Problems viewing this? Click to view in your browser
The Times

Thursday, November 10 2016

Frances Gibb and Jonathan Ames bring this morning’s must-read of all things legal, including news, comment and gossip.

New Brief Premium

  • Enemies of the rule of law -- comment by Lord Goldsmith, QC
  • Lure of the litigator -- recruitment special

Also today

  • Truss won’t ‘police the press’
  • Special relationship Trump trade deal unlikely, warn lawyers
  • Supreme Court backs families in bedroom tax challenge
  • House-buying tops legal complaints league table again
  • Lawyer attacks male-dominated UK business
  • Top US law firm instructions keep sliding
  • General counsel comment: Seven skills today’s lawyers must have
  • Blue Bag diary: Holder silent on Trump and justice
  • More Blue Bag: Handbags in the Moscow snow

Tweet us @TimesLaw with your views.

Story of the Day

Truss won’t ‘police the press’

The lord chancellor has delivered a robust defence of the independence of the judiciary in the face of calls that she be removed from office.

Liz Truss said that she took her duties as lord chancellor “very seriously” and that an independent judiciary was “the cornerstone of the rule of law”.

However, in a letter to the editor in The Times today, Truss also asserts the importance of the freedom of the press, insisting “it is not the job of the government, or the lord chancellor, to police headlines”.

Her comments come after legal figures criticised the justice minister for saying too little, too late after newspapers condemned the judges who delivered the Brexit ruling. Three senior judges who ruled that parliament needs to approve the triggering of Article 50, the start of the Brexit process, were branded “enemies of the people” who were seeking to subvert the referendum result.

Lord Falconer of Thoroton, lord chancellor under Tony Blair, said that judges had “lost their constitutional protector”. He said in a letter in The Times: “Until she [Truss] is replaced by someone willing and brave enough to do the job, the judges should rightly fear for their independence.”

The Times Thunderer column yesterday was also critical of Truss’s defence of the judiciary.

Yesterday, Truss outlined reforms to widen the diversity of the judiciary and enable people to become High Court judges who have not had previous judicial experience – such as academics, in-house lawyers or solicitors.

A recruitment drive for part-time judges or recorders will be launched next year, which will open up the posts to a wider pool of candidates to enter the judiciary for the first time.

News Round Up
Special relationship Trump trade deal unlikely, warn lawyers

Trade, business immigration and sanctions on Iran were the first subjects in the minds of London-based lawyers as they woke up to the shock realisation that Donald Trump had won the race to become the 45th president of the United States.

Trading places

On trade, Trump had seemed keener than Barack Obama to cut a quick deal with the UK once the May government has disentangled the country from the EU. However, Bernardine Adkins, a partner at Gowling WLG, an Anglo-Canadian law firm, warned against getting our hopes up.

“Relief at the UK being at the front of the queue for a US trade agreement may well dissolve as we realise just how far apart the UK is to ‘fortress America’ in its approach to free trade,” she said.

She pointed out that Liam Fox, the secretary of state for international trade, recently quoted Adam Smith’s stance that it was a “moral right” for people to buy whatever they wanted from those who sell it to them cheapest. That position contrasts sharply with Trump’s rhetoric on dumped steel and the failure of the political classes to act.

Doing green card business

Business immigration is another area that will have City hearts in mouths. During the campaign, Trump suggested that he would put a hold on new “green cards”.
“It is unclear yet how this might be implemented, if at all,” commented Claire Nilson, a lawyer with the transatlantic firm Faegre Baker Daniels.

“Mr Trump is, first and foremost, a business person,” she said, “so it will be interesting to see how commercial pragmatism may enter the equation." She also pointed out that on the election trail, Trump's robust statements on immigration focused on those already in the US without authorisation. “His employment-focused immigration policies are less clear but are likely to place emphasis on requiring employers to hire US workers."

Going nuclear over Iran

Renegotiating the deal cut last year between various western powers and Iran over the latter’s nuclear development programme also looks to be a tough call for the White House new boy.

“Whilst there have been fears about a unilateral re-imposition of sanctions,” said Patrick Murphy, a partner Clyde & Co, “the reality is that it would be very difficult for the US to re-impose sanctions that affected European companies if the EU did not impose the same sanctions. It brings with it the possibility of a transatlantic quarrel and countervailing measures from the EU."

Supreme grief

Trump was the first presidential candidate to commit to nominate a Supreme Court justice from a list of judges released before the election. Aaron Streett, a partner in the Houston headquarters of Baker Botts, forecast the new president will be under "intense pressure" to select one of the conservative judges on that list to replace Justice Scalia after his death last February.

If Trump does not keep his promise, said Streett, "he will open an immediate rift with many conservatives who supported his candidacy primarily because of the importance of nominating conservative Justices to the Supreme Court".

Who will be the attorney?

When it came to speculating on the justice policy of a Trump administration and the question of who will succeed Loretta Lynch as the US attorney-general, lawyers dived for cover.

