Tag Archives: #solicitors

CONGRATULATIONS TO LNTV EXPERT PANEL MEMBER ANNE-MARIE HUTCHINSON OBE

Happy New Year to all our subscribers!

The team here at LNTV HQ would like to take this opportunity to  congratulate LNTV Expert Panel Member for the Family channel, Anne-Marie Hutchinson OBE (@lawabduction), a partner at London firm Dawson Cornwell (@Dawson-Cornwell), on being made honorary Queen’s Counsel.

Well deserved, and a great start to 2016!

https://www.gov.uk/government/news/queens-counsel-in-england-wales-2015-to-2016

http://www.dawsoncornwell.com/en/about_amh.html

http://www.lawcolmedia.com/family.aspx

http://www.lawcolmedia.com

ADVICE ON MARITAL AGREEMENTS

We were recently lucky enough to have Lucy Greenwood, a partner with the International Family Law Group, in the studio to share her knowledge and expertise of marital agreements (http://www.iflg.uk.com/portfolio/lucy-greenwood).  Lucy is also a member of our Legal Expert Panel for the Family channel, and we are delighted to have her on board, feeding in ideas for future Family channel topics for continuing professional development (http://www.lawcolmedia.com/%5Cfamily.aspx).  Lucy actually suggested we make this programme!

Here is a sneak peak of the on-camera interview we conducted with Lucy, ahead of the programme’s release on 25th January:

Interviewer: How best can a marital agreement address the issues of needs and fairness?

Lucy Greenwood: Well, this is the very difficult question that we face with every pre-marriage agreement.  For example, it’s commonplace to treat the marital home a little bit differently from any other assets, even if there has been some pre-acquired money going into that property. You’ve basically got to consider – at each stage of the marriage – is the person that’s leaving the marriage without as much money going to be able to meet their needs?  So obviously they’re going to have to have somewhere to live.  What is deemed reasonable for their needs – and when we hear the phrase ‘real needs’ which is another phrase about a discretionary test for needs – it’s very hard to assess.  So you look at the standard of living to some extent and you consider what a court would do if it were looking at the scenario without a pre-marriage agreement, and because it’s a compromise you would look to see what the lower end of that bracket that the court award would comprise.  And it’s those sorts of weighing up kind of decisions that you have to make, and there is no right or wrong answer. But if you don’t meet needs it’s pretty clear from the case law that there’s a great risk that the court will still intervene either partially or totally in the agreement.  But it mustn’t be forgotten that even if it does intervene, because you’ve got this agreement, it’s likely to calibrate the award that is made.  And so they are still very useful tools even today.

Interviewer: What common misconceptions do you find clients have in relation to foreign marital agreements or the enforceability and other jurisdictions of agreements entered into here?

Lucy Greenwood: Well, this is a very common myth.  For a start, many people think that they could only divorce in the country they married, which is obviously not true.  And similarly, they forget that it’s not actually where you enter into the marital agreement that counts, it’s where you are if and when the marriage breaks down.  And so what we tend to do is we will address which country somebody is most likely to live in and get advice from those countries as to what their rights would be. We have very many situations where clients will come into the office and say ‘it’s alright, we’ve got a community of property or we’ve got a separation of assets, property categorisation, property regime in a European country, so they can’t touch my assets on…’.  And we say unfortunately it doesn’t work like that in England, it’s nothing but a factor.  It’s just one of the many section 25 factors that we have to look at. And, of course, depending on the weight and the understanding and the disclosure and all of the fairness aspects around the creation of that agreement the court may or may not abide by that agreement, but many have a real shock when they come in and find that it didn’t really mean as much as they thought it did.  There’s also the issue of Brussels II legislation, and first in time to issue, which can’t be usurped by a marital agreement.  So this can have a very significant effect.  So even if you’ve got a marital agreement in a particular country if you don’t get first in time when it comes to issuing a divorce procedure there’s still a risk that another country, like England, might be looking at your French marriage agreement.  And, of course, there’s the maintenance regulation, and if you’ve got maintenance aspects in the pre-marital agreement, spousal maintenance I’m talking about, not child maintenance, but if you’ve got a spousal maintenance agreement there that’s a prior agreement and therefore you could find that different parts of the case are being dealt with in different parts of the world.

