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The BILL of

MIDDLESEX The Official Journal of THE MIDDLESEX LAW SOCIETY

SPRING 2020

Artificial Intelligence Inside this issue:

■ Coronavirus: HMCTS & Law Society advice ■ Changes to the regulatory landscape

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Contents PUBLISHER Benham Publishing Aintree Building, Aintree Way, Aintree Business Park, Liverpool L9 5AQ Tel: 0151 236 4141 Fax: 0151 236 0440 Email: admin@benhampublishing.com Web: www.benhampublishing.com

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06 Officers 07 Coronavirus

ADVERTISING & FEATURES EDITOR Anna Woodhams

(Covid-19): Courts and tribunals planning and preparation

DESIGN & PRODUCTION MANAGER Lee Finney ACCOUNTS DIRECTOR Joanne Casey MEDIA No. 1652 EDITORIAL COMMITTEE Miles Sriharan Maralyn Hutchinson Professor Malcolm Davies Zulfiqar Ali Meerza

08 AI for Lawyers

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10 Star gazing

PUBLISHED SPRING 2020 © The Middlesex Law Society Benham Publishing Ltd.

13 Coronavirus

LEGAL NOTICE © Benham Publishing. None of the editorial or photographs may be reproduced without prior written permission from the publishers. Benham Publishing would like to point out that all editorial comment and articles are the responsibility of the originators and may or may not reflect the opinions of Benham Publishing. No responsibility can be accepted for any inaccuracies that may occur, correct at time of going to press. Benham Publishing cannot be held responsible for any inaccuracies in web or email links supplied to us.

(Covid-19): Guidance to conveyancers advising clients on house moves

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15 People, Parliament,

Executive & Judiciary

All views expressed in this publication are the views of the individual writers and not the society unless specifically stated to be otherwise. All statements as to the law are for discussion between members and should not be relied upon as an accurate statement of the law, are of a general nature and do not constitute advice in any particular case or circumstance.

COVER INFORMATION Artificial intelligence image by Gerd Altmann and used with permission under the Pixabay License.

14 AML – a selection of SRA perspectives

DISCLAIMER The Middlesex Law Society welcomes all persons eligible for membership regardless of sex, race, religion, age or sexual orientation.

Members of the public should not seek to rely on anything published in this magazine in court but seek qualified Legal Advice.

05 President’s Review

22 Domestic Abuse and Child Arrangements Orders

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23 Difficult lawyer-

client relationships

24 Client-Attraction

Secrets for Lawyers

Copy Deadline

34 Live Chat for solicitors

AUTUMN 27th September 2020 Anyone wishing to advertise or submit editorial for publication in The Bill of Middlesex please contact Anna Woodhams before copy deadline. Email: anna@benhampublishing.com Tel: 0151 236 4141

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4 The BILL of Middlesex


Introduction

President’s Review Spring 2020

I

am one month away from the end of my second year as President of MLS. I will be handing the Presidential chain of office to my successor at the AGM in April 2020. My first President’s column in September 2018 focused on challenges to the legal profession and the way we work. Fortuitously, the theme of the last Bill of my Presidency is Artificial Intelligence (AI), so it is therefore fitting that this column should also focus on the role of AI in the legal profession. Clever machines replacing workers has captivated and caused apprehension in equal measure for decades. In recent years, the pace of change and development in the world of technology has meant even the most luddite individuals can no longer ignore the advances that have been made. Some areas of law and legal services often consist of repetitive, collected information and a service which is delivered on a one to one basis that is, by its nature expensive. This has led to much debate and speculation by those who favour automation that in the near future, legal matters will mainly be dealt with by machines. This will greatly reduce costs and change the nature and structure of law firms as we know them. Under this model the systems will not only deliver automated tasks but they will self develop and improve as they perform the tasks. The question that comes to mind immediately is, will there really be such a total change in the legal profession as many are predicting? From research it seems AI in the legal sector is prominent in six main areas*: ■ Due diligence – Litigators perform due diligence with the help of AI tools to uncover background information. Contract review, legal research and electronic discovery is included here. ■ Prediction technology – An AI software generates results that forecast litigation outcome. ■ Legal analytics – Lawyers use data points from past case law, win/loss rates and a judge’s history to be used for trends and patterns. ■ Document automation – Law firms use software templates to create filled out documents based on data input. ■ Intellectual property – AI tools guide lawyers in analysing large IP portfolios and drawing insights from the content. ■ Electronic billing – Lawyers’ billable hours are computed automatically.

Our new website is now

A distinction has to be drawn ‘hard’ and ‘soft’ AI. The aim of hard AI is to work in the same way as the human brain, which involves being flexible, adaptive and perceptive. Soft AI reproduces defined set tasks which enables the output of soft AI to be easily measured. Currently all working forms of AI found in the legal sector are soft AI. Researchers are keen to emphasise that we are a long way from seeing ‘strong’ AI systems capable of replicating human thought. AI will not be able to deal with situations that require imagination, inspiration or value judgments. AI is being used on aspects of legal behaviour we can reproduce well enough to make the lawyer’s life easier and tasks faster to complete. Aided by technology, lawyers can be more creative and prolific. It is therefore with a great sense of satisfaction that two years after my first President’s column, I am able to maintain my position that embracing AI by law firms can only be a positive thing. ■

Alberta Tevie

President Middlesex Law Society *Edgar Alan Rayo, February 2020.

www.middlesexlawsociety.org.uk

For Law Society Updates on the Corona Virus, please visit: https://www.lawsociety.org.uk/support-services/advice/articles/coronavirus-advice-and-updates/ The BILL of Middlesex 5


