Edward Fennell’s Legal Diary – Edition 44

February 5, 2021

Friday 5 February 2021 Edition 44

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

SHORT THOUGHT FOR THE WEEK

Still Disruptive after all these years?

‘Disruptor’, you will recall, was a very cool thing to be. Disruptive technology, disruptor law firms, ‘disruptive’ ways of delivering services. We welcomed them all with open arms – they were the future. Little did we appreciate that the biggest disruptor of all – short of world war – was just about to hit us.

But without question the grand disruptor Covid is very much changing our way of working including, not least, the legal industry. Suzy O’Keefe, now joining international recruiter Macrae Inc. as Managing Director in London (see story below), asks a number of pertinent questions about the recruitment market. With a talent pool that’s tighter than ever in certain high-demand practice areas including private equity and restructuring, where are firms finding lateral partners with the requisite skills, and what does it take to sign them? How has the pandemic shifted the perspectives of high-performing female partners, in particular, with children at home?

‘Never waste a good crisis’ is always wise advice. Or indeed a good Disruption. It will be interesting to see how law firms follow it.

The LegalDiarist

In this week’s edition

+ Law Diary of the Week

– For All the Good it’s Done

– Better than Expected

– Fewer reach for the Bar

– Your Crash or Mine?

– Channel Crossing

+ LEGAL ANALYSIS OF THE WEEK :

Vaccinating children – Who decides?

+ LEGAL CAMPAIGN OF THE WEEK

Asbestos – the wider victims

+ APPOINTMENTS OF THE WEEK

+ THE BEST LEGAL WEBINARS AND BLOGS OF THE WEEK

LEGAL DIARY OF THE WEEK

For All the Good it’s Done

Legal pro bono continues to thrive despite the prevailing difficulties reportsThe 2020 TrustLaw Index of Pro Bono published by the Thomson Reuters Foundation. Charities, non-profit organisations, social enterprises and individuals are continuing to benefit from the time and expertise offered by law firms. According to the Foundation a staggering four million hours of legal pro bono were completed globally last year with lawyers each dedicating an average of 26.3 hours.

“In an era where three global crises converge – health, economic and environmental – maintaining and growing the pro bono support of leading law firms and corporate legal departments around the world has never been more critical for NGOs and social enterprises on the frontlines of social change,” said Antonio Zappulla, CEO of the Thomson Reuters Foundation.

“The Thomson Reuters Foundation has long championed the practice of pro bono; scaling and developing the sector has been core to the work of TrustLaw, our pro bono legal network – now the largest in the world. We hope this index provides law firms with the information they need to create the right infrastructure for robust and sustainable pro bono practices and to achieve the greatest impact from their pro bono work.”

According to Carolina Henriquez-Schmitz, Director of TrustLaw, Thomson Reuters Foundation the overwhelming majority of lawyers (96%) state that they perform pro bono in order to ‘give back to their community’. “This has certainly been TrustLaw’s experience working with thousands of lawyers across the globe and over the last decade, who have been continuously generous with their skills, expertise and resources,” she said.

The challenges tackled in 2020 ranged from access to justice, economic development and microfinance to human rights, women’s rights, the environment and climate change.

Better than Expected

Covid is proving a massive disruptor but, as ever, it is a glass ‘half full/half empty’ scenario. According to a new survey from MHA (a network of independent accountancy firms), ‘Almost 50% of UK legal firms reported either ‘no’ or a ‘minor’ impact on their fee income as a result of Covid-19 in December 2020, a dramatic improvement from May 2020 when this was just 14% of firms.’

In December 2020, only 9% of law firms in the UK said the pandemic was still having a major impact on fees, down from 38% in May 2020. This seems to reflect most people’s lives – there was an initial enormous judder but since the Summer things have normalised in many respects despite the second wave and the shuttering of many businesses. Although a majority of law firms still reported a decrease in fee income in December 2020, 91% made a profit since the first lockdown in March 2020. Of those profit-making firms, 18% reported profit growth of over 20% between March and December 2020. In addition, the percentage of those reporting drops in fee income of over 20% fell from 50% in May 2020 to 9% in December 2020.

Karen Hain, Head of Professional Practices at MHA, said: “These results demonstrate that legal firms across the UK have been able to adapt their commercial operations in the second half of 2020, and overcome the challenges brought by Covid-19. The wildly pessimistic expectations many of us had at the beginning of the first lockdown have thankfully not come to pass and profits and legal fees have now stabilised and even increased for many firms.

“Even though law firms generated lower fee income since March 2020, many made immediate decisions to reduce expenditure, generating additional profits. Government support also played a role. We reported in May 2020 that 87% of firms utilised the Coronavirus Job Retention Scheme and the furlough payments reduced outgoings and led to better profits than expected.”

So things looking up? Possibly.