Interviewer: So what specific clauses should practitioners ensure that they draft into marital agreements where there’s a possibility that the couple may move abroad?

Lucy Greenwood: There are certainly no hard and fast rules in relation to this particular question.  You really have to look at the scenario that you’re faced with.  You need to consider whether you’re going to put in a sort of catch-all phrase to say that this agreement should be recognised around the world.  That’s not going to be enough, but it gives an indication.  You look at choice of law clauses and in relation to EU countries you can actually sometimes, if you’ve got a strong enough connection, actually choose the country’s laws which will apply to the pre-marriage agreement but, again, Brussels II can usurp that.  So there is nothing easy about looking at jurisdictional aspects in marital agreements.  And many people think that you can do one and it’s definitely going to be binding all round the world, it is not.  You really have to tailor it to the countries that are most likely to be the countries in which the parties are living and consider the factors and the pros and the cons of choosing a jurisdiction, if that’s what you’re trying to do, over being silent on that issue.

Interviewer: And what particularly public policy or religious issues might need to be taken into account?

Lucy Greenwood: Well, this is quite interesting.  Generally with pre-marriage agreements the consensus is that child maintenance should not be dealt with in a pre-marriage agreement or if it is it’s definitely something a court could review because it would be against public policy to bar the courts from doing that.  But there are other more perhaps less obvious ones when you’re dealing with certain countries.  So in countries, for example, like Singapore and Dubai where same sex marriages or even homosexual relations are not actually recognised or accepted or legal then you’re not going to be wanting to do an agreement or seek to uphold it in that country if it’s for a same sex couple.  But there are others that are not so obvious.  And, for example, adultery clauses are becoming something that’s been debated recently and some people are advocating where clients want to make a point that somebody should not benefit as much if they commit adultery, that should go into the agreement.  But, again, be cautious with places like Dubai where adultery, again, is illegal and the implications for your potential client of even having that word or the court learning that they’re getting less because of it could have very major implications for that client.  So it’s those sorts of factors, cultural factors, religious factors.  You might want to cover, for example, dealing with the Get in the Jewish pre-marriage agreement so that it’s clear as to how that process is going to be undertaken. Just those sorts of things.

Until next time…

http://www.lawcolmedia.com

NON-DELEGABLE DUTY OF CARE UPDATE

In June of this year we released programme 5909 in the Local Government channel: Non-delegable Duty of Care. Here’s a short clip from that programme: https://www.youtube.com/watch?v=0syB_RUaHXQ

The programme looked at non-delegable duty of care in the tragic case of Annie Woodland, a ten year old Basildon schoolgirl who suffered hypoxic brain damage after diving into the deep end of a swimming pool during a school swimming lesson.  The school did not have its own pool, and so had arranged for the swimming lessons to be carried out by a third party company.  As a result of her accident Annie brought a claim against the school, the preliminary issue to be decided being whether or not a non-delegable duty of care was owed by the school to her. Mr Justice Langstaff rejected the claim on the basis that there was no non-delegable duty owed. She appealed to the Court of Appeal and her appeal was rejected, the majority holding that the most important factor was that the school did not have control over the swimming lesson and over the place where the accident had taken place.  However the Supreme Court took a fresh look at the law and decided that a school does owe a non-delegable duty in respect of the care of its pupils. The swimming lessons were an integral part of the teaching function of the school and, in those circumstances, even though the school had delegated the performance of that duty to an independent company, which itself may have further delegated responsibility, either to employees or other sub-contractors, the duty remained that of the school and, therefore, if there was negligence on behalf of anybody who was involved in the delivery of that duty the school would retain responsibility.

Having established a non-delegable duty towards her, Annie went on to succeed in her civil claim based on the swimming teacher and lifeguard failing to properly supervise her, which caused a delay in her being spotted hanging in the water.  The judge said that the swimming teacher and the lifeguard should have noticed that Annie was drowning sooner than they did, and their actions “…fell far below the standard of care reasonable to be expected of a teacher…“.  Essex County Council would therefore be held liable for their negligence, however interesting an issue then arose as to whether it was just and equitable for the lifeguard (who was insured, whereas the swimming teacher was not) to indemnify the Council.