Officers

OFFICERS FOR 2019/20

President ALBERTA TEVIE Sriharans Solicitors 223 The Broadway, Southall UB1 1ND 020 8843 9974. DX 119583 Southall 3 Email: info@sriharanssolicitors.co.uk Vice President MILES SRIHARAN Sriharans Solicitors 223 The Broadway, Southall UB1 1ND 020 8843 9974. DX 119583 Southall 3 Email: miles.sriharan@sriharanssolicitors.co.uk Honorary Secretary MAURICE GUYER Vickers & Co. 183 Uxbridge Road, Ealing W13 9AA 020 8579 2559. DX 5104 Ealing Email: mguyer@vickers-solicitors.co.uk Honorary Treasurer ANANDAKRISHNAN S. NAIR Sriharans Solicitors 223 The Broadway, Southall UB1 1ND 020 8843 9974. DX 119583 Southall 3 Email: anandakrishnans.81@gmail.com COUNCIL MEMBER FOR THE MIDDLESEX AREA Central & South Middlesex Michael Garson Kagan Moss 22 The Causeway, Teddington TW11 0HF 020 8977 6633. DX 35250 Teddington Email: michael.garson@kaganmoss.co.uk

COMMITTEE MEMBERS

PAST PRESIDENTS

Past President ARIYA SRIHARAN Sriharans Solicitors 223 The Broadway, Southall UB1 1ND 020 8843 9974. DX 119583 Southall 3 Email: info@sriharanssolicitors.co.uk

R Garrod, J A S Nicholls, R C Politeyan, J Aylett, K Goodacre, H J B Cockshutt, W Gillham, L Lane Heardman, D Grove, L A Darke, C Beety, L E Vickers, H Hodge, E G B Taylor, A A M Wheatley, A H Kurtz, M J S Doran, H B Matthissen, G Parkinson, HHJ R D Connor, A Bates, J J Copeman-Hill, D B Kennett-Brown, S B Hammett, F A Shakespear, HHJ P E Copley, A M Harvey, H R Hodge, G R Stephenson, B S Regler, W J C Berry, AS Atchison, L M Oliver, S W Booth, D D P Debidin, R E J Hansom, E H Lock, A Taylor, N Desor, M Hutchinson, M Guyer, R S Drepaul, A Sriharan, M Fernandes, A Darlington, S Chhokar, M Crowley, M Davies, S Hobbs, R Sriharan, S Scott Hunt, D Webb, G Kharaud, A Sriharan.

Professor Malcolm Davies Retired Professor University of West London Law School c/o Oxford and Cambridge Club 71 Pall Mall, SW1 5HD 020 7930 5151 Email: profmjd1@gmail.com Aneeqa Ali Lecturer in Law/ Legal Practice University of West London St Mary’s Road, Ealing W5 5RF 020 8231 2403 Email: aneeqa.ali@uwl.ac.uk Maralyn Hutchinson Kagan Moss 22 The Causeway, Teddington, Middlesex TW11 0HF 020 8977 6633. DX 35250 Teddington Email: maralyn.hutchinson@kaganmoss.co.uk

PARLIAMENTARY LIAISON Michael Garson

Renuka Sriharan Sriharans 223 The Broadway, Southall UB1 1ND 020 8843 9974. DX 119583 Southall 3 Email: info@sriharanssolicitors.co.uk Liz Pugh Head of the Legal Practice Course University of West London St Mary's Road, Ealing W5 5RF 020 8231 2018 Email: liz.pugh@uwl.ac.uk Zulfiqar Ali Meerza Serious Fraud Office (SFO) 2-4 Cockspur Street, London SW17 5BS 020 7084 4890 Email: zulfiqar.meerza@sfo.gov.uk Zahra Asghar Asghar & Co 112-114 The Broadway, Southall UB1 1QT 020 8843 0010. DX 119576 Email: zasghar@asgharandco.com Caroline Golden Goldens Solicitors 343 Rayners Lane, Pinner HA5 5EN 020 8429 8282. DX 48006 Rayners Lane Email: c.golden@goldenslaw.com

www.middlesexlawsociety.org.uk 6 The BILL of Middlesex


Spotlight On

Coronavirus (Covid-19): Courts and tribunals planning and preparation – from HM Courts & Tribunals Service & Ministry of Justice HMCTS RESPONSE TO CORONAVIRUS OUTBREAK During this unprecedented public health emergency, we’re working hard to keep our justice system functioning. We’re focusing on priority cases, changing working practices and introducing new procedures to minimise risks to the judiciary, staff and all those who use our courts and tribunals. Please see our daily operational summary on courts and tribunals during the coronavirus outbreak to get the latest information about what is happening across HMCTS. Any changes to individual hearings will be communicated directly to those affected, usually by email and/or phone. PRIORITY COURTS DURING CORONAVIRUS OUTBREAK A network of priority courts will remain open during the coronavirus pandemic to make sure the justice system continues to operate effectively. The work of courts and tribunals will be consolidated into fewer buildings, maintaining the safety of all in the courts and in line with public health advice. These temporary changes, designed in partnership between HMCTS and the judiciary will help maintain a core justice system focused on the most essential cases. From 30 March 2020, we will have 157 priority court and tribunal buildings open for essential face-to-face hearings. Our court and tribunal buildings are divided as follows: 157 open courts – these buildings are open to the public for essential face-to-face hearings 124 staffed courts – staff and judges will work from these buildings, but they will not be open to the public 89 suspended courts – these courts will be temporarily closed Check if the court or tribunal you plan to visit is open using the tracker: Courts and Tribunals tracker page and list.