There was broad media speculation that Rudy Giuliani – the former mayor of New York who took a break from the partnership at Greenberg Traurig to get stuck into the Trump campaign – had an inside track on the post. However, none of the transatlantic law firms or the London offices of US law firms was keen to speculate on names.

See Blue Bag diary and tweet of the day below

Supreme Court backs families in bedroom tax challenge

Hundreds of families with a severely disabled adult or child living at home will be spared the effects of the “bedroom tax” after a Supreme Court ruling, reports Rosemary Bennett in The Times.

Judges ruled that the government had discriminated against a disabled woman and her husband and, separately, grandparents with a severely disabled grandson when it cut their benefits.

Since April 2013 families in social housing who have a spare bedroom have had their housing benefit reduced by 14 per cent and those with two or more spare rooms by 25 per cent. The aim was to encourage moves to smaller properties, but about half a million families had their benefits docked because they wanted to stay in their home or could not find a suitable property.

The judgment found that the government acted unlawfully against Jacqueline Carmichael, 44, who has spina bifida, and her husband and full-time carer, Jayson. Mrs Carmichael needs a special hospital-type bed in her bedroom with an electronic pressure mattress designed to fit a single hospital bed. She has to sleep in a fixed position and cannot share a bed with her husband. There is no space for an additional bed in the room and so they need a two-bedroom flat.

House-buying tops legal complaints league table again

Problems around the house-buying process led the league table of complaints about the legal profession for the third year running.

Residential conveyancing, which is predominantly conducted by high street solicitors’ firms, clocked up about 20 per cent of all complaints to the Legal Services Ombudsman in 2015-16. But the number in that field was slightly down on the previous year.

The next highest single category of complaints involved family law cases, which accounted for slightly less than 15 per cent of the total.

However, family law complaints have dropped considerably over the past four years. In 2012-13 they formed nearly 20 per cent of the total.

The ombudsman’s report showed that personal injury cases and general litigation were the two remaining significant causes of complaints. Overall, the number of complaints against lawyers of all types sunk to its lowest level since the ombudsman opened for business in 2010.

Over the past year the ombudsman’s office accepted 7,033 cases for investigation, down from more than 8,300 in 2012-13.

The watchdog reported that its budget fell for the fifth year running, down by nearly 5 per cent over the last year, from £12.2 million to £11.6 million. According to a statement from the ombudsman, that fall reflected “ongoing efficiency improvements across the business”.

Lawyer attacks male-dominated UK business

Lingering patriarchal tendencies in British business and the “motherhood penalty” are the reasons women will spend the rest of the year working for nothing, a leading employment lawyer claimed yesterday.

Seizing on “equal pay day”, Karen Jackson, the founder of Didlaw, a niche employment practice in London, claimed that owing to the UK’s gender pay gap, the UK’s female workforce will effectively be working salary-free until the end of the year compared with its male counterpart.

“The motherhood penalty is one very obvious reason,” she said, claiming that “it is a fact that most women’s careers and pay will suffer damage if they have kids. The same does not happen to men because most men don’t take time out to raise their children.”

Jackson also lashed out at the “vestiges of patriarchal attitudes” in UK businesses. “How is it possible that female graduates going into teaching have lower salaries?” she asked, claiming that the position was similar for health professionals despite it being a profession dominated by women.

“There are still systemic problems,” said Jackson, “most notably the majority role of men on company boards and outdated – male – perceptions which are also endorsed by women who grew up in the old system”.

Top US law firm instructions keep sliding

Demand for legal services at the top US law firms has continued to slide, recently released figures show, while fee rates inch up.

The volume of instructions fell by slightly more than 1 per cent in the third quarter of the year compared with the previous three months, according to figures from Thomson Reuters. That means that over the year so far, demand for services is 0.3 per cent down on last year.

Nonetheless – or perhaps causing the slide – fee rates at the larger US firms increased during the last quarter by more than 3 per cent.

Deal departments at large law firms turned in patchy figures, the researchers said. “Transactional practices, which have largely been a bellwether for the market, turned in a mixed-to-weak performance,” according to the report.

Corporate work rose 0.5 per cent and is up 0.5 per cent over the year-to-date. But real estate fell 1.7 per cent and is down 0.9 per cent over the year-to-date, while tax work dropped 2 per cent and is down by nearly the same figure over the year-to-date.

Litigation was down by nearly 2 per cent over the quarter – its weakest performance this year, according to the report – and is down 1.4 on the year-to-date.

In Brief

In today’s Times law …

Elsewhere …

  • 'Uneven and unpredictable' is City law firm leaders view of Trump – Legal Week
  • Female lawyers fear “Trump effect” – Legal Futures
  • More turbulance at King & Wood Mallesons as top boss stands down – The Lawyer
  • Armistice Day scuppered by EU safety law – The Times

Seven skills today’s lawyers must have Bjarne Tellmann

The latest in our series of general counsel comments produced in partnership with Winmark.

Some skills are critical for being a successful lawyer – judgment and expertise, for example, but they form a baseline and many non-legal skills are equally important.

