Edward Fennell’s Legal Diary – Edition 45

February 12, 2021

Friday 12 February 2021: Edition 45

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

SHORT THOUGHT FOR THE WEEK

– When law and the media collide

Newspapers thrive on sensationalism – that’s a statement of the obvious and easily accounts for why outlets such as the Mail are keen to publish private and revealing correspondence linked to the Royals. Where the line should be drawn though between legitimate public interest and abusive private prurience is always subject to debate. However, yesterday’s judgment in favour of the daughter of the Markle family could not have been clearer. As Steven Heffer, Head of Media & Privacy at Collyer Bristow, commented last night, “The judgment is a major victory for the Duchess. The Judge has decided the Daily Mail has no prospect of defending her privacy and copyright claims and given summary judgment.“

For good or ill the case is bound to have a ripple effect . Among other things it has meant that, as Heffer points out, “Allegations that Meghan had provided private information to the authors of a controversial book,” cannot be tested in court. The consequence may well be that newspapers – for a time at least – will rein in some of their more cavalier reporting. Yet as the row this morning between Mark Stevens of Howard Kennedy and Dominic Crossley of Payne Hicks Beach on BBC Radio 4’s TODAY programme demonstrated, there is still plenty to argue about over the ruling. (Stevens suggesting that such matters will now be aired in the USA rather than the UK).

Interestingly it is expected that coincidentally this afternoon we shall also have the outcome of the long-running Kids Company case. That too might have some important signals for how the media should conduct itself.

The Legal Diarist

In this week’s edition

THE LEGAL DIARY OF THE WEEK

– Need to Think About It

– Wed or Return

– Pensioned Coff?

– French Leave of Your Senses

+ LEGAL COMMENT OF THE WEEK – Grenfell grinds on

+LEGAL ALERT OF THE WEEK – Don’t be phished while you’re fishing

+ LEGAL REPORT OF THE WEEK – Cybersecurity news leaks out

**+ LEGAL BOOK OF THE WEEK – A Guide to Conducting Internal Investigations**

+ UPCOMING WEBINARS, BLOGS OF THE WEEK

LEGAL DIARY OF THE WEEK

NEED TO THINK ABOUT IT

Top decision-makers in business now want advice and thought-leadership from professional service advisors rather than from their look-alike immediate colleagues says research from strategic B2B thought leadership specialists, Grist.

In short, as business faces unprecedented challenges experts are now back in demand. And that includes lawyers. According to the report industry ‘peers’ have completely dropped out of the top three sources of advice for the C-suite, with just 33% of C-suite respondents valuing their colleagues’ opinions. This is down from 48% in 2018. Instead they have been replaced by independent industry experts as the most valued source of insight and guidance.

Also highly significant is that business thinking has become much more short-term. With industries crashing by the day the challenge is survival over the next few moths rather than where they might be in five years time. As the report says, “The attention of the C-suite has now shifted to the near term with half (49%) wanting insight into the near future – the next three to 12 months – compared to just one in five (22%) seeking content about the mid or long-term future – one year and beyond.”

So while it might have been heartlessly inappropriate for him to frame it in such terms, Lord Falconer was not wrong to point out that Covid is a ‘gift that keeps on giving’ for City lawyers.

WED OR RETURN

With Valentine’s Day coming up on Sunday – just mentioned that in case you’ve lost all track of time in the current wasteland – here’s a cure for anyone craving romance.

“We may see a surge in the number of marriage proposals being made as couples ‘pop the question’,” says DAS Law‘s Nicole Rogers. “But while this is a lovely notion, it doesn’t always work out as hoped, with the reality of a broken engagement potentially difficult to deal with, not to mention further unforeseen implications.”

Top of the list is the question of who gets the ring in the event of the wedding not coming off.

“In broad terms, an engagement ring is given as an ‘absolute gift’ and, as such, belongs to the person to whom it was given,” Rogers says. “The law takes no account of which partner calls off the engagement so, regardless of who broke off the relationship, the ring does not have to be given back.”

Gulp! – so no more of those tearful ‘handing back the ring’ scenes in TV dramas?

Not so fast. There is an answer. “If the ring is given on the condition, stated or implied, that it should be returned if the marriage does not go ahead, the ring would have to be given back. However in practical terms, unless you’ve taken the romantic step of getting that in writing, then it may not be as simple as that.”

But in the era of the pre-nup that surely cannot be a problem. Hand-over the ‘sign on received’ form (and a pen) at the same time as the ring. As a sweetener say they can keep the pen.

PENSIONED COFF?

This is about as exciting as it gets, I’m afraid

In these days of WFH you don’t have to be a pensioner to take time off for a chat and a coffee. In an imaginative move – which maybe embodies what we’re all going thorugh – CMS has set up its CMS Pensions Coffee Corner in what is called ‘an informal virtual networking initiative connecting pensions specialists with their peers in the industry’.

