Edward Fennell’s Legal Diary – Edition 43

Friday 29 January 2021 Edition 43

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

SHORT THOUGHT FOR THE WEEK – I’M OK, YOU’RE NOT OK?

For all its early attractions of Working from Home it looks as if its charms are starting to pall – at least for a lot of lawyers. As reported this week, over a third of requests for support made to LawCare (the mental health charity), have related to the pandemic,. Alongside this there are reports of toxic attitudes developing in some firms. But maybe this is not surprising as a number of the big names – and no doubt many other smaller ones – begin to lay off both lawyers and support staff. Certainly it is easy to understand how stressful it would feel to be stuck at home while unseeable top people are making plans for cuts.

In recent years the legal sector claims to have made big strides over mental health. Just how substantial these improvements actually have been is open to question. But if attitudes have genuinely changed and structures are now in place – including workplace mental health first aiders – then now is the time for them to rise to this new and unforeseen challenge.

The LegalDiarist

In this week’s edition

LEGAL DIARY OF THE WEEK

– Jobs galore?

– Co-starring Eversheds Sutherland and Farrer & Co

– Sterling student work being done by Ashurst

– Mentoring is the Key

+ LEGAL INSIGHT OF THE WEEK – COUNTERFEITING COVID

+LEGAL INSIGHT OF THE WEEK – WHEN FOOTBALL MANAGERS ARE SHOWN THE RED CARD

+ LEGAL APPOINTMENT OF THE WEEK

+ LEGAL LECTURE OF THE WEEK

– IS THERE A LEVEL PLAYING FIELD AT INQUESTS?

LEGAL DIARY OF THE WEEK

Jobs galore?

With plenty of law firms’ partners playing musical chairs right now and even the largest firms negotiating their way through scores of departures the figures published this week in the Robert Walters annual Salary Survey 2021are striking.

Overall it seems 30% of professional services firms are concerned about skills shortages arising from a fall in graduates entering the jobs market and Covid & Brexit-related travel restrictions

Meanwhile more than a third (34%) of employees in professional services – banking & financial services, accounting & finance, legal, technology – look likely to receive a pay increase this year, ‘illustrating the economic value of the sector during the crisis’.

As it happens lawyers seem not to be doing quite so well as many other professional groups within this rather complicated picture. Nonetheless the situation is positive by and large, at least as far as in-house opportunities are concerned.

According to Robert Walters the average retention rate of legal professionals – presumably in-house – is a mere 1.4 years (which sounds rather low to the LegalDiarist – but they’re the experts). And almost three-quarters have stated that they will be seeking a job role change this year – with 57% confident about job opportunities in their sector. Meanwhile over 40% are expecting a pay rise.

The conclusion is that for those currently leaving private practice, maybe not of their own choice, there should be opportunities a plenty in the wider world – provided that you can make the cultural transition.

Co-starring Eversheds Sutherland and Farrer & Co

Here’s a major film story about Sutherland and Farrer but not, in this case featuring either Donald or Mia. In fact it is Eversheds Sutherland and Farrer & Co who have the starring roles in the arrival of a bright new presence on the UK’s film production stage following the announcement a state-of-the-art film and creative media complex in the Thames Valley on land owned by Reading University.

Directing the deal wereGlynne Stanfield, Partner and Head of International Education and Elizabeth Fevyer, Legal Director from Eversheds Sutherland’s while the Farrer’s team was led by Mark Gauguier, Partner and Head of Commercial Property and Jon Haley, Partner and Head of Corporate.

The agreement between the University of Reading and affiliates of Commonwealth Real Estate LP (a film studios investor based in Los Angeles) is said to represent a significant investment into the local area and into British filmmaking. The film  studios, which will be known as Shinfield Studios, will bring major Hollywood film productions to the UK, creating around 3,000 new jobs. The scheme also represents a significant investment in the British film and creative industries and is expected to create between £500-600m of annual inward investment to the UK.  said: 

“We are delighted that this agreement has been reached, which will bring welcome significant Hollywood investment, creativity and job opportunities to Reading, Wokingham and the wider Thames Valley,” said Professor Robert Van de Noort, Vice-Chancellor of the University of Reading, “It is a credit to the hard work and determination of everyone involved [ by which he presumably meant the lawyers as much as anyone else] to have concluded a transaction while negotiating through challenging restrictions on movement and travel.”