Seven are essential:

Innate curiosity. Good lawyers are innately curious. They learn organically and continuously from formal and informal sources. Average lawyers over-emphasise formal learning. As Silicon Valley shows, in an exponential world, what you know is more important than where you learnt it. The future belongs to “information herbivores”, constantly grazing on new knowledge to generate thought leadership.

Good lawyers are what the venture capitalist Bryan Johnson calls “future literate”. They do not just learn new things – they apply that knowledge to anticipate and shape the future. And great lawyers leverage their personal networks to import and export good ideas. When you hire a great lawyer, you hire a network.

Excellent communicators. Great lawyers communicate well in three respects. First, they’re excellent storytellers. They know our brains connect with stories and that what you say is often less important than how you say it.

They start with why. As Simon Sinek, the management consultant, famously said: people don’t buy what you do, they buy why you do it. Focusing on why can move mountains.

And top lawyers write in a manner that is easy to consume. They know that complex syntax and jargon-laden paragraphs usually conceal fuzzy thinking.

Business judgment. The best lawyers approach law as a business not a profession. They understand a client-centred approach is essential in a world where legal knowledge is a commodity. Good lawyers have a passion for business and ask lots of questions.

Results-driven. Lawyers are intelligent, task-oriented high-achievers. Yet surprisingly few are results-driven because their view of an acceptable result differs from their clients’ view. Superior lawyers go the extra mile to fashion real-world results.

Courageous. Great lawyers dare to stop stupid things from happening. They are prepared to resign. Unscrupulous clients will use every trick to lull weak-kneed lawyers to sleep. Good lawyers have the guts and smarts to stand up to the occasional bully.

Personal power. The best lawyers have personal power. Erica Peitler, the leadership coach, notes that there are three sources of power: position (the authority of role); expertise, (skills); and personal (ability to connect, inspire, question, listen, support). Good lawyers apply each appropriately, emphasising personal power.

Cultural intelligence. Top lawyers appreciate that various cultures have differing approaches to leadership, disagreement, trust and reasoning.

Grit. Top lawyers stay motivated and determined to succeed in respect of a challenging goal, over long periods despite setbacks. Knock them down and they repeatedly get back up until they succeed. The law is tough, with many frustrations and long nights. Grit counts.

These traits are not specific to the legal profession. But in that, there is a lesson: the core capabilities for top business leader success are converging.

Bjarne Tellmann is general counsel at Pearson, the education company. This article is an edited extract from his forthcoming book, Building an outstanding legal Organisation: battle-tested strategies from a general counsel. Tellman is a member of the Chief Legal Officer's network at Winmark, the C-Suite networks organisation. Contact the chief executive for more information at

Tweet of the Day

i like to imagine trump walks into congress says a thing then shouts THIS IS A LAW! like how michael scott declared bankruptcy in The Office

Shea Serrano @SheaSerrano

Blue Bag

Holder silent on Trump and justice

While some lawyers were keen to pile in with comment on the only story that matters – the plucky tale of a property tycoon and casino owner who fights the odds to be become the US president – one was conspicuous by his silence.

Eric Holder was Barack Obama’s attorney-general for most of the soon-to-be ex-president’s two terms. He left last year to do the thing that all senior law officers do in America – get back into the revolving door to return to his law firm, in this case Covington & Burling, a DC-based lobbying specialist practice.

Surely if anyone had some insightful views on what a Trump administration meant for justice policy stateside, it would be the man, who, in The Brief ran a stalwart defence of the Obama regime’s inability to close the prison camp at Guantanamo Bay. And if Holder didn’t fancy that, then how about a tiny bit of speculation on who would take his old job, once his successor, Loretta Lynch, is given her cards in January?

You might think so, but think again. Total silence from Holder. “Thanks for reaching out,” came the standard response from Holder’s office, “but we will pass for now.”

Out there in the twittersphere, lawyers were less reluctant to throw some possible A-G names into the ring. Keyser Soze, suggested The Bounder.

And The Brief makes its own wildcard suggestion: Hillary Rodham Clinton … She is, after all, a graduate of Yale law school, who went on to become the first female partner at the Rose Law Firm in Little Rock.

Handbags in the Moscow snow

Any fear that the wild, wild east atmosphere in Russia was in danger of abating will be dissuaded by this jolly story from the nation’s capital.

Nikita Dzhigurda is a 55-year-old Russian movie star who allegedly has been having some marital difficulties. He recently approached his wife – whom he met on the set of a celebrity ice dancing programme – and her lawyer on the steps of a Moscow court and began to air his grievances regarding both in a forceful manner.

One thing led to another, and before you could say balalaika, the lawyer, understood to be Sergey Zhorin, was wrestling with the ageing heartthrob in the autumn snow. According to reports on The Mirror website – which helpfully includes video footage – lawyers around the world will be relieved to hear that Zhorin got the better of the actor.

Quote of the Day

“Trump, Giuliani and Christie – if that doesn’t scare you what will?”