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The Times

Tuesday, September 13 2016

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

Today

  • Falconer: focus on access to justice, not regulation
  • Firms pay millions to avoid partner poaching lawsuits
  • Local authority refuses to name lawyer in Shipstone murder case
  • Lawyers attack government white collar crime reforms
  • Trader attacks fraud fighters for not pursuing bosses
  • Comment: Pay attention to Helen's message in The Archers
  • The Churn: London mayor appoints silk as diversity tsar
  • Blue Bag diary: Gold medal trainee at Two Birds

Tweet us @TimesLaw with your views.

 
Story of the Day

Falconer: focus on access to justice, not regulation

Access to lawyers is a better focus for the legal profession than reforms to its current regulatory framework, Lord Falconer of Thoroton said yesterday.

The former Labour lord chancellor said that firms should look at providing an hour’s worth of free legal advice because the problem remained of “getting people through the door”.

He told a conference in London: “I also wonder if this is the moment to be looking at unmet need rather than the regulatory system.” Reports to date had not produced evidence that the regulatory system was failing, he added.

“It may be that we should be focusing more on unmet need than ceaseless change in the regulatory system.”

Lord Falconer, who recently resigned as shadow lord chancellor and justice secretary from the Labour leader Jeremy Corbyn’s team, was chairing a session at the Westminster Legal Policy Forum on the legal services market.

Paul Philip, chief executive of the Solicitors Regulation Authority, which is the vanguard of the case for a shakeup of the regulatory system, urged the need to reform “at pace”, saying regulation had to be in the public interest. “Around two thirds of the public think that professional legal services are simply too expensive, and small businesses agree.

“And fewer than one in ten people experiencing legal problems instruct a solicitor or barrister for their legal needs. This can’t really be acceptable. Legal services are simply unaffordable for the vast majority of the public and the small businesses that form the backbone of our economy. And the public purse does not have the resources to close that price gap.”

This is not the time, he added, to put the brakes on regulatory reforms that will “support a healthy, legal market, inject more competition and innovation, provide opportunities for solicitors and improve access to law”.

Solicitors and conveyancers at odds on proposed reforms

Solicitors and licensed conveyancers faced up to each other over proposals to streamline legal profession regulation, with leaders from each branch on opposite sides of the argument.

They were reacting to a call from the Legal Services Board, the umbrella watchdog that currently sits over eight frontline regulators, for the creation of a single independent body.

Robert Bourns, president of the Law Society, which represents English and Welsh solicitors, invoked Brexit as a reason not to rock the regulation boat. He said: “During a period of unprecedented change for Britain following the vote to leave the European Union we must maintain confidence in all our markets and in particular the legal market. Uncertainty should be reduced, not increased.”

That, said Bourns, meant “embarking on regulatory change in this climate, especially when there is broad recognition that the current regulatory framework is working, is misconceived.”

His view contrasted sharply with the position of Janet Paraskeva, chairwoman of the Council of Licensed Conveyancers. She urged the board to press ministers to allow it to pursue its goal quickly.

“It is our view that the Legal Services Board already has powers to deliver independence of regulation from representation,” she said. “And I urge the board to use those powers now in line with its views as set out in its paper. Securing the independence of regulation is a vital first step in the further reform of legal services.”

 
 
News Round Up
Firms pay millions to avoid partner poaching lawsuits

Large commercial law firms are paying millions of pounds to avoid being sued when they poach teams of lawyers from rivals in a high stakes game that threatens the financial stability of some, a report published today maintains.

The recruitment of specialist partners and their teams – so-called lateral hires – has become a feature of City of London law firm behaviour over the past two decades. Restrictive covenants, which are far more prevalent at English firms than at their US counterparts, have been significant stumbling blocks, forcing lawyers to go on long-term gardening leave before moving to their new firms.

But today a report maintains that the large practices in the Square Mile routinely hand over significant lump payments and agree revenue-sharing deals to avoid the moves being litigated.

“Losing a team is potentially a big financial hit, and often there is a feeling of betrayal,” Jeremy Callman, a barrister at Ten Old Square in Lincoln’s Inn, told the authors of a report on law firm growth strategies.

He said that lateral-hire moves often resulted in “a feeling that the departing partners have been conspiring behind the backs of management. There is also a need to set an example to prevent other teams from following suit. So they do often end up in disputes, although usually commercial discussion follows.”