best possible use of the equipment currently available; and are working nonstop to update and add to that. Some hearings, the most obvious being jury trials, cannot be conducted remotely. COMING TO COURT OR TRIBUNAL DURING THE CORONAVIRUS OUTBREAK The Government has announced that it considers those essential to running the justice system as key workers and unless you have heard from us or you are self-isolating based on Government and NHS advice you should continue to attend the court or tribunal. All court and tribunal users are reminded you should read the latest information about prevention, treatment, travel and staying at home. These include but are not limited to witnesses, those attending for jury service, defendants, professional courts users and justice system partners. OUR COURT AND TRIBUNAL BUILDINGS DURING CORONAVIRUS We know that people will be particularly concerned about hygiene at present, and though the Government advice is that concentrating on hand cleaning is the most important measure, we are putting extra effort into court cleaning. Our buildings are cleaned every day and we respond swiftly to complaints about poor hygiene. We are monitoring our hand washing facilities to ensure swift maintenance action if needed but, if you see something of concern, please let the court know so they can put things right. KEEPING UP TO DATE WITH THE IMPACT OF CORONAVIRUS ON COURTS AND TRIBUNALS For further information, we will communicate changes to the operational running of the courts and tribunals on our website: https://www.gov.uk/guidance/coronavirus-covid-19-courtsand-tribunals-planning-and-preparation ■

TELEPHONE AND VIDEO HEARINGS DURING CORONAVIRUS OUTBREAK We’re increasing use of telephone, video and other technology to continue as many hearings as possible remotely. We will make

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AI for Lawyers A

rtificial intelligence is widely thought to be something related to robots which are set to replace humans in the future. However, they are already part of a lawyer’s day to day life. Artificial Intelligence or more commonly known as “AI” are tools which help us deal with today's times. They are the digital assistant ‘Siris’ or ‘Bixby’ in your smart phones and also produce the ‘recommendations’ in your Amazon shopping and entertainment accounts. Artificial intelligence is defined as “the ability of a digital computer or computer-controlled robot to perform tasks commonly associated with intelligent beings”. The term is frequently applied to the project of developing systems endowed with the intellectual processes characteristic of humans, such as the ability to reason, discover meaning, generalise, or learn from past experience.i In their report of session 2017-19, the House of Lords Select Committee on Artificial Intelligence stated that AI is a tool which is already deeply embedded in our lives. The prejudices of the past must not be unwittingly built into automated systems, and such systems must be carefully designed from the beginning. Access to large quantities of data is one of the factors fueling the current AI boom. We have heard considerable evidence that the ways in which data is gathered and accessed must change, so that innovative companies and academia, have fair and reasonable access to data, while citizens and consumers can protect their privacy and personal agency.ii

8 The BILL of Middlesex

In the past, legal practice has been largely shielded by the incursion of automation and artificial intelligence even though the ways legal professionals process and disseminate data has evolved with advent of new technologies, the fundamentals remain the same. The practice of law is not immune from new technological advances and the impact of data driven analysis. It is being assaulted by the onslaught of sector specific AI applications with increased processing power and more effective algorithms. AI also known as augmented intelligence or cognitive computing is capable of being used to perform day to day functions more cheaply, faster and effectively. AI is now being used in the following ways by legal professionals: Practice Management and Billing: Legal Practice management software is a form of AI which helps lawyers to automatically compute their billable hours. These programmes record time on each matter and automatically produce invoices at the end of the set time period. Prediction Technology: Possibly the most advanced of the currently used AI which uses software to search documents, decide on their relevancy and rank them. A basic training is provided as the criteria is entered and the algorithm works its way through. AI then generates results that predict the outcome of litigation as they are mainly used in pre-litigation planning. The AI driven software analyses previous cases, judgements and similar. It analyses data relating to costs awarded, settled cases, appeals outcomes and judgements.


Spotlight On

Contract Review: AI analyses legal contracts such as leases and other commercial documents provided to it and checks them against legislation. Not unexpectedly, this process is more accurate and faster than human lawyers. There are hybrids in AI contract review which fall into two main product varieties the first of which is Volume Contract Review. Here the objective is the analysis of a large number of legal documents to highlight specific legal issues and located anomalies which may require further legal attention. Contract Assistance is mainly useful for non- lawyers who need to understand a long technical document e.g. a 50 page procurement contract. It also signals the likely addition of clauses to meet standard internal rules/practice. Legal Data research: The popular online databases like Practical Law and Lexis Nexis regularly improve their offering to support lawyers find the relevant information on cases, documents and different aspects of law. Other software helps lawyers form a strategy based upon previous outcomes in similar cases. Chatbot Lawyers: Services such as Rocket Lawyer apply elements of document assembly to help individuals and businesses form their own legal documents, without having to instruct a lawyer. Chatbot-style tools can also provide access to basic legal assistance, such as DoNotPay, which helps people appeal parking fines. Voice recognition: Digital dictation has improved dramatically and a host of virtual assistants such as Siri and Cortana can now carry out various functions, such as booking appointments and searching through documents, through voice alone.iii ISSUES WITH AI Lawyers and researchers who adopt AI should be aware of potential issues when automating - here are some of the issues. Issues with Impartiality: AI systems are basically a set of algorithms which may bring in the biases and different assumptions of the engineers employed in creating them so it is not surprising that not all AI systems produce the same results. Even law-makers are starting to acknowledge the implications of AI biases. For instance, the 2016 EU General Data Protection Regulation (GDPR) recognises the effects of algorithmic decision-making on the “fundamental rights and freedom of natural persons” and to address the issue of potential AI abuses. Recital 71 of the Regulation even speaks of the implementation of “technical and organizational measures” that “prevent, inter alia, discriminatory effects on natural persons on the basis of racial or ethnic origin, political opinion, religion or beliefs, trade union membership, genetic or health status or sexual orientation, or that result in measures having such an effect”. EU Data Protection Regulation seems to prohibit processing data on the basis of membership to special categories so companies operating in the EU will have to utilise algorithms that do not take into account characteristics such as gender, race or religion.iv Predictions gone wrong: AI systems risk arriving at a conclusion based on incorrect inferences. Predictive systems may be flawed due to incorrect assumptions where for example the system may correlate something risky when it may be related to Art or any personal interest of the subject. There are issues where the users overestimate the predictive capacity of the AI and this leads to error.