MeanwhileAdam Fisher, Commonwealth Founder and Chief Investment Officer, said “We are very excited about the prospect of investing in the UK creative industries as one of the most vibrant markets in the world. We look forward to building partnerships across Wokingham and Reading to make this project a resounding success. Our ambitions for the new studio will be of real benefit to the local economy and the UK as a whole.”

Let’s just hope cinemas are open and operating again by the time the building work is complete.  

 Sterling student work being done by Ashurst

And here’s another example of collaboration between a University and a law firm to warm the cockles of even the hardest hearted lawyer.

Ashurst and the University of Stirling have announced a new strategic partnership focused on developing the next generation of NewLaw professionals They plan to do this by ‘bringing the evolution of the legal sector and the associated new career opportunities into the core of the curriculum’. Through this innovative collaboration, they say, ‘students will understand and embrace the changing legal services market, and identify the challenges and opportunities posed by NewLaw.’

“The practice of law and the role of legal professionals is changing rapidly, and the education of our future ‘NewLaw’ professionals needs to reflect this new dynamic,” said Mike Polson, partner and head of Ashurst Advance Delivery. “This new programme is innovative and forward-looking, not only broadening and deepening the students’ knowledge of ‘NewLaw’, but also providing them with the skills and behaviours needed to meet the demands of the changing legal services market.”

Ashurst is one of the employers involved in the university’s work experience programme. “Being able to provide work placements allow us to really support young people to enhance their learning experience and supplement taught theory, by educating them on the commercial reality of the legal industry.” 

With Scottish independence now looming large just over the horizon there could be no better time to prepare for the ‘changing legal services market’.

Mentoring is the Key

One of the key points to emerge last evening from Brown Rudnick’s ‘Women in Business ‘ series in conversation with barrister Alexandra Wilson was the importance of mentorship. In Wilson’s case this had started as a teenager when she took part in the Target Oxbridge programme and her mentor had been ‘brilliant’ in shaping her ambitions. But it has continued up to the present in her career with 5SAH where QCs and other senior barristers have been on hand with advice. “You want your mentor to be someone you can call when you are panicking,” she said. But mentors also need to be ‘brutally honest’ when the occasion demands. “A mentor is not a pillow to cry on,” she emphasised

Wilson was awarded the first Queen’s scholarship by the Honourable Society of the Middle Temple, a scholarship for students showing exceptional promise in a career at the Bar.

Alongside her paid family and criminal law work with 5SAH, Alexandra helps to facilitate access to justice by providing legal representation for disenfranchised minorities and others on a pro-bono basis.

A member of the Criminal Bar Association Social Mobility Committee, she is the founder of Black Women In Law. She also co-founded One Case At A Time, an organisation set up to assist disenfranchised minorities in the legal process.

Her first book, ‘In Black and White: A Young Barrister’s Story of Race and Class in a Broken Justice System’ was published in August 2020. 

LEGAL INSIGHT OF THE WEEK – COUNTERFEITING COVID

The Rouse Insight magazine (from international IP law firm Rouse) provides a regular supply of excellent commentaries on business and legal developments in the far east and particularly in China. In the current edition, published yesterday, NICK REDFEARN, the firm’s Deputy CEO writes a fascinating piece about the ‘Top Enforcement Issues to watch in 2021’ What he had to say about ‘Counterfeit Covid related products – from PPE to vaccines’ is both highly pertinent and percipient.

2020 saw reports of a wide range of pandemic critical products such as masks, PPE, sanitizers and cleaners, testing kids and medicines. This is expected to continue throughout 2021. All over the world criminal, customs and regulatory officers must work with IP owners, many of whom have special IP teams working on Covid related products protection. Ensuring a continuous genuine supply of a wide range of Covid protection products remain a critical global need. 

With the arrival of vaccines comes a new challenge, how to stop the fakes? Action requires the management of ingredient producers and supply chains, which often start in India and China. Vaccines are biologics, limiting the number of producers.  While patents are typically used to stop illegal active ingredient production and transport for pharmaceutical products, the patents won’t exist. Reluctance to seek patent protection and the short timeframe since invention means few patents will exists for such novel vaccines. Trademarks and regulatory approvals must be used, which limits action to ‘end markets’ only. 

The status of generic vaccines may be tested. Counterfeits could prove extremely harmful to recipients if they are dangerous; and even if harmless and ineffective they will allow the continued spread of Covid. The global PR risk is huge, with vaccines already a touchy subject; this suggests that government and the enforcement world need to be very proactive and stamp on the slightest whiff of illegal vaccines.