Those negotiations, said Dan Sutherland, a partner at Fox Williams, the London law firm that produced the report with Byfield Consultancy, “commonly result in the poaching firm making a significant lump sum payment to buy out the team, or agreeing to pay over a percentage share of the revenue from that team over a given period”.

According to Callman: “We are potentially talking about millions of pounds. A substantial payout for a botched recruitment move is a significant setback to growing firms’ profitability, so managing partners seeking to poach perceived rainmakers and their teams should proceed with extreme caution.”

Convicted trader attacks fraud fighters for not pursuing bosses

Fraud-fighting agencies have been attacked for failing to prosecute senior bank bosses over Libor by Tom Hayes, the trader who was convicted for manipulating the banking exchange rate.

Hayes, who is serving an 11-year jail term, said he remained “puzzled” that none of the senior management at UBS had been interviewed since the end of his trial.

The former UBS trader, the only person to be found guilty by a UK jury of trying to manipulate the benchmark rate, issued a statement in response to comments by David Green, QC, director of the Serious Fraud Office, that the authorities could not “touch” the bank for which Hayes worked.

He said: “I remain puzzled as to why the Serious Fraud Office feels it is unable to pursue more senior individuals in my case. They are in possession of a written instruction sheet instructing Libor submitters to adjust Libor upwards or downwards depending on the bank’s overall risk.”

The former trader added that he had spent “many hours” explaining that in his trial – “in the hope that my jury would recognise that my actions were entirely consistent with bank written policy, a policy and ethos already in place when I joined the bank at the age of 26 and for which I am not responsible”.

Lawyers attack government white collar crime reforms

Government plans for the biggest shake-up in corporate criminal law in living memory received a lukewarm reception from lawyers yesterday, with predictions of conflicts of interest and “defensive” over-reporting.

Ministers are proposing to make boardroom members criminally liable for economic crime committed by employees. But lawyers warned that the new offence could result in businesses being punished twice over for their employee’s actions.

“The introduction of ever-stricter rules on liability will increase the burden on corporates who could be forgiven for understanding from previous messages from government that there would be some let-up in the ever increasing regulatory costs and pressures which they face,” said Adam Brown, a partner at the London office of Jones Day, a US law firm.

Brown argued that “the victim of many white-collar crimes committed by employees is the employer itself. With other economic offences there is already a robust statutory and regulatory framework in place.”

Other lawyers predicted a “substantial increase” in the use of deferred prosecution agreements in cases where large corporations are alleged to have committed a crime. And that will create its own set of problems, forecast Sara George, partner at Stephenson Harwood, a London firm.

“There is likely to be a significant conflict of interests between a company which wishes to avail itself of a deferred prosecution agreement and to co-operate in the prosecution of its errant directors,” said George, “and employees and those directors and employees who are currently excluded from consideration for a deferred prosecution agreement.”

Others were doubtful that the proposals would garner sufficient support in the Square Mile for ministers to go ahead. Ben Rose, a partner at Hickman and Rose in London said that City bosses were “already nervous” over the referendum vote to leave the EU and that therefore “the government may not be able to reconcile this proposal with [prime minister Theresa] May’s commitment to keep Britain open for business”.

Polly Sprenger, a white collar crime lawyer at Eversheds, pointed out: “Successive governments have mooted the idea of extending failure to prevent corporate economic crime to a raft of new offences beyond corruption. The concept has real merit from a crime prevention viewpoint, but corporates may be tiring of the government’s continual will-they-won’t-they deliberation on the issue.”

Local authority refuses to name lawyer in Shipstone murder case

A local authority has refused to reveal the name of the solicitors’ firm it claims accidentally sent the address of a girl to her estranged father, who then shot the seven-year-old on the doorstep of her “safe house”.

According to a review into the 2014 murder by the East Sussex local safeguarding children board (LSCB), Mary Shipstone’s mother claimed that the solicitor inadvertently sent address details to Yasser Alromisse in a bundle of legal papers.

Alromisse turned the gun on himself and died after murdering his daughter.

A spokesman for the review team confirmed to The Brief yesterday that it would not reveal the name of the individual lawyer or the law firm alleged to have made the mistake. The spokesman said: “Serious case reviews are anonymised in order to protect the life of siblings and any other family members who are or may be affected. The purpose of a serious case review is to establish whether any lessons can be learned by professionals, rather than apportioning blame, therefore we won't be releasing any further information.”