The network has been established, as they put it, to ‘fill the void for pensions professionals who are missing meeting new people and having conversations at conferences and seminars’. Ah yes, all those conferences and seminars – how much we miss them and look back at them as a time of rosy romance (ring not necessarily included).

So the Coffee Corner is something to make up for it. Well, sort of. Scores of non-partner/non-principal professionals working in the pensions industry are now switching off – admittedly only for half an hour a fortnight – to participate in a Coffer Corner video call with other industry members. “As well as leading to some interesting conversations, participants are also welcoming the wellbeing and mental health benefits of meeting new contacts at a time when social interaction is generally restricted,” says CMS.

The rules are simple. You have to register in pairs – whether from the same or different firms doesn’t matter – and you have to commit to turn up regularly – so no bunking off for virtual tea-dances instead. But the interesting thing is that the organizers then introduce you to another pair of individuals. “It is then over to you to arrange a time to chat over a virtual coffee by phone or video conference at any point during that two week period.” Whether you actually have to drink coffee – real or decaff – is not clear.

If you want to find out more than email CMSPensionsCoffee@cms-cmno.

Or Please click here to register.

FRENCH LEAVE OF YOUR SENSES

Is this the new PR team at Gide? Edelman to the right

In these hazy times, when most of one’s life is lived on a screen, it is forgivable to muddle up the real and the illusory.

Hence, as a keen devotee of the French flic series Spiral/Engrenages, the LegalDiarist was briefly confused on receiving an email from M. Edelman, the wily, worldly and deeply cynical Parisian avocat about a new Executive team at the firm Gide. Was Edelman moving his practice from the criminal to the commercial? the LegalDiarist wondered briefly. Then the euro dropped that this was another Edelman entirely, doing it with elan, in the Gide PR department – maybe the avocat’s cousin? NO, NO of course not!! One’s in a TV programme and the other is in real life. Yes, but which is which?

LEGAL COMMENT OF THE WEEK – GRENFELL GRINDS ON

The building safety scandal still awaits proper resolution as the latest support announced by the government for the replacement of unsafe cladding is inadequate, says Tom Pemberton of Goodman Derrick

Nearly four years after the Grenfell Tower disaster, it is entirely understandable that a number of the government’s own backbenchers have reacted with dismay to the gaps which are left by Robert Jenrick’s statement announcing government support for those whose lives continue to be blighted by living in buildings which are unsafe and unsaleable. While the new funding of £3.5 billion is a welcome supplement to the woefully inadequate Building Safety Fund of £1.6 billion, it will still leave a huge shortfall on the cost of making buildings safe, which is likely to exceed £15 billion.

Like the Building Safety Fund, the new funding will only cover the cost of replacing external cladding systems which comprise unsafe panels made of aluminium composite material. It will not cover the cost of other essential work to make buildings safe, for example to replace faulty smoke ventilation systems or combustible insulation inside the external wall, the widespread presence of which has also become clear after the Grenfell Tower disaster. Furthermore, the new funding will only apply to buildings over 18 metres high. While Robert Jenrick announced that that the government will also develop a long-term low-interest loan scheme which will cover cladding remediation (but again not other essential work) on buildings of between four and six storeys, and stated that no leaseholder will ever have to pay more than £50 a month towards this, this will be of limited comfort to those who entered into leases of buildings which they were entitled to assume were safe.

The tax which Robert Jenrick announced will be levied on housing developers in order to finance the scheme for buildings over 18 metres high will no doubt be passed on in large measure to future purchasers of their homes. Many will no doubt question the fairness of this, particularly if (as appears to be the government’s intention) the new tax will fall on those developers who have never allowed dangerous cladding to be installed on their watch, as well as those who have.

The latest scheme is by no means the last word. Like other firms, we expect to continue to be kept busy in advising affected clients until a solution is found to the building safety crisis which fairly and comprehensively addresses needs and fairly allocates the burden.

Tom Pemberton is Partner in Goodman Derrick LLP’s construction team.

**LEGAL ALERT OF THE WEEK – Don’t be phished while you’re fishing**

Lawyers are prime targets for hackers whether at work or not so look out for your mobile devices advises Hank Schless of Lookout

Due to the developments of smartphones and tablet technologies law firm staff can do everything they used to do in an office from wherever they are. However, such mobile and tablet use also introduces a number of risks to law firms as they are a prime target for cybercriminals. Mobile devices are preferred targets of bad actors because they are easy to compromise if left unsecured. They are also targetted as people are accustomed to using them wherever they are. This means they are not protected by the security solutions installed in your office space. With cloud productivity suites like Office 365 and Google Workspace, legal staff can access and collaborate on sensitive data on the go. This could put case documentation at risk and cause a violation of lawyer-client privilege if any of those docs are leaked.