Unpredictability: Artificial Intelligence systems may be unpredictable due to an external input or because of the internal structure. AI is now capable of self-teaching complex tasks which earlier were seen as impossible which include deceptive capabilities of humans. So, when systems capable of selflearning are exposed to external inputs the results can be unpredictable and even whimsical. CONCLUSION Lawyers are keen to update with new technological developments so they save time on routine processes and improve accuracy by limiting human error. However, accountability issues also need to be considered and discussed with the AI providers and sufficient protective measures put in place. The duty falls on the system developers to ensure that the AI decision making functions align to human values and that AI-driven systems conform to current legal and ethical standards. Finally, before fully integrating into AI, consider the following questions: ■ What are the barriers to its use and what efficiencies, or cost benefits can be obtained through its deployment? ■ What are the ethical, legal, regulatory and compliance bases on which AI makes decisions? ■ And is the decision making consistent, fair and transparent for those who are impacted by such decisions? ■ How can bias in decision making be minimised? ■ How will liability be allocated and what are the types of loss that might be suffered when AI causes damage by operating outside its parameters? ■ Can liability for loss or damage caused by AI be insured against? ■ What role will AI have on the impact of your firm’s intellectual property (IP) strategy? And who will be liable if AI infringes a third party’s IP?

Anandakrishnan S. Nair Honorary Treasurer Middlesex Law Society

 https://www.britannica.com/technology/artificial-intelligence AI in the UK: ready, willing and able https://publications. parliament.uk/pa/ld201719/ldselect/ldai/100/100.pdf iii https://www.lawsociety.org.uk/news/stories/six-ways-the-legalsector-is-using-ai/ iv https://www.cambridge.org/core/journals/legal-informationmanagement/article/whats-inside-the-black-box-ai-challengesfor-lawyers-and-researchers/8A547878999427F7222C3CEFC3C E5E01/core-reader#en38 i

ii

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Legal News

Star gazing Michael Garson outlines some of the key features of the new regulatory environment, following the introduction of the new SRA Standards and Regulations

I

n November 2019 , the Solicitors Regulation Authority (SRA) introduced the new SRA Standards and Regulations (STaRs), replacing the SRA Handbook and Code of Conduct 2011. The move to ‘principle’- or ‘risk’-based regulation offers increased choice, but also increases uncertainty and risk for practitioners and the public. The latest iteration streamlines the structure and wording of aspects of the old code, but the underlying obligations remain. The new SRA Code of Conduct for Solicitors, RELs and RFLs (referred to here as the CfS) and SRA Code of Conduct for Firms, along with the SRA Accounts Rules, Authorisation Rules and Enforcement Strategy, are shorter overall, and place increased emphasis on integrity and professional standards of conduct. This article offers thoughts on key changes brought in by the STaRs, and on the wider environment for conveyancers, with reference to the new CfS. Client care In order to maintain professional standards in conveyancing, there are key elements that are paramount. I suggest that service, advice and probity remain central pillars. Although it is too early to judge whether the STaRs will mark a significant shift in the way we conduct conveyancing, it is nonetheless a useful exercise for firms to overlay their existing processes against the new regulations to see where efficiencies can be won. In terms of service, many clients clearly now prefer to use email, text and telephone. This poses challenges in terms of the security of transmission and storage of data, and also requires communication skills to ensure that advice is understood by the client. Not all clients are able to access or choose to use modern devices in the same way, even when there are no compatibility issues. Every solicitor must take responsibility to ensure that their client care not only avoids complaints, but is also effective and in the client’s best interests.

“Conveyancing has long held the record for the highest number of complaints to the Legal Ombudsman and claims under professional indemnity insurance” 10 The BILL of Middlesex

Effective client care does not rest on fixed requirements, but rather the shaping of service according to client needs. While a comprehensive letter at the outset of a matter will remain important, that may not be sufficient to maintain a relationship that clients will value. Quality of advice Competent advice is a key to client care and retention, as well as being a core element of compliance (see sections 3.1-3.5 of the CfS). Quality of advice rests upon a reliable system for gathering relevant data and ensuring that once work has been allocated according to capabilities and resources, self-management or supervision is effective to deliver competent work. The range of potential issues in conveyancing demands specialist knowledge at certain stages, together with an understanding of regulatory implications and the risks to be mitigated. Risks are wideranging, from money laundering, stamp duty land tax liability, conflicts of interest and cyber-fraud, and can emanate from clients, counterparties or other third parties, as well as from the transaction itself. Section 2 of the new CfS sets out the requirement for suitable governance, a system of controls, and record keeping. Procedures proportionate to the size of the business will be needed to satisfy insurers as well as regulators. In well-managed firms, the risks specific to carrying out conveyancing will be managed through training and systems that identify potential issues, such as defects of title, planning, onerous leases, or developments with more complex service arrangements and multi-party commercial contracts that need greater time and consideration. Probity, claims and losses Probity may be taken for granted by clients, but poses the most serious threat to practitioners. There are multiple points of risk, and threats can be internal as easily as external. Conveyancing has long held the record for the highest number of complaints to the Legal Ombudsman and claims under professional indemnity insurance (PII). The largest claims will be from total loss of consideration, either through a failure to account to a seller or lenders, or from aggregation of claims upon default or repeat errors in advice on leases, a scheme or development.