In a statement, the board said: “After a thorough independent review, the LSCB concluded, as did the investigating police officers, that the father planned and carried out the killing in a secretive way, using the internet and a range of covert methods to trace the family and obtain the means to carry out the murder.

“There is no evidence that any professional involved with the family prior to these tragic events was aware of this activity. Based on the review, the LSCB concludes that no professional could have prevented him doing what he did.”

The board went on to warn about the importance of social media in the case. It said in a statement: “What we want all agencies to be mindful of is that social media and powerful internet search engines make it increasingly difficult for families fleeing violence to rely on their whereabouts remaining secret. This needs to be considered as part of safety planning and guidance given to those at risk.”

In Brief

PwC's legal arm posts 24% revenue jump to £59.9m – Legal Business

Norton Rose Fulbright acquires Vancouver firm Bull Housser – The Lawyer

Legal Aid Agency contracts chief to leave – Law Gazette

Russell Group legal education bubble is about to burst – Legal Cheek

 
Byline
Comment

Lawyers must pay attention to Helen's message in The Archers Gemma Lindfield

It has been an odd week. In the fictional world of Ambridge, the villagers supporting Helen Titchener will be popping champagne corks after her acquittal on charges of attempted murder and wounding with intent.

Helen’s alleged victim was her controlling, abusive husband Rob. Her case was one of self-defence. The storyline in the Archers has brought much needed attention to the prevalence of domestic violence and the mechanics that operate to keep a victim in an abusive relationship: coercive control. This is a pattern of behaviour whereby an abuser seeks to curb their victim’s freedom in such a way that their sense of self is stripped away.

Back in reality, at the end of last week it was revealed that two thirds of domestic violence refuges are under threat of closure. This is simply unacceptable. Statistically, a woman exiting a violent relationship is 75 per cent more likely to be killed than those who stay.

As Archers listeners and indeed this government will be aware when it criminalised coercive control last year, leaving is very difficult.

Coercive control was the reason that those attending Lower Loxley’s New Year’s Eve ball in 2014 were struck by Helen’s frumpy new hairstyle and dress. They were not aware that Rob had chosen her outfit, eschewing her choice as too revealing.

Control can also be financial so that a victim has all financial decisions made for her. And it will almost always involve isolating a victim from family and friends, by manufacturing rifts and fissures in the victim’s support network.

One devastating method is “gaslighting”, a manipulation calculated to make a victim feel as though they are going mad. This allows the abuser to appear the reasonable party in the relationship. The term derives from a film in which the abusive husband deliberately dims the gaslights in the house but tells his wife that she is imagining it.

Social media and technology are yet more tools in an abuser’s playbook, whether by limiting access or using it to destabilise the victim.

The police need more training in the core and central themes of domestic abuse. Frankly, there is no point having an offence of coercive control if it is not understood by those having to put it into practice.

So what can lawyers do? Be slow to write off behaviour under any synonym for hysterical. Educate ourselves and others about the pernicious nature of coercive control and its important place in understanding domestic abuse. We must recognise that domestic abuse can exist in our high net worth individual’s relationships as well as those lower down the economic spectrum.

One last glance over the fence into Ambridge – what now of Helen’s safety after she has been cleared? She should be subject to a risk assessment and other support.

And what about Rob’s former wife, Jess, who initially refused to give evidence in Helen’s defence, fearing that the law would not protect her? Is her hesitancy about to be validated?

Gemma Lindfield is a senior-junior barrister at 5 St Andrew’s Hill chambers in London, and ambassador for the Sharan Project, aUK charity for vulnerable women

 
 
Tweet of the Day

"You will be taken from this place to a place of execution and ....be hanged until you are dead ' ? #thearchers Was that the ending?

Charonqc @Charonqc

 
 
Blue Bag

Solicitor general reassured by Archers jury

Nigel Havers may have attracted most public attention in the star-studded jury room deliberations on the fate of Helen Titchener, but the heroine of proceedings for one of the government’s law officers was Dame Eileen Atkins.

“Thank the Lord for Eileen Atkins,” tweeted Robert Buckland, QC, the Conservative MP for South Swindon and the solicitor-general.

He took to social media to praise the 82-year-old stalwart of stage and screen for portraying her jury member character with such gusto – and ultimately turning the tide away from a guilty verdict that would have seen Helen spending the next six years in a prison laundry rather than an organic farm shop in bucolic Borsetshire.