Fewer reach for the Bar

Yes, but don’t get too complacent. Returning to the theme of ‘disruption’, as widely reported new figures from the Bar Standards Board show a 35% decline in pupillage registrations in 2020.

“The Bar Council is disappointed but not surprised to see that there was a large drop in the number of pupils registered in 2020, “ said Derek Sweeting QC,Chair of the Bar Council,

“Throughout this pandemic, the profession has made huge efforts to ensure that existing pupillages and offers of pupillage were honoured, and to increase the number of pupillages recruited going forward. Most notably, the criminal pupillage scheme saw eight commercial sets fund criminal pupillages that would not have otherwise been offered during this recruitment round. However, such acts of generosity are unlikely to be sufficient to make up the shortfall.

“Even if pupillage numbers do recover to previous levels, the number of cancelled recruitment processes and deferred pupillages from 2020 are likely to leave a persisting “pandemic” gap at a time when legal needs are likely to increase. This will disproportionally affect publicly funded work and highlights the need for a thorough review of the legal aid system to allow to ensure recruitment into this vital part of the justice system.”

In a normal market, less availability of skills which are in high demand should lead to greater payment. But of course the criminal bat is hardly a normal market.

Your Crash or Mine?

Now here’s a good example of a disruptor. First4Lawyers, a seven-time winner at the Personal Injury Awards and the UK’s largest independent legal marketing collective, has just announced plans to launch its own law firm. The idea is that it will support injured people who face being unrepresented in claims arising from road traffic accidents (RTAs) after the whiplash reforms are introduced in May.

First4InjuryClaims will be exclusively an RTA claims outfit. Currently up to 10,000 of the enquiries received each year by First4Lawyers relate to RTAs but from now on these be handled by the law firm.

The recent reforms – which have been under discussion for many years – mean that people with whiplash-type injuries lasting for up to two years and worth less than £5,000 will not be able to recover the cost of using a lawyer from the negligent driver’s insurer. Basically this was in order to deter what was believed to be an excessive number of claims (some of which had little merit). However, says First4Lawyers, “The difficulties with navigating the new online ‘litigant in person’ portal, as well as the experience of financial mis-selling claims, indicate that many injured people will likely still want help. But with compensation slashed under the reforms, the margins will be too small for law firms to carry on in the field unless they can handle huge volumes.”

Yet, the firm points out, ‘innocent people will still be injured by the negligence of drivers’. Hence the need for the new firm should be ready to begin work in early summer. With lockdown over by then (one hopes) there will be plenty of scope for thousands of rusty drivers to resume their crashing habit.

Channel Crossing

They might not have many jabs but they do now have Addleshaw Goddard

One of the great mysteries among corporate law firms was why Addleshaw Goddard had no offices in mainland Europe. They had offices in Asia and the Middle East but venturing across the Channel was a step too far. But now that has changed. In recent months they have opened in Germany and France alike. Maybe it is the effect of that other great Disruptor, Brexit.

“Clients are increasingly telling us that their preference is for an integrated cross-border capability,” said John Joyce, Addleshaw Goddard Managing Partner. “Opening an office in the two largest Eurozone economies in quick succession is an important milestone in our plan to build over the coming years a meaningful presence in the major European markets to better service global and UK corporates. Our German office has quickly exceeded expectations and Paris is a unique opportunity to bring a second profitable, market-leading practice to the firm in another key European centre identified by clients.”

Well, better late than never.

LEGAL ANALYSIS OF THE WEEK

VACCINATING CHILDREN: WHO DECIDES?

Debates about the pros and cons of vaccination for children have gone on for years. Now, due to Covid, the implications of anti-vaxing are becoming more stark. So who has the right to decide especially when parents have split views – and what rights do the children themselves have? Sarah Wood-Heath of Clarke Willmott discusses the issues.

COVID-19 vaccinations are not yet being offered to children but specialist family lawyers are getting increasing enquiries from separated parents about what to do should disagreements arise over possible future vaccinations.

”Discussions should be had around the issue of consent to vaccinations for children at the earliest opportunity,” says Sarah Wood-Heath partner in the family law team of Clarke Willmott.

“We are hearing of some cases where those with parental responsibility are disagreeing over whether the child will receive the vaccination. It is common practice that, in the event of a dispute, a medical professional will not administer a vaccination without an order of the Court.

“The paramount consideration of the Court, when determining such applications, is the welfare of the child. In making these decisions, the Courts are required to undertake a balancing exercise, taking into account all available evidence presented to them.

“The court performed this balancing exercise in the recent case of M v H and others ([2020] EWFC 93) which concerned an application by the father of two children that they be vaccinated in accordance with the NHS vaccination schedule. The mother of the children opposed this application and presented arguments to the court against these vaccinations being in the best interests of the children. Mr Justice MacDonald concluded that it was in the best interests of the children to be vaccinated in this case, citing that the overwhelming medical opinion is that it is in the best interests of otherwise healthy children to be vaccinated in accordance with the schedule recommended by Public Health England.