Legal News

It has always been prudent to maintain a central register of undertakings, as well as a record on each file. However, the active monitoring by senior managers of the central register and the total amount outstanding, and being aware of how long each undertaking has been outstanding, are what can make a difference. A review of Solicitors Disciplinary Tribunal cases arising from breaches of the SRA Accounts Rules suggests that problems commonly arise in firms where client accounts are not systematically reconciled within a short time after completion. Firms should pay close attention to this. Specific changes In addition to the introduction of ‘freelance’ solicitors and solicitors offering non-reserved legal services, there are specific changes to consider. One of the most important is the clear requirement for solicitors to keep “professional knowledge and skills” up to date. This is placed upon each solicitor individually (section 3.3) and, where a solicitor manages or supervises others, they remain accountable for the work and must supervise effectively (3.5) – easier said than done. The new standards on conflicts and confidentiality are short (see sections 6.1 and 6.2), but assisted by new SRA guidance (tinyurl.com/r4ya6r3). The omission of the indicative behaviours from chapters 3 and 4 of the 2011 code concerning acting on a mortgage will leave many conveyancers scratching their heads. However, the previous guidance remains relevant, and it is unlikely that firms would wish to adopt a radically different procedure from their approach under the 2011 code. There are changes to reporting requirements, which are important for both compliance officers and solicitors. Solicitors must now report to the SRA on any matter that could be capable of amounting to a serious breach of regulatory arrangements by anyone (7.7). This duty can be satisfied under section 7.12 with a report to the compliance officer and belief that they will make the notification to the SRA. This, of course, assumes that the compliance officer agrees that the matter does need to be reported. Guidance to clarify the position was issued in November 2019 (tinyurl.com/vmroctt). Another new provision is section 7.11, which requires that a client must be given a full and complete explanation in the event that “things go wrong”, but also permits solicitors to “put matters right”. This may settle the doubt about firms continuing to act in order to remedy mistakes which arose from the regulatory settlement SRA v Howell-Jones LLP (case no. 11846-2018). The position is clarified in a guidance note published in November 2019 (tinyurl.com/u9wev9h). Professional indemnity insurance To widespread relief, the SRA announced in December 2019 that it would not be taking any further the planned review of PII financial protection. This means the SRA Indemnity Insurance Rules and the minimum level and minimum terms and conditions (MTCs) of the policy cover are retained, alongside the relatively new obligation introduced in 2016 to maintain “adequate and appropriate” PII. The SRA has produced guidance (tinyurl.com/vygwm8x) which provides a short overview of some of the factors to be considered when assessing what level of insurance is needed for cover to be “adequate and appropriate” for a solicitor carrying out reserved activities as a freelancer. There is a concern that some commercial insurance policies will not give the same breadth of cover as the MTCs, and potentially result in loss of protection for solicitors and clients.

The topic is relevant for all regulated practices, as PII must be maintained at a level suitable for the practice and the business conducted, irrespective of the compulsory minimum. The value of single transactions has risen to well above the minimum in some parts of the country, and no assumption can be made that all claims will be for less than the £2m or £3m minimum. Since MTC policies are made on a ‘claims made’ basis, it is not only the risk of claims from current work that need to be considered, but also claims that could arise from past years and from types of work no longer carried on by the practice, as well as the consequences of possible aggregation of claims by insurers. The SRA guidance does not perhaps fully explore all aspects of this question, so firms should regularly and objectively review their exposure to risk, particularly from work done in the past, and to be aware there is a risk of aggregation. The PII market has tightened and some players are leaving it, which makes it even more important for firms to demonstrate that they have taken steps to minimise exposure to the risks insurers consider the most important. Fraud may result in a total loss of sale proceeds to the client (as in Dreamvar); there are also cases such as Godiva Mortgages Ltd v Travelers Insurance Company & Willmett Solicitors [2012] EWHC 3615 (Comm), where the failure to pay off loans to third parties can present very large claims. Cyber-fraud, whether it arises from weakness at the client’s end or internally at a firm, can result in large claims, and may cause losses outside the scope of the standard policy. While the use of a third-party managed account to manage client account may, in theory, outsource the day-to-day operation of the account, the practical implications and cost of organising and monitoring such an account may not give rise to a net saving of insurance premiums or other accounting costs.

“Deciding whether a suspicion is reasonable or ‘fanciful’ may be challenging where there are no rules or objective yardstick. What one person may regard as high risk, another may not” Money laundering compliance In March 2019, the SRA reviewed the money laundering compliance of 400 firms. Some 21% were found not to be compliant, and many others were criticised for delivering risk assessments considered to be of poor quality. As a result, the SRA has now written to around 6,500 firms, requiring them to confirm that they have carried out a firm-wide assessment of risk, as required under the Money Laundering Regulations 2017 (MLR 2017). There is some confusion, and often divergent approaches within firms, regarding the multiple requirements of modern-day anti-money laundering checks. That could be partly because there are so many elements to the regulations, and while almost everyone can understand the broad principles, the detail is harder to apply in practice. It is for the senior managers together with the money laundering reporting officer to establish clear policies and training for the business. Deciding whether a suspicion is reasonable or ‘fanciful’ may be challenging where there are no rules or objective yardstick. What one person may regard as high risk, another may not. Here, the SRA resources, updated in November 2019 and January 2020, are helpful (see tinyurl.com/ssq9dcq). Continued on next page

The BILL of Middlesex 11


Legal News

Continued from previous page As well as carrying out the firm-wide assessment, which will be different for every firm, each will need to make an assessment at the start of and during every conveyancing transaction. It is important to keep a record of the assessment for each matter, and of any change if new facts emerge. The process may appear of little relevance, for example, on the replacement of one family residence for another. This will, for most firms, appear to be a low-risk case where money laundering problems are not likely, but each firm must risk-assess its position in relation to the wider environment and specific facts of the case – including client profile and borrowings, location and price.

SRA consults on minor changes to Principles for Qualified Lawyers

In situations where solicitors have accepted money into client account but there is no legal service provided, this has been be viewed as serious non-compliance. Client accounts must be used only for delivery of services regulated by the SRA, and not used to provide banking facilities (SRA Accounts Rules, section 3.3).