It was held that the swimming teacher was 2/3rds liable (she was in charge of the class) and the lifeguard was 1/3rd liable (she was on the opposite side of the pool to where the swimming lesson was being carried out).  The Court therefore stated that the lifeguard’s insurers should contribute 1/3rd of the Council’s liability to the claimant.  This amount is to be assessed at a later date (http://www.bailii.org/ew/cases/EWHC/QB/2015/273.html)

Our programme also considered the case of NA v Nottinghamshire County Council (2015) (http://www.bailii.org/ew/cases/EWCA/Civ/2015/1139.html), which concerned a claim brought by Natasha Armes who was born in 1977 and spent various amounts of time in foster care and residential care during her teenage years.  In connection with two particular periods of foster care, one for around one year, and one for around three/four months with Mr and Mrs B, Ms Armes alleged that she had suffered physical abuse at the hands of the foster carers and, in the case of Mr B, sexual abuse.  In order to succeed in establishing liability for what had happened in these foster placements, which was the most serious part of the case in terms of harm, she alleged that the local authority was vicariously liable for foster carers, and her claim on that ground failed, but she also alleged that the local authority owed her a non-delegable duty of care so that when she was placed with independent contractor foster carers and those foster carers assaulted her, the local authority was automatically liable for that negligence.  She also failed on this second issue.

The claimant then appealed against this decision, but the Court of Appeal have dismissed that appeal, and unanimously rejected the notion that local authorities could owe a non-delegable duty of care for foster parents.  The Court said this would be contrary to public policy, as such a wide duty would effectively impose strict liability.

http://www.lawcolmedia.com

Until next time…

MARKETING YOUR FIRM

We were recently lucky enough to have Sue Stapley, a solicitor and founder of reputation management firm Sue Stapley Consulting (http://www.suestapely.com/) in our studios to discuss how best to market your law firm. Here is a brief extract from that interview, which will be released in full as part of our programme ‘Marketing your Firm’ in the Practice Management & Compliance channel:

Interviewer: Now we all have occasions when we need to make a good impression in a short space of time. What exactly is a mini-pitch or an elevator speech as it’s sometimes known?

Sue Stapley: I think they are sort of interchangeable. My understanding – and I’m not an expert on succinctness – is that it is being able to explain – in one or two sentences at the most – precisely who you are or who the organisation you are representing is or what it does. The phrase ‘elevator pitch’ came from the Americans, of course, who said you should be able to describe your business in the time it takes to travel between floors in a lift or elevator. And the opportunities probably arise most often nowadays at receptions where, I don’t know about you, but I seem to spend probably far too much time standing with an empty glass in my hand in a crowded room talking about my business to other people. And one obviously wants them to remember what it was that one said in case, at some point in the future, they might find your services of use and need to be able to contact you. It is a very succinct statement of who you are and what you do, such that they can remember enough to come back to you if they want to.

Interviewer: So what do you think it should include?

Sue Stapley: The name, and if there’s anything that makes the name more memorable, use that. I’ve been criticised several times for being nothing like serious enough, but my own name is mis-spelt regularly and sometimes mispronounced, and I simply say if you think of shapely, Stapely will probably come to mind. It’s very arrogant but it works, they remember. And one sentence which you will probably need to actually physically write down and work on to get right until it trips off the tongue without your hesitating over it and without you being feeling embarrassed about it, but if you are a small niche practice that specialises in insurance claims then that’s how you want to be seen, and you would say ‘I’m with Seek, Grabbit and Run I’m in a small niche practice that specialises in insurance claims, we’re based in Norwich’. And that’s probably all that you want people to know. That’s enough for them to remember the name, you can make a joke of it if it’s a name that has some joke potential – to make it more memorable – they need to know where you’re placed and they need to know the sector of the business that you’re in.

Interviewer: Have you got any other tips for lawyers that might be thinking about putting together a pitch?