For more go to  https://rouse.com/insights

LEGAL ANALYSIS OF THE WEEK

When football managers are shown the red card

You don’t have to be a failure to be sacked as a football manager. You might just be the person who pays the penalty for other people’s underperformance say Alex Huston, Rachel Lester and Jonathan Metliss

After an 18-month stint, Frank Lampard was dismissed on Monday as Chelsea Football Club’s Chief Coach to be replaced immediately by Germany’s Thomas Tuchel. It appears that his departure was amicable with both owner Roman Abramovich and Lampard releasing complimentary statements about the other.

However, it has not always been such smooth sailing between the Club and their departing managers, and it has been reported that Abramovich has previously spent £110m on dismissing his managers. Antonio Conte successfully brought a claim for unfair dismissal against Chelsea at the Employment Tribunal following the termination of his employment in 2018.

His claim was not defended which means that the club effectively accepted that there was no fair reason for dismissal and/or that they had failed to follow a fair procedure. A total award of £85,206 was made by the Tribunal, the maximum a Tribunal could award at the time.

The Curse of Poor Results

Chelsea’s decision not to defend the Conte case reflects the difficulty that clubs face in establishing that a series of losses is because of a manager’s lack of capability (one of the five potentially fair reasons for dismissal) rather than the capability of his players, whose performance could be said to have led to the poor results.

This can mean that some managers who have underperformed can still be paid off or receive substantial damages when their performance, arguably, does not justify it.

Given that Premier League managers are on an annual salary of millions of pounds per year, it is hardly surprising that one rarely sees them bring claims to the Employment Tribunal for unfair dismissal when the Tribunal can only award compensation up to a statutory cap of £88,519 (from April 2020 to March 2021). Employees must also have the necessary two-year period of service to bring a claim which would exclude Frank Lampard from such a course of action.

Breach of contract claims in the Employment Tribunal are also rare as they are subject to a cap on remedy of £25,000. It would therefore be more desirable for an aggrieved football manager to bring a claim in the County or High Courts where an award is unlimited.

In all likelihood, most cases will settle under a Settlement Agreement to protect the club from legal claims, preserve the confidentiality of the settlement and protect the privacy of the parties, bearing in mind Employment Tribunal decisions and awards are now published on the internet and accessible by a simple internet search.

Jonathan Metliss is Chairman of Axiom Stone Solicitors and Rachel Lester and Alex Huston are solicitors within the firm’s Employment Team

LEGAL APPOINTMENT OF THE WEEK

ALEC CHRISTIE AT CLYDE & Co.

CLYDE & CO. in Australia has recruited digital law, data protection and privacy lawyer ALEC CHRISTIE for the firm’s Resilience practice, joining forces with the firm’s cyber risk practice, headed up by Partner, John Moran. Thus is part of the continuing development of the firm’s global technology and cyber risk offering following the hires of partners Marc Voses in New York in September and Ian Birdsey in London in July. 

Christie joins from Mills Oakley, having previously spent four years as a partner at Ernst & Young and has particular expertise in pre-incident support and helping clients enhance their privacy and cyber resilience. He has wide experience in the fields of data privacy, cybersecurity, privacy compliance, digital transformations and blockchain, smart contracts and cryptocurrency. “The last few years have seen a sharp increase in the frequency and severity of cyber incidents and a continuing growth in the need for the services my practice offers, both in Australia and globally,” says Christie.

LEGAL LECTURE OF THE WEEK

NEXT THURSDAY – FREE LECTURE FROM GRESHAM COLLEGE

Is There a Level Playing Field at Inquests? From Death On The Rock to the Birmingham Pub Bombings

4 Feb, 6pm-7pm online (or watch later)

Presented by Leslie Thomas QC, Gresham Professor of Law

Is there is a level playing field between participants at inquests? What does ‘equality of arms’ mean? Is such a concept appropriate when looking at inquests? Are inquiries better?

How have they developed since the IRA Death on The Rock case? What are the problems faced by those representing families, is there a case for fundamental change? If so what model should we adopt to replace the present system?

https://www.gresham.ac.uk/ lectures-and-events/inquest- equality

To register for this lecture use

an email address via the webpage for the lecture. You will get an email with a link 10 minutes before the lecture is due to start. 

Read more about Professor Leslie Thomas QC

You can see Professor Thomas in this recent Panorama documentary about deaths in custody https://www.bbc.co.uk/ iplayer/episode/m000r6z2/ panorama-i-cant-breathe-black- and-dead-in-custody.

We are planning to be back again next week so please send your news, views, insights and analysis to

fennell.edward@yahoo.com

and please relay this on to friends and colleagues