The SRA is consulting on minor changes to exemptions for qualified lawyers who are seeking admission through the new Solicitors Qualifying Examination (SQE) once it is introduced in Autumn 2021, subject to Legal Services Board approval.

The 5th Money Laundering Directive and the resulting Money Laundering and Terrorist Financing (Amendment) Regulations 2019 came into effect from 10 January. There is no change to the underlying principles of the MLR 2017, but there is an extension of scope: regulated persons now include, among others, art dealers, letting agents where rentals exceed 10,000 per month (lettings agents which also operate as estate agents were already within scope), and cryptocurrency dealers. However, the greater impact is likely to be from the requirements for checking the beneficial ownership of companies and trusts, and reporting to Companies House any discrepancies with the Persons with Significant Control register.

Some qualified lawyers – lawyers who have qualified in a jurisdiction outside England and Wales or qualified as a barrister - depending on their level of experience and knowledge, may be able to get either a full or partial exemption from taking the SQE2 assessment.

The regulations also extend the definition of “tax adviser” so that solicitors providing support with tax matters, even using accountants, will now need to apply risk assessment and reporting obligations in such matters where they are not already treated as within scope. Changes to requirements for the registration of trusts are extended by the 5th Directive, and new regulations are expected so that these measures are brought into effect before the end of March 2020. The requirement for registration of all UK express trusts with HM Revenue & Customs, regardless of whether there is a taxable activity, will affect many property and probate practitioners. All in all, there is much to ensure that conveyancers have plenty of new additions to their daily task lists in 2020. ■

Michael Garson Kagan Moss & Co.

Michael Garson is Managing Partner of Kagan Moss & Co, a member of the Property Section and Professional Indemnity Insurance committees, and chair of the Professional Standards and Ethics Committee.

The revisions provide assurances that qualified lawyers who may be exempt from all or part of the SQE2 assessment have the necessary language knowledge to practise as a solicitor. The proposed changes include: ■ removing the requirements for qualified lawyers seeking an exemption from the SQE to be from a jurisdiction the SRA recognises. The SRA’s focus will be on the qualification and experience of the individual applicant. ■ making clear that qualified lawyers can demonstrate their language knowledge in either Welsh or English. ■ clarifying that qualified lawyers who are partially exempt as well as fully exempt from the SQE2 must demonstrate their English or Welsh language knowledge through a range of approaches. The principles also apply to lawyers regulated by another approved legal services regulator in England and Wales, such as chartered legal executives, licenced conveyancers or barristers. Julie Brannan, SRA Director of Education and Training said: “The public needs to be able to trust that a solicitor, wherever they have trained, has the right skills, knowledge and competence to practise. Our proposed revisions mean that we will be in the right place to gain those assurances for qualified lawyers, ready for the planned implementation of the SQE in 2021.” The consultation runs until 8 May 2020. ■

12 The BILL of Middlesex


Spotlight On

Coronavirus (Covid-19): Guidance to conveyancers advising clients on house moves – from The Law Society This guidance should be read with the government advice on home moving. This includes specific advice to conveyancers. You should note that, ‘prioritising the health of individuals and the public must be the priority.’ Nothing in this guidance should be read as contradicting that advice. The government has made clear an overall direction of travel. Home moves into occupied properties should only take place where contracts have already been exchanged and it has proved impossible for the parties involved to agree a deferral. You should encourage your client to agree an appropriate deferral and only advise them to proceed if that has proved impossible. The police emergency powers are disapplied only for critical home moves. Moves into unoccupied properties may continue, subject to the points below. When moves occur, they must do so in a way which takes account of the guidance currently in force from Public Health England and Public Health Wales. You should advise and help your clients to make themselves aware of the requirements applicable at the time they’re looking to move. It’s important to try and avoid allegations, however unjustified, that the conveyancing profession is encouraging its clients to carry out transactions against the spirit as well as the letter of government requirements. However, once you’ve provided advice about deferring the transaction and the client or clients instruct you in writing to continue to complete the contract then, if it’s legally possible to do so, you must follow your client’s instructions. The response to the coronavirus epidemic is, and will continue to be, fast changing. Conveyancers need to keep up to date with guidance as it evolves and changes with health advice. It is not possible for this guidance to cover every eventuality, despite our best endeavours. We hope that you’ll use your common sense in applying it and will always bear in mind the overall objectives of government policy in this public health emergency. AMENDING EXISTING CONTRACTS The sector trade and representative bodies including, the Law Society, Society of Licensed Conveyancers, Conveyancing Association, CILEx and Bold Legal Group, have worked together to agree the outline of a process for deferring a completion date. As always, every case should be treated on an individual basis and any clauses or processes suggested should be amended and tailored to those individual needs.

Once all parties have agreed to defer the completion date, in order to comply with s.2 of the Law of Property (Miscellaneous Provisions) Act 1989, conveyancers should exchange a written agreement to vary the contract. To avoid contamination through a physical document, the parties will need to either e-sign the agreement to vary the existing contract or authorise their conveyancer to sign as agent on their behalf. This will require a formal exchange process. You should make it clear that there is not an intention to create a new contract; only an intention to vary the existing contract. Conveyancing Quality Scheme members should effect exchange under one of the Law Society’s formulae for exchange. Others may do so too, or may effect exchange in another way. In chains of transactions it may be easier to use the formulae. The undertakings will need to be altered to confirm that the original document will be sent when the coronavirus COVID-19 restrictions are lifted. Before exchange of the agreement effecting the deferred completion date, conveyancers should ensure their clients understand the benefits and risks and are advised in accordance with their own circumstances. The following advice may be relevant but this is not intended to provide an exhaustive list of the potential circumstances which might arise. MORTGAGES While generally lenders have agreed to extend the mortgage instructions for three months you should establish whether any formal confirmation is necessary and if the lender to provide it. SEARCHES AND COSTS Remember that your normal obligations apply to your client and lender client and you should consider prior to the eventual completion whether you will need to refresh searches. As always, you have a duty to advise clients of the potential for additional costs involved in managing their transaction whether those are your own costs or additional disbursements. KEEPING UP TO DATE WITH THE IMPACT OF CORONAVIRUS ON MOVING HOUSE For further information, we will communicate changes on our website: https://www.lawsociety.org.uk/support-services/ advice/articles/guidance-to-conveyancers-advising-clientson-house-moves/ ■