Sue Stapley: Just a few. I think the first and most important is make yourself impossible to dislike. Remember that the client or the potential client is making a choice about a person, a human being or a team of people. Secondly, never forget the support staff, even when you have to do the walk from the lift, which may be with the PA of the person who’s interviewing you, talk to them, be friendly, be nice, they may actually have a voice in the decision-making process so it’s worth being friendly to them as well. And the PA may be the one that’s making the appointments every time you go back into the building, and if she likes you and put in a good word for you it could be helpful. Another quick one is never forget to rehearse your presentation. Just because you’re skilful lawyers and expert in your field – and I would hope you all are – don’t assume that you can do a pitch without rehearsing. Actually put yourselves in the room, get some colleagues to role play the potential client and grill you, and make sure that you go through it clearly so that you know who’s going to say what at what point in the presentation and how. And then finally, follow up: after you’ve done your presentation, hopefully well and successfully, there’ll probably be several weeks delay while they’re seeing other people or considering, you may not hear at once, but the very same day that you’ve done the presentation I would recommend either sending an e-mail or making a phone call – whichever is appropriate – thanking them for their time, saying how much you enjoyed meeting them, maybe seeing their business if you had an opportunity to do that, and how much you’d enjoyed working with them. If there were any questions that you weren’t able to answer at the pitch let them have that information, whether it’s the name of a referee or two who will talk about you positively, or whether it’s a problem that came up that you couldn’t actually offer a solution in the meeting but you’ve had a chance to think about. That demonstrates, again, your enthusiasm for working with them, and that’s always very seductive.

A huge thank you to Sue for making the time to come and be filmed answering our questions, we know the finished programme will be a great one and useful to all those that watch it.
Until next time…

http://www.lawcolmedia.com

SEXISM IN THE LEGAL PROFESSION

It all started with a comment on a LinkedIn profile, and from that acorn, mighty oak trees seemingly started to grow.

On 8th September, Charlotte Proudman, associate tenant barrister at Mansfield Chambers, named Alexander Carter-Silk, senior partner of Brown Rudnick LLP, as someone who had sent her a message on business-oriented social networking site LinkedIn, which she deemed to be inappropriate.  The message, titled ‘PICTURE’ read:

Charlotte, delighted to connect, I appreciate that this is probably horrendously politically incorrect, but that is a stunning picture !!!

You definitely win the prize for the best Linked in picture I have ever seen

Always interest [sic] to understant [sic] people’s skills and how we might work together

Alex

Ms Proudman replied:

Alex

I find your message offensive.  I am on linked-in for business purposes and not to be approached about my physical appearance or to be objectified by sexist men.  The eroticisation of women’s physical appearance is a way of exercising power over women.  It silences women’s professional attributes as their physical appearance becomes the subject.

Unacceptable and misogynistic behaviour.  Think twice before sending another woman (half your age) such a sexist message.

Charlotte

Seeking an apology from Mr Carter-Silk, Ms Proudman also said she had contacted the CEO of Brown Rudnick LLP to complain, and would also be referring the matter to the Solicitors Regulation Authority.  Mr Carter-Silk commented “Most people post pretty unprofessional photos on Linked in, my comment was aimed at the professional quality of the presentation on linked in which was unfortunately misinterpreted.”

The internet then virtually exploded with people expressing their views, with some calling Ms Proudman’s retort ageist, and her “a twit“, “a silly little lady with an exaggerated sense of self-regard“, a “jumped up feminist” and “a stupid immature female“, and others calling Mr Carter-Silk “a twit“, “a sexist pig from another era“, “inappropriate“, and “a fool“.  And so the argument continued between those on either side of the debate.

And then, just as we thought the whole issue was about to cool, Lord Sumption gave an interview in the Evening Standard in which he said that rushing to achieve equal representation for women at the top of the legal profession could inflict “appalling consequences” on the quality of British justice.  He said that to avoid inflicting damage, those wanting equality would have to be wait, stating:

It takes time.  You’ve got to be patient…We have got to be very careful not to do things at a speed which will make male candidates feel that the cards are stacked against them.  If we do that we will find that male candidates do not apply in the right numbers.”  He continued “The Bar and the solicitors’ profession are incredibly demanding in the hours of work and the working conditions are frankly appalling.  There are more women than men who are not prepared to put up with that.  As a lifestyle choice, it’s very hard to quarrel with it, but you have to face the consequence which is that the top of the legal profession has fewer women in it than the profession does overall.

