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

February 16 2024

Editorial contact: fennell.edward@yahoo.com

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

February 16 2024

Editorial contact: fennell.edward@yahoo.com

Pressure decision – to merge or not to merge?

It was one of those ‘closing doors’ moments in transatlantic legal history.

Was the up-and-coming and highly ambitious (but relatively small) Bird & Bird going to merge with the shiny US firm Orrick? It was the late 1990s and the US outfit had offices in New York and San Francisco and a lively reputation for its leading finance practice.

Orrick wanted to grow in Europe and they came courting Bird & Bird. Initially flattered ,the London firm entered into negotiations and at first it looked like a deal. But doubts grew and it went to the wire. Did they really want to surrender their independence? Late in the game the talks were called off.

Now, this week, we see that lawyers are leaving Orrick in droves – especially in Italy where many are joining local firm BonelliErede. Meanwhile Christian Bartsch, the Bird & Bird CEO has declared that he is aiming for a Ibn euro target for 2029. Looks like Bird & Bird made the right decision.

The LegalDiarist

In this week’s edition

– DANGER! PANDORA’S GenAI BOX NOW OPEN

– EVER SEEN ANYTHING LIKE THIS BEFORE?

– THE LUCK OF THE IRISH!

– ON THE B SIDE

on TikTok vs.Universal Music, Body Shop, mixed injury claims, RASSO lawyers, tackling fraud

at 4PB and Excello Law

THREAT AND OPPORTUNITY! PANDORA’s GenAI BOX NOW OPEN

Are we opening Pandora’s box with AI? asks Lex Mundi

Not a week goes by without another sensational AI story for the legal sector. This time it comes from the latestLex Mundi GC Summit ReportOpening Pandora’s Box: Early Implications of Generative AI for Corporate Legal Management’ which claims that GenAI will disrupt the delivery of legal services ‘more than previous technological shifts’.

Based on discussions and findings from the legal network’s recent General Counsel Summit in Milan the report paints a radically different picture of the future of the law business Most notably, maybe, the report suggest that  GenAI might be the catalyst which finally triggers the ‘long-prophesyed’ demise of the billable hour for corporate legal advice. “GenAI’s ability adds significant capability to assist in drafting legal documents and other routine tasks, leading to significant time savings. Consequently, General Counsel are expecting cost reductions and efficiency gains to be reflected in legal fees.”

More positively, however, the report also suggests that “Value-based billing for strategic advice will increasingly fill the void.” The reality, of course, is that GenAI will also be changing the way that clients operate and that will, in itself, open up many new areas of legal risk. In addition the use of GenAI by regulatory authorities to monitor company activities means that market participants may be at greater risk of enforcement action.

“The integration of GenAI into legal practice marks a pivotal shift in how law firms approach day-to-day operations and the nature of their engagement with clients,” said Helena Samaha, CEO and President of Lex Mundi. “As in-house teams increasingly leverage these technologies, the volume and nature of work for external counsel may change dramatically. This evolution challenges private practices to redefine their value proposition, with a focus on strategic, value-added services.”

EVER SEEN ANYTHING LIKE THIS BEFORE?

An Original design?

Echoing the findings of the Lex Mundi report is the announcement by  Corsearch, a provider of ‘brand protection and trademark solutions’, that it has launched its new Industrial Design Search tool within its ‘TrademarkNow’ platform.

As the company explains it, ‘The new tool employs AI-driven image recognition technology based on the Corsearch LogoCheck tool, enabling IP professionals to conduct industrial design searches with unprecedented speed and accuracy.’ In other words the Industrial Design Search tool streamlines the process of identifying and registering unique designs, ensuring that ‘companies can leverage their investments to the fullest extent possible’.

Industrial design protection focuses purely on the aesthetic elements that make a product visually distinctive i.e the decorative features or appearance of a product. Given the current level of ‘trademark congestion’ industrial designs are what are regarded as a ‘crucial avenue’ for safeguarding a company’s goods and services. But undertaking checks the old-fashioned way cannot compete with the speed of performance of ‘similarity algorithms’ and the capability of refining searches by geographic regions and Locarno class features. Initially Corsearch Industrial Design Search will have 75 national databases available, expanding to 77 databases later in 2024 with the addition of both Moldova and Eurasia.

