so pretty similar to the scenario facing senior lawyers as they leave the office for the last time.

Christian Day retired after 17 years as a professional. But even so it was still pretty painful. “I had everything lined up for me, but it was still hard. It does hit home that you’re not in that environment anymore. The last day I went to the club, shoved all my kit into a binbag and walked out of the club and that was it. There was no tunnel, no fanfare and you never go back. I don’t think anything can prepare you for when you hand back the boots and the kit and the car keys.”

David Kerr probably hasn’t handed back his boots – but it might feel as if he had done.

The podcast is available on platforms including Spotify, Apple, Amazon Music and Podbean

Writing Off the Office? Not Yet, says Knight Frank

James Tait, Head of Birmingham office with Browne Jacobson’s Managing Partner Richard Medd outside the Colmore Building

Amidst all the talk about hybrid working and moving into a world where lawyers are doing over half of their work from home there is still a mighty appetite for high class office accommodation according to the latest report from real estate advisor Knight Frank.

The firm’s Law Firm Report reveals that in Central London the take-up of office space by law firms in 2021 represented a 51% rise on 2020 and an 85% rise on 2019, before the pandemic began. Astonishingly law firms made up 27% of all space taken in the City of London in 2021 and represented around 12% of take-up in Central London. “The level of take-up was the highest for the sector in the last five years and the trend is set to continue,” said Knight Frank.

Leading the way in this expansion last year were Latham & Watkins’ pre-let at 1 Leadenhall, Allen & Overy’s pre-let at 1 & 2 Broadgate, and Travers Smith pre-let at Stonecutter Court. Strikingly in London, US law firms accounted for 42% of all take-up in 2021.

The same trend for what is described as ‘sustainable, amenity-rich offices’ extended into the major regional centres around the UK. In Leeds, for example, law firm take-up amounted to 100,743 sq ft, a 202% rise on 2020, while take-up in Greater Manchester was up 82% to 61,684 sq ft.

One of the high points of regional expansion is DLA Piper’s pre-let at City Square House, ‘a new highly sustainable building close to Leeds City Station, will offer better amenities and will be designed to support the wellbeing and productivity of employees’. Meanwhile Browne Jacobson is relocating its Birmingham office to 103 Colmore Row, the city’s latest flagship office development where it has has signed a ten-year lease for 12,146sq ft on the 15^th floor of this iconic building.

“Law firms remain committed to the office, recognising its role in supporting, facilitating, and portraying business strategy,” says Jennifer Townsend, Partner, Occupier Research at Knight Frank. “Law firms cited difficulties in training and developing junior lawyers, building cultural ties, and developing deeper client relationships in a fully remote working environment. However, law firms are also reimagining the office. Looking at the drivers of leasing transactions in 2021, there were common themes of sustainability, health and wellbeing, and the flight to quality, with occupiers investing in amenity-rich, highly connected spaces. Law firms are creating workplaces with new ways of working in mind, centred around collaboration, innovation, client-centricity and learning and development.”

So there you have it. Covid raised fundamental questions about office life and how we work. Law firms are now sorting out the fruitful from the fanciful in how to take forward this extraordinary transformation.

LEGAL COMMENTS OF THE WEEK

 TOPIC: Issues arising from the Family Court Statistics Quarterly: October to December 2021

 COMMENT BY: Louise Minifie, Senior Associate in the Family team at Thomas Mansfield

The Ministry of Justice have released the Family Court statistics for October to December 2021. There has continued to be an improvement in the average time from petition to decree nisi, down 5 weeks, and decree absolute by 2 weeks. With the introduction of no-fault divorce on 6 April 2022, this should fall even further, to 20 weeks from the date of petition to decree nisi and 26 weeks to decree absolute.

There has been a reduction in the number of divorce petitions issued at the end of 2021. This figure is likely to go up drastically in the coming months as, from my experience, clients are waiting until 6 April so they do not have to blame each other for the breakdown of the marriage.

Unfortunately, the Court continues experiencing the impact of the pandemic in long delays in concluding financial remedy applications. That is why the Judiciary are introducing measures to encourage more efficient conduct in financial remedy proceedings, as well as continuing to promote mediation, arbitration, or private hearings as an alternative to Court proceedings.

Comment by: Hannah Gumbrill-Ward, Solicitor in the Family practice at Winckworth Sherwood

“Across 2021 as a whole, financial remedy applications were up 22% from 2020. This fits with our experience of a nervousness around financial matters in 2020 due to the uncertainty we were all facing. As people adjusted to the new normal through 2021, this nervousness wore off and clients ceased to want to delay dealing with their financial matters indefinitely which is reflected in the statistics.

“What is clear from the statistics is that the pandemic is still having a profound effect on the courts ability to deal with matters promptly, and across the year, it took 41 weeks on average for private law children matters to reach a final order, compared with 32 weeks in 2020. While this data is not yet available for financial remedy cases, anecdotally speaking, we are experiencing extreme delays with listing matters and more last-minute cancellations than ever. Although the courts are trying hard to find solutions to their capacity issues, increasing numbers of clients are taking their proceedings out of the system and opting for private resolutions in order to avoid these extreme delays.”