The BILL of Middlesex 13


Legal News

AML – a selection of SRA perspectives F

irms that are within scope of the Money Laundering, Terrorist Financing and Transfer of Funds (Information on the Payer) Regulations 2017 ('the money laundering regulations') must have a written firm-wide risk assessment in place. This has been a legal requirement since 26 June 2017.

We expect firms to be compliant in this area and have provided a variety of resources to help firms draft an effective firm risk assessment: A number of firms stated that they would never act for PEPs. This suggests that are not aware that the definition of a PEP is very wide, or they believe that they cannot, or should not act on behalf of PEPS.

The requirement to produce a firm risk assessment is set out at Regulation 18 of the money laundering regulations. The risk assessment must take into account information we publish and address the risk factors set out in the money laundering regulations, namely:

You should be aware of the type of person likely to be a PEP. As well as political figures, the definition includes state-run enterprises and international organisations. For example, the following are PEPs: the business partner of a member of the board of Network Rail, Channel 4 or the BBC; the children of certain Church of England bishops; senior office holders of international bodies such as the Red Cross or Amnesty International.

■ your firm's customers ■ the countries or geographic areas in which you operate ■ the products or services which your firm provides ■ your firm's transactions ■ how your firm's products and services are delivered ■ take into account, and be appropriate to, the size and nature of your business What we have seen In spring 2019, we called in 400 firms’ anti-money laundering risk assessments. We found high levels of non-compliance with the money laundering regulations, with 21% not compliant. Of the 400 firms we contacted: ■ 83 risk assessments were not compliant: ■ 40 firms did not send us a firm risk assessment, instead sending us something else ■ 43 firms did not address one or more of the Regulation 18 criteria ■ We found that 135 of the risk assessments we received (38%) were dated after our request went out A proportion of these may have been updates of earlier risk assessments, however others may have been a newly created document, suggesting that some firms within our sample did not have an existing risk assessment at the time our request was received. When we reviewed our records and the firms' own websites, we found that many risk assessments were not appropriate to: ■ the size of the firm’s business ■ the services the firm offered ■ the geographical area in which the firm operated We also found that the use of templates had an impact, with risk assessments based on a template being generally lower quality. Those risk assessments which were not based on a template tended to be better. If you are choosing to use a template, you must make sure to tailor it to your firm and avoid copying and pasting specimen text. A considerable minority of firms still need to familiarise themselves with the requirements of Regulation 18 of the money laundering regulations.

14 The BILL of Middlesex

It is for firms to decide their own risk appetite, but your policies should be realistic. If a firm has an overly-restrictive PEP policy, it is at risk of: ■ turning away clients for no good reason ■ being counter-productive if the firm has a policy which is ignored or routinely breached


Law Society

People, Parliament, Executive & Judiciary A

s a lawyer, when I think of the Supreme Court ruling with regard to the lawfulness of the Prime Minister’s actions, it makes me feel proud that the Supreme Court is Supreme and has exercised powers over the Parliament and the Executive/Cabinet. Everyone in the legal profession may be proud that they belong to this profession, which produces the Supreme Power. It is a fundamental principle of the sovereignty and democracy that the Parliament, Executive and Judiciary should remain independent and distant. An unusual situation has arisen in British democracy. Britain is proud of Magna Carta, the whole world admires our system and follows as well. Westminster Parliament is known in the world as the mother of Parliaments. The judicial decisions are being followed all the over the world. However, in this scenario I am beginning to wonder whether the Parliament has used or abused the judicial arm of the democracy to fulfil its agenda and motives. This judgement and the events preceding to the judgement can create various problems to taint our system in the years to come. Parliamentarians and other instructed parties instructed outside Parliament can time and again make applications in the Court to curtail the actions of the Executive. In the event of a war situation, a serious threat from an enemy which is imminent, the anti-war lobbies and eccentric Parliamentarians can go to Courts to argue and curtail/delay/ frustrate the Executive/Cabinet from protecting our Nation. By the time a final decision of the Supreme Court comes, the enemy would have executed the threat. Another dangerous precedence open by this Supreme Court Judgement is that the independence of Judiciary can be interfered with. Such an important Judgement curtailing the Executive, the people who delegated the sovereignty to the Parliament and through the Parliament to the Executive is being frustrated to carry out their decisions. This will open the Judiciary and the Judges to be subjected to scrutiny. Questions are going to be raised in the people’s minds, whether these 11 Lord Justices are more inclined to remain or leave! It can even be extended to question whether Lord Justices from Scotland will overrule the judgments from the Scottish Courts! Will the Lord Justices from Wales be absolutely independent against the will of the people of Wales who overwhelmingly voted to remain! Investigative journalists would like to probe into the Judge’s