“With the launch of Industrial Design Search, Corsearch continues its mission to empower trademark professionals and brands worldwide,” commented Viji Krishnan, President of Trademark Solutions, Corsearch. “Our AI-driven technology will set a new standard within the industry, offering unmatched insight, speed and service in identifying similar industrial design matches.

“For IP and trademark professionals in our busy industry, our hybrid intelligence offers an incredible opportunity to reduce workload, supported by our expert insight andexperience.”

THE LUCK OF THE IRISH

The Student Finalists in the Trailblazer Moot – Not quite where they expected to be in London

In a remarkable display of legal solidarity the staff at the Royal Courts of Justice stepped in to help out a bunch of Irish law students last week when their planned use of Court One in the Old Bailey was banjaxed by the electrical snazz at the historic criminal court.

The London Irish Lawyers Association (LILA) had decided to reach out to cousins across the water to hold the grand final of its Trailblazer mooting competition -which aims to identify some of the best and brightest young legal minds across the island of Ireland – at the Bailey.

The finalist teams (consisting of one university student and one secondary school pupil) flew in from Cork and Belfast and were to be treated to a ‘whirlwind tour of legal London’ on Friday, plus a tour of the Irish Embassy, before getting rigged up to appear before HHJ Rafferty KC and her usher for the evening, the Hon. Mrs Justice McGowan, in a contested a bail application.

Great plan – just a shame about the fire which broke out in the intended venue. In fact, there was no shortage of other facilities eager to step in to help out. Pinsent Masons and Kingsley Napley, for example, were both happy to offer a friendly room for a moot in need of a venue. However, when the RCJ staff heard about the student lawyers’ plight they said they were more than willing to stay late on Friday evening so that Court Five could be used for the dramatic final.

So, excellent PR for Legal London. Meanwhile the team from Cork, Alyson O’Kelly-Lynch (University College Cork) and Chinedu Okonkwo (Gaelcholáiste Mhuire AG) emerged the winners. Jack Hughes (Ulster University) and Isabella Cox (North Coast Integrated College) were ‘brilliant runners up.’ (Thankfully none of them were planning to go for a weekend at Pontins to celebrate).

ON THE B SIDE

‘B Corp’ certification is gradually insinuating itself into the legal establishment. A total of seventeen firms have now achieved the registration includingFreeths, Muckle, Hartley Law, Hive Legal and Cripps. All of them have been checked over and considered A1 across five key impact areas: Governance, Workers, Community, Environment and Customers. “The certification process is rigorous, with applicants required to reach a benchmark score of over 80 while providing evidence of socially and environmentally responsible practices relating to energy supplies, waste and water use, worker compensation, diversity and corporate transparency,” runs the official line.

Unfortunately one of the most high profile B Corp certified companies is The Body Shop – so it registration does not guarantee commercial success. Nonetheless there are advantages of being part of the club including being able to partner up with other like like-minded organisations.

And that is what has happened to Bates Wells, the very first British outfit to become a B Corp. and which is now working with fellow legal B Corp, Obelisk Supportto bring in ad hoc legal consultants to the firm when it requires specialist expertise.

“We actively look for suppliers who are fellow B Corps with a strong social purpose and an environmental agenda, and Obelisk Support fits those criteria,” says Sally Procopis, Chief Operating Officer for Bates Wells. “I look forward to continuing to use the company’s freelance legal team of consultants when we have a specific need.”

Meanwhile Dana Denis-Smith, founder and CEO of Obelisk Support says: “Bates Wells were at the vanguard of the B Corp movement and have set a strong example for other law firms to follow. Organisations like Bates Wells and Obelisk demonstrate to the legal profession that you can pursue both profit and purpose. You don’t have to sacrifice one for the other. In fact, given the way environmental, societal and governance issues are driving corporate agendas today, B Corp status provides the profession with a recognised way of aligning with client agendas.”