But Buckland, a tenant at 23 Essex Street chambers in London, who is a fairly regular tweeter, soon found that on social media you can’t get away with a bit of innocuous cheerleading. Others immediately challenged him over the picture portrayed by the BBC of “average juries”. If The Archers’ marathon episode on Sunday was a fair representation, said one, “then time to abolish them”.

What next for lawyer fans …?

Many lawyers and other listeners will have been scratching their heads in puzzlement at just how Dame Eileen’s character was able to turn the tide so abruptly in favour of Helen. One moment the best result it appeared she could hope for was a hung jury, the next, it’s a wham bam thank you ma’am not guilty verdict.

Cue grumblings from some observers that it was never a runner that the scriptwriting gods would send Helen for a spot of porridge – too great a risk of irreparably alienating middle England.

Far easier instead to pull a dramatic not guilty rabbit out of the hat and set up a potential police investigation of Rob, Helen’s cartoon villain husband, on rape allegations as well as a child arrangements court battle over their two children.

Lawyer interest in the programme has some time to run yet.

Gold medal trainee at Two Birds

Trainees are generally faceless drones at law firms – recognised by senior partners only when a cup of tea is required or when piles of photocopying (do law firms still have photocopiers? Ed) and a mountain of document review drudgery beckons.

But one trainee starting this month at Bird & Bird, a City of London law firm, is probably already fed up with the attentions of star-struck partners. Only a few weeks ago, Georgie Twigg was standing on a platform at the Rio de Janeiro Olympics with a gold medal hanging from her neck and God Save the Queen ringing in her ears.

Twigg is part of the Team GB ladies hockey team, which dramatically won the final in a penalty shoot-out against the Netherlands.

She was part of the bronze medal side at the London Olympics four years earlier and asked the Bird & Bird hierarchy if she could defer her training contract for mere four years so that she could train with the team as it was thought if they put in the effort they could trade up on the medal front by the time they hit Rio. Not many City law firms would entertain that idea, but “Two Birds” fancies itself as being a bit cutting edge and right-on, so the partners agreed.

Now Twigg – who has a law degree from the University of Bristol and did the legal practice course at the now defunct Kaplan Law School – is in for a dose of reality. She’ll be a novelty for a while, but soon it will be down to the daily grind of her first seat in the employment department.

What area would Twigg ultimately like to specialise in? “It's very early days,” she tells The Brief, “but I’d love to do a seat in sport.”

 
 
The Churn

A run down of the big partner and team moves this week

London mayor appoints silk as diversity tsar

London’s mayor, Sadiq Khan, has wheeled in a QC to be his diversity tsar. Matthew Ryder, QC, of Matrix Chambers in Gray’s Inn, will take the reins from next month as deputy mayor for social integration, mobility and community engagement.

Ryder, who was called in 1992 and who took silk six years ago, is described by Matrix as “an incredible all-rounder”, but his primary focus has been crime. He adds the deputy mayor title to an earlier recent appointment as part of the team led by David Lammy, the Labour MP, who is reviewing racial bias in the criminal justice system.

Commenting on Ryder’s appointment to his team, Khan said: “We have to strengthen the bonds between Londoners of every background and I believe that Matthew is the very best person for this important role.”

 
 
Closing Statement

Timely acquittal

Bastions of the rule of law they may well seem, but criminal courts are not themselves always crime-free zones, writes Gary Slapper.

Apart from perjury, crime committed in courts has included assault, theft, drunk and disorderly conduct, possession of unlawful weapons, gross indecency and use of class A drugs. And not all of that conduct was lawyers.

Some crimes have also been spontaneously hatched in court. The judge Sir John Silvester, recorder of London (1803-22), once tried a man at the Old Bailey for petty larceny. During the trial Sir John happened to ask what time it was, saying that he had forgotten to bring his pocket watch with him.

The defendant was acquitted of the larceny charge as there was insufficient evidence for a conviction. He then left the court, bolted to the judge’s house and asked for Lady Silvester.

The man introduced himself as a court messenger and said the judge sent his affections and requested that Lady Silvester should give him the watch to take to the judge.

The crime became apparent that evening when the judge returned home, though at what time he could not say without his watch.

Gary Slapper is global professor at New York University, and director of its London campus; twitter @garyslapper