Comments such as these in the interview piece led to Ms Proudman writing an article expressing her concern at the comments:

His comments encapsulate his deepest fears that power vested in the old boys’ network could come under siege“.  Shadow Justice Secretary and former lord chancellor Lord Falconer also commented that hearing “such comments from one of our senior judges is deeply worrying, not least because the record on diversity is already poor.”

So let’s take solicitors as an example.  As at 2013, 51.4% of solicitors were male, and 48.6% female.  The overall proportion of female court judges is just over 25%.  It therefore seems that female solicitors in the legal profession are willing to put up with the “incredibly demanding” hours of work and the “frankly appalling” working conditions, but even worse, they are then not being given the opportunity to reach the highest potential of those careers.  Which raises the question, how patient do women have to be, Lord Sumption?

Until next time…

WHAT HAPPENED TO SUMMER…AND NEW GUIDELINES FOR ASSESSMENT OF GENERAL DAMAGES IN P.I. CASES

As we gaze out of the window at LNTV HQ this week we are slightly confused.  We are sure that back in June we were told that summer was officially starting, and we’ve been patiently waiting ever since.  We admit there has been the odd day of blistering heat, only to return to cloud, wind, rain and cold the very next day.  Today there were mutterings of extra layers being needed, and even a tentative suggestion that we might need to consider the possibility of turning the heating on.  This is early September, we have to remind ourselves, while scrutinising the calendar and zipping up our coats.  Perhaps there will be a late summer, a glorious few weeks in which to salvage something from what will otherwise go down in history as one of the wettest summers on record.  We can only hope.

However, our frustration at not seeing enough of the big yellow thing in the sky is happily distracted this week by news that the finishing touches have just been added to the 13th edition of the Judicial College Guidelines for the Assessment of General Damages in Personal Injury cases, and should be published later this month.  We feel a future programme topic in the air!  Thanks to friend of LNTV, Len South (on Twitter @rolypolyspaniel), for drawing our attention to it.

http://www.lawcolmedia.com

THIS WEEK IN THE STUDIO…RICHARD WILLIAMS, SENIOR POLICY EXECUTIVE AT THE SRA

This week we were lucky enough to be joined in the studio by Richard Williams, Senior Policy Executive at the Solicitors Regulation Authority, to talk about the future of Continuing Professional Development for our upcoming programme ‘SRA Competence Statement and Toolkit’, in the Practice Management & Compliance channel.

Here’s a sneak peak at part of Richard’s interview, before the programme’s release date:

Interviewer: And the key document in this is the Competence Statement, isn’t it?  And it’s a fairly extensive document.  Does it run the risk of being over-prescriptive?

Richard Williams: The Competence Statement really just articulates what all practicing solicitors need to do in order to do their job to the best of their abilities. But as an approach, our new approach to ensuring continuing competence is less prescriptive than the current requirement to undertake 16 hours. The 16 hours requirement is, in fact, a blanket approach, it applies to all solicitors, irrespective of their career, their experience, and also their role. With our new approach, solicitors can think about what they need to do in order to deliver a proper standard of service and meet their regulatory responsibilities.

Interviewer: So Principle 5 is what underlies all this, how do we interpret that in the light of the new CPD requirements and the Competence Statement?

Richard Williams: All solicitors have a regulatory requirement to deliver a proper standard of service, and this is articulated in Principle 5. The Competence Statement can help solicitors deliver this particular obligation, and there are two ways in which it does that. Firstly, the Competence Statement articulates what a solicitor needs to do to practice effectively. And, secondly, the Competence Statement in the context of our new approach can be used by solicitors to enable them to reflect on their practice and identify any learning and development they need to do in order to continue to practice effectively.

Interviewer: So how does the SRA believe it’s going to be using the Competence Statement in future?