“In this case, Mr Justice MacDonald elected to defer making a decision in respect of a future Covid-19 vaccination on the basis that such a decision would be premature given the “early stage reached with respect to the COVID-19 vaccination programme”. However, he did state that “it is very difficult to foresee a situation in which a vaccination against COVID-19 approved for use in children would not be endorsed by the court as being in a child’s best interests”, save for credible medical evidence to the contrary such as by peer reviewed research evidence.”

However, it is not always down to the parents to make a final decision.

“Whilst most persons aged 18 or over are presumed to have the capacity to make their own decisions regarding medical treatment, the ability of children to make such decisions depends firstly upon their age. Anyone under the age of 18 is defined as a child for these purposes,” said Sarah.

“For children aged 16 and 17, there is a presumption that they have the capacity to consent to receipt of medical treatment, while for children under 16 there is no such presumption. They are instead required to demonstrate that they have the capacity to consent to receipt of medical treatment. This capacity to consent is referred to as ‘Gillick competency’.

“Whether a child is Gillick competent is assessed on an individual basis taking into account criteria such as the age of the child, the child’s understanding of the treatment (including benefits and risks) and their ability to explain their reasoning regarding the treatment. If judged to be Gillick competent, the child can make the decision for themselves.

“For children aged under 16 who are not Gillick competent, those with parental responsibility will make decisions regarding the medical treatment of the child. As such, it would be the decision of those with parental responsibility whether or not the child receives the vaccination. However, should a medical professional consider that the decision of those with parental responsibility is not in the best interests of the child, then an application can be made to the court for an order to determine whether treatment proceeds.”

For more information visit www.clarkewillmott.com to contact Sarah Wood-Heath online or call 0800 422 0123.

LEGAL CAMPAIGN OF THE WEEK

Asbestos – the wider victims

It wasn’t only the people working directly with asbestos who had their health ruined, says Lorna Webster, a partner and asbestos law expert at Hodge Jones and Allen Solicitors. Other family members too – especially those who had intimate contact – were also at risk.

Webster is now calling for greater awareness around the risks and, in particular, the unfair treatment of women who did not work with asbestos directly, but whose health has been dramatically impacted.

“Many people don’t think of the secondary victims of asbestos exposure,” she says. “This is an insidious and pervasive problem that just isn’t getting enough attention. Although cases of mesothelioma amongst women continue to be diagnosed, there are still many barriers to successfully claiming in a secondary exposure matter. Relevant public insurance has to be identified, which often doesn’t exist. And there is no “Plan B” for a woman to recover compensation if her husband’s former employers cannot be pursued and the relevant insurers cannot be identified. Whilst the Diffuse Mesothelioma Payment Scheme makes payment to mesothelioma victims if the victim’s former own employer is no longer trading and the relevant insurance cannot be identified, it does not extend to cover women who have developed mesothelioma through washing their husband’s asbestos contaminated work clothes.

“And there is the problem of the “1965 rule”. How is it morally right that one wife who washed her husband’s contaminated work clothing prior to 1965 cannot bring a compensation claim, but another wife who washed similar clothing after 1965 can? The woman is the innocent victim and yet the law fails her if her husband worked with asbestos at the wrong time. Even the woman who washed her husband’s work clothing after 1965 faces huge hurdles in overcoming the insurance requirements to bring a compensation claim. It is often the case that these women are left with no assistance from the law and no compensation for their asbestos condition.

“Women are victims of a broken and backward system and it has to change – discrimination on these grounds is completely unacceptable. They are being punished and families torn apart simply because they helped a loved one by doing the laundry.”

APPOINTMENTS OF THE WEEK

Suzy O’Keefe is joining Macrae Inc. the international legal recruitment agency as Managing Director in London. She was previously with Major, Lindsey & Africa, where as a Managing Director she specialized in placing candidates at law firms in London, Europe and the Middle East. A former corporate lawyer, she earned her law degree from The University of Law in Surrey.

Henrietta Mason (above) a specialist in trust and probate disputes and former partner at Penningtons Manches Cooper, has joined Farrer & Co’s Contentious Trusts and Estates team. Henrietta joins as a Consultant and will be leading on the team’s internal and external technical knowledge and development needs and its strategic vision for the future. As co-author of the leading legal textbook on Wills and Probate ‘Probate Disputes and Remedies’, Mason has developed a formidable reputation as a go-to expert in this field.

Georg Scherpf has been recruited by Clyde & Co as a Counsel and Head of International Arbitration in its Hamburg office. Scherpf joins for German firm Luther and is a German-qualified Rechtsanwalt as well as an English-qualified solicitor. He practises as counsel and arbitrator in disputes, with extensive experience in a broad range of issues and sectors including international trade, corporate disputes, energy and construction disputes. He has represented clients in commercial arbitrations under most major institutional rules