ONE TO WATCH: TOP LEGAL JOURNALIST FRANCES GIBB AS YOU HAVE NEVER SEEN HER BEFORE

As the doyenne of the legal journalism scene Frances Gibb is the ideal interviewer to put the country’s top judges to the test in the University of Law podcast series The Judges: Power, Politics and the People.

All the judicious stars are here in one place from Lord Phillips of Worth Maltravers to Lord Sumption and, of course, from Baroness Hale to Baroness Butler-Sloss:

“Judges hold the critical balance of power as the third limb of the constitution alongside the government and Parliament,” observed Frances Gibb.“They have been propelled into an increasingly prominent (some say political) role, since the creation of the UK Supreme Court and the introduction of the Human Rights Act in 2000.   As a result, they have found themselves determining where the law should be drawn when ministers push at constitutional boundaries. 

“In recent years judges have been more visible to the public and accessible to the media through cameras in courts, interviews and press conferences. But relatively little is still known about the people who make many of the key decisions in framing our laws.  This series will cast light on the men and women who act as critical power brokers in our constitution.” 

Given the stresses and conflicts between Government and the courts over the past five years this is definitely a series to watch for anyone who wants top understand where the power lies in the UK today.

So hasten along to:uk.radio.net/podcast/ulaw-conversations-from-the-courtroom

TOPIC: The battle between TikTok and Universal Music over copyright infringement

COMMENT BY: Simon Goodbody, partner and intellectual property lawyer at Bray & Krais

“The creative freedom which has driven the popularity of TikTok among its users may now, ultimately, prove its downfall. TikTok will, I’m sure, point to the fact that it has taken steps to remove Universal’s original sound recordings from the platform and that its users are in breach of the terms of a user policy or equivalent document which the majority of them have probably never read. But that rather misses the point.  TikTok has created a platform that permits, on a large scale, the infringement of copyright in sound recordings, musical works and lyrics where it does not have the appropriate licences in place.

The problem is snowballing and this is an existential problem for TikTok because other rights-holders will be watching closely to see if Universal agrees to better terms or if the case goes to court. TikTok has to do a deal, or will almost inevitably face a claim seeking an eight or nine figure sum of damages.

“TikTok must decide the importance of music to its platform – and what they are willing to pay for it – before the house of cards comes tumbling down.”

TOPIC: Body Shop in administration

COMMENT BY: Nicola Seager, real estate management and property insolvency specialist, Clarke Willmott

It is being reported that up to 100 Body Shop stores could close, so this will have a big impact on landlords and the High Street generally.

When a large entity like this goes into administration, some landlords will see an opportunity to get a property back and others will be worried about whether rent will be paid. Landlords need to ask themselves what they want to achieve.

The moratorium process which comes into play following the appointment of an administrator means pausing any legal action against the company including forfeiture of leases, providing breathing space for administrators to sell the business or realise assets in the best way they can.

This means a landlord can’t automatically seek to enforce the terms of the lease on a tenant – their lease may say they can do so, but the law actually prevents it unless additional steps are taken.

Either way, the overriding message to landlords is to seek urgent advice about the options available under their lease. This gives them the best chance of obtaining a better outcome.”

TOPIC: Next week’s hearing in the Supreme Court on how to value mixed injury claims

COMMENT BY: Andrew Wild, head of legal practice at First4InjuryClaims

Claimants were promised simpler, swifter access to justice when the whiplash reforms were launched nearly three years ago and instead have been faced with uncertainty and delays.

This has led to a huge and concerning backlog of cases, with the average time taken to settle a case in the Official Injury Claim portal now almost 300 days.

The Court of Appeal’s decision may not have been popular with insurers, but it provided clear, sensible and much-needed guidance, which I hope the Supreme Court will uphold, and urgently, so that vulnerable claimants and the lawyers they continue to need are not left in limbo for any longer than necessary.” 