Richard Williams: We use the Competence Statement as a key mechanism in order to allow us to ensure that the consumers of legal services are protected. It’s really important that solicitors do their job effectively and practice effectively, and the Competence Statement and our new approach to ensuring on-going competence enables us to do this in two ways. Firstly, solicitors have a regulatory responsibility to deliver a proper standard of service, and under our new approach to CPD they’ll have to reflect on the quality of practice in relation to the Competence Statement, and identify where they may have any learning and development needs.  As part of our Training for Tomorrow programme we’re also considering the introduction of an assessment framework. We will consult on this later in 2016. The point of the assessment framework will be to enable solicitors to demonstrate to us that they are competent at the point of admission to the profession, so in that way the Competence Statement will critical as part of ensuring that consumers and legal services are protected.

Interviewer: So some people might say that this looks very much like a box ticking exercise which, of course is what CPD was always criticised for. What would you say to them?

Richard Williams: Absolutely not. Our new approach is much harder than a solicitor attending a course towards the end of the CPD year to gain a specific number of hours. Solicitors will need to think really hard about what it is that they need to do in order to deliver a competent service and meet their regulatory obligations. As a regulator we take this really seriously. As a result, under our new approach all solicitors will be required to make an annual declaration that they’ve reflected on the quality of their practice. They’ve identified their learning development needs and addressed them, and we’ll monitor that.

That’s all for this week – a VERY happy bank holiday weekend to all our readers and subscribers!

http://www.lawcolmedia.com

BREAKING NEWS – LEGAL AID BOYCOTT SUSPENDED

This morning, Friday 21st August, on the 52nd day of the legal aid strike, lawyers decided to suspend their boycott following meetings with the Ministry of Justice ‘as a gesture of goodwill and recognising the importance of this engagement’.  Confusion surrounds the decision, as no offer has been made by the government to settle the dispute, or certainly no offer has been communicated, and many took to Twitter to register their anger.

Here’s the Law Society Gazette’s reporting of the boycott this week, leading to this morning’s announcement:

Firms notified of failed legal aid contract bids: http://www.lawgazette.co.uk/law/firms-notified-of-failed-legal-aid-contract-bids/5050594.article

Firms sounded out over withdrawal of legal aid bids: http://www.lawgazette.co.uk/law/firms-sounded-out-over-withdrawal-of-legal-aid-bids/5050619.article

Action day 51: PDS silks cover junior-level trials: http://www.lawgazette.co.uk/practice/action-day-51-pds-silks-cover-junior-level-trials/5050625.article

Lawyers suspend legal aid action: http://www.lawgazette.co.uk/practice/lawyers-suspend-legal-aid-action/5050643.article

Criminal Law Solicitors’ Association: http://www.clsa.co.uk/

London Criminal Courts Solicitors’ Association: https://www.lccsa.org.uk/

The Criminal Bar Association: https://www.criminalbar.com/

LEGAL AID, AND THE LONDON LEGAL WALK 2015

We all know how important legal aid is for those who desperately need legal assistance but cannot afford to pay for it.  As the legal profession’s boycott of legal aid continues, which comes in response to a further cut to legal aid and a reduction in the number of number of contracts for solicitors who provide 24-hour cover in police stations, we take a look back at a short video we made when staff from LNTV HQ and students and staff from The University of Law took part in the London Legal Walk 2015 to raise vital funds to continue legal aid services throughout the City, together with this week’s Law Society Gazette reporting of the strike:

LNTV HQ and The University of Law does the London legal Walk 2015:

The Law Society Gazette reports on this week’s continuance of the legal aid boycott:

Action day 42: London firms propose withdrawing bids: http://www.lawgazette.co.uk/law/action-day-42-london-firms-propose-withdrawing-bids/5050520.article

Action date 43: Gove to be briefed on savings ideas: http://www.lawgazette.co.uk/law/action-day-43-gove-to-be-briefed-on-savings-ideas/5050537.article

CBA chair tells solicitors: ‘Time to show your solidarity’: http://www.lawgazette.co.uk/law/cba-chair-tells-solicitors-time-to-show-your-solidarity/5050557.article

Action day 44: ‘alternative savings’ options revealed: http://www.lawgazette.co.uk/law/action-day-44-alternative-savings-options-revealed/5050565.article

Criminal Law Solicitors’ Association: http://www.clsa.co.uk/

London Criminal Courts Solicitors’ Association: https://www.lccsa.org.uk/

The Criminal Bar Association: https://www.criminalbar.com/