TOPIC: The Significance of ‘No Fault’ Divorce

COMMENT FROM: Liz Trinder, University of Exeter

“Making couples find fault to get a divorce caused unnecessary conflict and needless pain. It was an empty legal ritual which particularly had a negative impact on children. This reform means people no longer have to “game” the system by making false allegations to secure a quicker divorce. It won’t make divorce easier or undermine marriage. This change means the process will be less traumatic for families and there will no longer be needless acrimony and game-playing.

“People take marriage very seriously, with the decision to split up being painful, difficult and usually very protracted. This legislation is a technical change to how to show evidence when a marriage has irretrievably broken down and will mean the law better reflects the reality of divorce. The current process involves an often painful, and sometimes destructive, legal ritual involving fault that has no obvious benefits for the couple and their families, or society. 

 It is possible the reform will produce a temporary spike in divorce as those currently waiting out a two- and five-year separation period bring their legal divorce forward. The likelihood is that the divorce rate will then revert to normal, just as happened in Scotland following reforms in 2006.”

TOPIC: Judicial Appointments

COMMENT BY: Caroline Jepson, President of CILEX

“CILEX welcomes the Judicial Appointments Commission’s revised approach to statutory consultation as a positive step toward formalising, and making more transparent, this particular aspect of the judicial selection process. We are pleased to see that the Judicial Appointments Commission will be reviewing how the revised approach affects applications for judicial roles from those from non-traditional backgrounds, as one of CILEX’s concerns about statutory consultation is how its confidentiality could provide opportunities for discrimination. This must not be allowed to occur if the judiciary is to become more diverse. With its diverse membership, CILEX is a ready-made solution to the future of judicial diversity and will engage positively with this and all other such initiatives for the public good.”

LAW FIRM MANAGEMENT: INSIGHTS OF THE WEEK

TOPIC: ‘Compliance’ is crucial for the paralegal sector

COMMENT FROM: Jane Robson, Director of compliance and regulation at National Association of Legal Practitioners

Ever since the introduction of the Legal Services Act 2007, regulators of the more conventional arms of the legal services sector (the Bar Standards Board, the SRA, CILEx, etc.) have started listening to the general public, using tools such as surveys, and have updated their regulations to take account of the main concerns, such as having transparent fee information, clear client contracts and a robust and accessible complaints systems.

Meanwhile, the fastest growing arm of the sector – paralegals – have been staking their claims as practitioners in their own right, not just as the assistants of solicitors.

Whilst the increase in professional paralegal practitioners has been welcomed, particularly since the near eradication of legal aid provision in England and Wales since 2013, there has also been an increase in unregulated and, in some cases, unethical, legal services providers setting up shop, who are targeting potentially naïve and susceptible members of the public who are desperate for assistance with their legal matters but cannot afford the cost of the more traditional providers.

So, this makes it all the more important for qualified paralegals with experience, who conduct themselves professionally, to raise themselves above these rogues. This can be achieved by making sure they are 100% transparent and that their methods and practices are in line with a regulated provider.

By taking out membership with a voluntary regulator, they can demonstrate that they are willingly following a prescriptive set of regulations, behaviours and principles. We go further still and expect our members offering direct to client services to hold a ‘Licence to Practice’ and have specialised insurance. This demonstrates that the paralegal stands up to inspection and the client who hires them knows that, should there be any issue with that practitioner, there are means of holding them accountable.

Thus, through compliance, the paralegal practitioner is giving confidence to consumers of legal services that, not only can they receive access to justice at a reasonable cost, they can do so with full confidence that the practitioner they hire is responsible and, most importantly, accountable.

TOPIC: Work-life balance in law firms – Minding the generational gap

COMMENT FROM: Nathan Peart, Managing Director, Associate Practice Group, Major, Lindsey & Africa

As firms make their return to work, the term ‘work-life balance’ has probably never been parroted more than in the last year, but how can it be fulfilled when the meaning is different for each generation?

Differing attitudes about the future of work across generations are stark in a highly pressurised environment such as a law firm. The crux of the issue comes down to perceptions of what work-life balance is. For ‘boomers’, stability of work and face-time is highly valued because of the experience of their parents working in the difficult post-war years, while for Gen-X there is still an expectation that flexibility has to be earned. Millennials want flexibility about where and when they work. Meanwhile for Gen-Z, who are just starting their careers, there is an expectation that the workplace should be mobile to work around them.

With a talent war raging, the incoming Gen-Z may come to expect wellness packages and extra perks. Gen-X, who are used to seeing flexible working as an earned privilege, may revel in the extra time spent at home with their families, but miss the opportunity to mentor and develop junior colleagues.