As we trust these devices, we also interact with message content a lot more quickly – and this may include phishing links. The apps we install for personal use, while they may seem harmless, could put your law firm out of compliance or give cybercriminals an additional avenue to compromise your data. One of the first things any law firm should do to combat mobile risk is to ensure their ongoing IT/security training incorporates best practices for securing mobile devices.

If you’ve gone through any sort of corporate phishing training, you’re probably familiar with how to look for tell-tale signs of a malicious email. For instance: checking the senders email address matches the organisation they claim to be from. Unfortunately, those giveaways do not exist on mobile as the mobile user experience is designed for a smaller screen. It also doesn’t help that you can be phished in countless ways because any app that can send a message is capable of delivering a phishing link.

Similarly, ensure your users understand that mobile apps that may look harmful from a personal standpoint, can absolutely add risk to your firm. Many of the permissions and data access controls in an app could violate your organization’s governance, risk, and compliance requirements. User education is critical to ensuring you stay on top of it.”

Hank Schless, senior manager of security solutions at Lookout

LEGAL REPORT OF THE WEEK

– Cybersecurity news leaks out

On a similar theme, a new survey carried out by the USA’s Association of Corporate Counsel (ACC), in partnership with Exterro, analysed data from early 1,000 Chief Legal Officers (CLOs) across 21 industries and 44 countries to discover that for the first time, cybersecurity has overtaken compliance as the most important issue facing business as ranked by company CLOs. (Wow! You might say)

The problem, unsurprisingly, goes back to our old friend remote-working aka WFH. Basically this now represents a major threat to cybersecurity which makes it an increasing area of responsibility for corporate in-house legal teams.

“As people continue working from home for the foreseeable future, CLOs are increasingly being asked to assume responsibility for their company’s cybersecurity efforts,” said Robin Grossfeld, Senior Vice President, Global Initiatives at ACC. “This is presenting a new challenge for many in-house legal teams, and one that is helping to redefine their day-to-day corporate roles.”

Meanwhile a separate ACC Cybersecurity Study showed that almost one in five organisations now have an in-house lawyer dedicated completely to cybersecurity – that’s up by a half over the past two years. In short it’s becoming an epidemic.

The full 2021 CLO survey report includes additional insights and is available on ACC’s 2021 CLO Survey page.

Legal Book of the Week

– A Guide to Conducting Internal Investigations

Just out from Eversheds Sutherland, ‘A Guide to Conducting Internal Investigations’is the first guide for companies on how to protect their reputations during investigations.

Written by Jake McQuitty, a Partner in Eversheds Sutherland’s Litigation & Dispute Management group, the book draws on over twenty years of experience undertaking investigations for clients and advising on external investigations by authorities (McQuitty’s experience includes four years as head of investigations and enforcement for a global bank).

“Internal investigations are a daunting prospect for companies, and if badly managed can leave companies bearing the brunt of irreparable damage to staff morale, with a corporate reputation tarnished and a loss of customer confidence,” says McQuitty. “Companies must get organised and fast in the event they need to undertake a major investigation.

McQuitty went on to observe thatthe book is a long overdue blueprint for businesses which need to investigate incidents in their organisation, often in the face of scrutiny from external authorities. “It offers practical guidance on how companies should prepare and organise themselves in advance of, and when undertaking, an internal investigation,” he says. “This guide should be essential reading for any professional tasked with investigating issues in their organisation, particularly colleagues in legal, auditing, compliance, risk and HR roles.”

Included in the topics discussed are cooperation with authorities, how to interact with staff being investigated, and how to manage corporate communications and PR risks. All it lacks is a letter from the Duchess of Sussex on the latter.

A Guide to Conducting Internal Investigations is published today by Bloomsbury Professional.

UPCOMING WEBINARS, WEBCASTS, BLOGS AND PODCASTS

Lockdown listening from Collyer Bristow The Fine Art of Probate: A new podcast series

NOW AVAILABLE the first episode in the new podcast series, The Fine Art of Probate, from Collyer Bristow’s Private Wealth team. In this series, a selection of Collyer Bristow lawyers are joined by special guests from the world of Art and Culture, to discuss a wide variety of topics relating to probate in English law. In this first episode, Private Wealth Partner, James Cook, is joined by Charles Cochrane of Cochrane Adams Fine Art. Together they discuss the increasingly popular Acceptance in Lieu scheme in probate matters; a government scheme enabling those who have an Inheritance Tax obligation to pay the tax by transferring important cultural, scientific or historic objects and archives to the nation. Click here to have a listen Running time: 36 mins

For more information on The Acceptance in Lieu Scheme, or other probate matters, please contact James Cook. james.cook@collyerbristow.com

We hope that you’ve found this week’s LEGAL DIARY interesting. If so, please relay on to colleagues.

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