TOPIC: The shortage of specialist barristers qualified to do serious sexual offence (RASSO) cases as more practitioners opt out of this type of work.

COMMENT BY: Sam Townend KC, Chair of the Bar Council

Rape and serious sexual offence cases are amongst the most challenging of cases for any barrister practising in criminal work. Horrifying personal experiences lie behind each one. This takes its toll on anyone doing the essential work to put these cases to a fair trial. The publicly funded criminal Bar does brilliant work in hugely difficult circumstances.

The results of the CBA survey provide a clear picture why this workforce is declining in numbers: poor pay, unpredictable working times and locations, and depressed wellbeing. It is highly significant that over three quarters of barristers under five years of experience surveyed have said they will not consider working in this area.

The Bar Council will work with the Government and the CBA to seek to do whatever is needed to support and grow this limited group of barristers doing this important work. Financial investment in what is a fundamental public service is, however, an essential part of any solution.” 

TOPIC: The inaugural speech by Nick Ephgrave, the new Serious Fraud Office head, regarding fresh measures to tackle fraud including swifter action and more dawn raids

COMMENT BY: John Binns, White Collar Crime Partner, BCL Solicitors 

“The SFO’s name has not always been synonymous with good prosecuting. We’ve seen a hard few years of high-profile errors and worse, and all of us hope that this trajectory can be turned around.

Good prosecuting needs expertise, fairness, and resourcing, as well as legal powers. The SFO’s toolbox has never been more packed, with compulsory disclosure, deferred prosecution, and ‘failure to prevent’ offences. But it’s crucial that they use these wisely.

The public are increasingly aware of how criminal cases can go badly wrong. Failures to disclose material to the defence, fixed mindsets, and stitch-ups between companies and prosecutors, are common risks in cases of bribery and fraud.

Will Nick Ephgrave be the man to turn the SFO’s fortunes around? Strange as it seems, defence lawyers are among those keenest to see that come about. A prosecutor that is both efficient and fair, pursuing the right cases and achieving safe convictions, is a result in all our interests.”

4PB

Deirdre Fottrell KC, left, the family lawyer, has joined 4PB. Acting primarily in private law children work representing high net worth individuals, she is ranked as a “Star Individual” in Chambers and Partners 2024. She also sits as a Deputy High Court Judge.

As an experienced appellate counsel Fottrell frequently appears in the Court of Appeal. She has taken cases to the Supreme Court and the Privy Council and is also instructed in complex public law cases in the High Court and Court of Appeal as well as in surrogacy and assisted reproduction. She is regularly instructed in cases with an international element including abduction, relocation and adoption and has experience in cases where issues of legal parentage arise.

In a joint statement, Heads of Chambers, Charles Hale KC and Barbara Mills KC, said, “We are delighted that Deirdre has chosen to join us and continue her stellar practice at 4PB. Many of her clients are existing clients of 4PB, and well known to our clerking team.  Her joining takes the number of leading family silks to an extraordinary 25. We are immensely proud of the strength, depth and quality of service that we can provide”.

EXCELLO LAW

Mo Afzal,left, the commercial disputes and regulatory lawyer, will be joining Excello Law while also merging his existing law firm, HMA Law, into the practice. Having trained and qualified as a solicitor with Pinsent and Co (now Pinsent Masons) in Birmingham in 1990 he then joined DAC Beachcroft as an associate spending eight years specialising in defendant professional indemnity work related to claims against solicitors before setting up his own practice. He specialises in commercial disputes, professional negligence, and regulatory matters for solicitors including SRA investigations and SDT proceedings.

“I have always enjoyed the challenge of running a successful practice, but it can be a solitary experience at times,” said Afzal. “I am elated to join Excello as a Consultant Solicitor and to have proper back support from a large established law firm with many outstanding lawyers as colleagues. “

Having now successfully integrated 14 firms into Excello Law Jo Losty, the COO commented,“Whether as an individual consultant lawyer, a team, or practicing under your brand, this transition empowers lawyers to step away from management hassles and focus on the practice of law.”