Ultimately, as we come to realise that the ‘balance’ part of work means something different to everyone, firms will have to navigate flexible working with care and great attention. The hybrid working model should offer everyone the chance to win in some way, and will go some distance in closing these generational divides that were prominent pre-pandemic.

TOPIC: ADDRESSING THE MENAPAUSE TABOO IN LAW FIRMS

COMMENT FROM: Robbie Weston, Executive Director, Howden Employee Benefits & Wellbeing

Menopause remains a taboo subject for many law firms. But as more women talk openly about their own experiences, there is a definite movement to normalise the subject.

Put simply, a lack of support for women experiencing the menopause could result in a loss of female talent and experience. A Law Society report highlights that the number of women aged between 36-40 years who hold a practising certificate reduces by 57% when compared with the number of women aged between 51-55 years with a practising certificate. The corresponding reduction for men is only 18%. The report doesn’t reveal the cause of their departure, but it is not unreasonable to draw a conclusion between more women leaving and the menopause.

Though menopause is a natural part of life, it can have various impacts that often start months or years beforehand and last up to four years from its onset and have a variety of repercussions ranging from mental health issues to problems with memory and concentration. Its symptoms, such as hot flushes, can cause embarrassment or leave women feeling less confident. One report found that, as a result, women who are going through the menopause between the ages of 50 and 55 take an average of two months off work because of their symptoms, while while women who experience early menopause (before they reach 45) take four months off.

For employers, this can mean significant increases in sickness absence rates. For individuals affected, it can mean they miss out on £10,000 – £20,000 in earnings and pension contributions.¹

With women now comprising over 60% of new entrants to the legal profession, it’s important for firms to normalise discussions around menopause and offer support. Making adjustments to the working environment can improve health and lessen some menopause symptoms. So putting policies in place to support changing needs during different life stages, and specific support around menopause, can have a powerful impact. Managers may also need support to meet individual employee needs.

Talking openly, positively and respectfully about the menopause can show commitment to employees that the firm has menopause on its agenda so that those experiencing the menopause feel comfortable asking for help to manage their symptoms.

POST-SCRIPT: The effect of the menopause on lawyers’ clients

Meanwhile, a recent nationwide survey[1] by the Family Law Menopause Project has revealed that 81% of family lawyers are failing to understand or recognise the impact of menopause and perimenopause during divorce and separation. The survey of family law professionals and the judiciary also found that 65% of respondents agreed that women are potentially disadvantaged in terms of financial settlements by a lack of understanding within family law to recognise or think about the impact menopause and perimenopause might be having on the ability of their female clients to work full-time or even part-time.

The data supports one of the key aims of the Family Law Menopause Project which is to raise awareness amongst the family law community of the impact of menopause so that family lawyers can ensure that their advice leads to the fairest financial outcome for female clients as they approach retirement. It is suggested that the impact of menopause on women’s ability to work is not taken into account when financial settlements are drawn up. “While symptoms will vary, 1 in 4 women will experience severe debilitating symptoms while over 60% of women will experience symptoms resulting in behavioural changes,” says the Project.

APPOINTMENTS OF THE WEEK  

Cross-border (England/Scotland) firm Shakespeare Martineau  has appointed dual-qualified Nicky Grant as a legal director to its commercial real estate team in Edinburgh.

Formerly with Raeburn Christie Clark & Wallace and then Dickson Minto, Grant completed his property-focused traineeship in Aberdeen and obtained dual qualification in 2018. His experience covers all areas of commercial property, including acting on utilities and energy projects, corporate assist work, and working on behalf of healthcare providers and real estate finance.

“As businesses increasingly expand their operations across the UK, we are frequently asked to advise our clients on Scottish and cross-border transactions,” said Amal Kaur, partner at Shakespeare Martineau (Glasgow) LLP, “We continue to provide tailored Scots law services to our clients and are investing internally in quality training to expand our resources.”

Grant’s appointment comes after Shakespeare Martineau announced it is set to take on its first ever Scottish trainees.

Ropes & Gray has appointed Alexandra Chauvin as counsel based in its asset management team in London which represents both sponsors and investors across a diverse range of private fund formation work.

Formerly with Kirkland & Ellis, Chauvin advises on the structuring, negotiation and documentation of complex transactions in the secondary market, including structured and synthetic secondaries, traditional portfolio sales, stapled offerings and recapitalisations.

 “We are continuing to see a growing demand for our private funds work, across both the US and Europe, so I’m delighted that Alex is joining us,” said Bryan Chegwidden, global head of the firm’s asset management group. “Her experience and expertise as a focused secondaries lawyer will be an invaluable addition to our investment funds team and will further strengthen our transatlantic offering, as we respond to client demand.”

EVENTS

We hope that you have enjoyed this edition of the LEGAL DIARY – we have now crossed the boundary into our centenary (having overlooked the first four editions in our previous counting!).

If so, do please relay on to friends and colleagues and also continue sending your Diary stories, insights and comment to

fennell.edward@yahoo.com