background and also to take statistics of Judgements of these individual judges who delivered Judgements for or against the Government in past. We should not lose sight of the fact that Judges are also human however independent they try to be. When I think about the consequences of the Supreme Court Judgement, I am wondering whether it was a worthwhile exercise of this Supreme Court action and what have we achieved and at what cost? We have achieved another four weeks of Parliament sitting, an excitement and enjoyment of the opposition supporters and the anti-Boris Johnson lobby and nothing else. The honourable independent Judges of Great Britain have been put into a risky position to be subjected to anxious scrutiny from the Public and the media. The noble traditions and the pride of having an unwritten Constitution has been exposed to create doubt. Previous Prime Ministers never openly and personally criticized the then current Prime Minister. It is a noble tradition. When a Prime Minister is abroad, opposition leaders not attacking the Prime Minister locally is a noble tradition. A previous Prime Minister not filing a case and becoming a claimant against the current Prime Minister is a noble tradition. All these traditions have been broken. Are our Politicians and traditions still Noble? By the present actions of the Parliament, Executive, and the Supreme Court interfering and expressing opinion on an act of a sitting Prime Minister, has kick-started the question whether the unwritten Constitution should be abandoned and a proper strict written Constitution be given birth? Our great Nation Britain, has survived great two Wars and terrorist attacks and still surviving as a great nation in the world. I am a strong believer that this is a blessed country because thousands of Christian missionaries had gone all over the world and carried out charity work, education and also spread the word of God. This nation is still prospering from that blessing of God. May God bless our great United Kingdom. ■

A. Sriharan

Past President Middlesex Law Society

The BILL of Middlesex 15


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Legal News

Solicitors: are you ready for the changes to the SRA’s Code of Conduct? O

n 25 November 2019 the Code of Conduct in the SRA Handbook 2011 (the Code of Conduct 2011) will be replaced with two new codes of conduct – one for solicitors and one for regulated firms. Are you ready? In this article, James Robins and Ivan Roots of Womble Bond Dickinson’s professional risks team take a high level look at the changes being implemented and the impact upon solicitors. The Changes The 2011 Handbook is being replaced by the 2019 Handbook and the 10 mandatory principles have been cut down to 7 principles. Legal professionals must act: ■ in a way that upholds the constitutional principle of the rule of law, and the proper administration of justice ■ in a way that upholds public trust and confidence in the solicitors’ profession and in legal services provided by authorised persons ■ with independence ■ with honesty ■ with integrity ■ in a way that encourages equality, diversity and inclusion ■ in the best interests of each client In broad terms, the aim of the changes is a drive towards ethics based principles of practice, rather than adhering to a full set of black and white rules. The focus is now very much upon the behaviour of the individual, including a personal obligation to report breaches; the rules send a strong message that the solicitor will be personally accountable for any breaches. What does this mean for you? Solicitors will need to: ■ Review the 2019 Handbook (note that the current version on the SRA website is not final and may change before 25 November 2019). ■ Read the SRA enforcement strategy and linked ‘topic guides’ for a summary of the main mitigating and aggravating factors the SRA will take into account when considering cases. ■ Understand the personal obligation to report: – Solicitors must report a reasonable belief that there has been a ‘serious breach of the standards’ by your own behaviour, or that of other solicitors you work or deal with. – The obligation to report extends to other legal services regulators such as CILEX. – Reports must be made promptly – early engagement with the SRA is key. – Document anything which involves personal judgment, such as a decision not to report, or the timing of any report made, so that this can be justified to the SRA if necessary. ■ Read your firm’s social media policy. Be alive to issues such as client confidentiality when using social media.

Reprinted from the October 2019 Bill and worth re-reading

Firms and In-house legal teams should: ■ Review internal policies and procedures, in particular whistleblowing and reporting breaches policies, so that they reflect the SRA’s enforcement strategy and the new obligation to report ’serious breaches’. ■ Ensure that members of the in-house legal teams are aware of their personal obligations in the new Handbook, the reporting expectations and the reporting procedure. Comment The SRA has confirmed that the 2019 Handbook is designed to be more flexible, allowing “solicitors greater flexibility in how they work – making it easier for people to get help”. However, with this flexibility comes increased risk as the focus by the SRA on the conduct of solicitors outside work as well as in practice will inevitably lead to an increase in prosecutions. There is a pattern of the SRA taking an extremely tough approach, with little room for second chances. In 2018 alone, the SDT ordered that 80 solicitors be struck off the roll. Indeed, the SRA is expecting a sharp increase in the number of cases referred to it in 2020, with the new requirement to report a ‘reasonable belief’ that there has been a serious breach. The SRA is also anticipating a shift in the nature of cases being brought, with an expected increase in the number of sexual misconduct cases, those relating to the use of social media and cases concerning conduct outside of the professional arena. Indeed, disciplinary decisions handed down since the SRA’s August 2017 Warning Notice illustrate the stance the SRA is likely to take in response to a perceived ‘threat’ to the solicitors’ brand. For example, disciplinary action has been taken against solicitors for posting offensive anti-Semitic comments on Facebook, assaulting paramedics while intoxicated and posting ‘puerile’ comments on social media about cases being worked on. Firms and individual solicitors can expect increased scrutiny, and more active engagement with the SRA. Those who fail to prepare for these changes are at risk of disciplinary action and unwelcome and damaging publicity. ■

The BILL of Middlesex 17


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Article

Why arbitration is being considered the new trend to resolve Intellectual Property disputes Why arbitration is being considered the new trend to resolve Intellectual Property disputes.

as an individual shares his/her idea with the public in exchange for exclusive rights to dispose of his/her intellectual property.

Jurisdiction and neutrality It is important to understand that disputes concerning intellectual property very often involve more than one nationality, and more than one jurisdiction. That is a factor that makes the process complex, involving many difficult decisions such as which jurisdiction will be adopted for the dispute, where it is going to be resolved and by whom.

There still might be some situations when parties can benefit from private disputes outside of the court without attracting public attention. But the privacy factor in arbitration can act as a disadvantage when both sides can win from their process being public. Such situations occur when celebrities prefer to have a public dispute about the intellectual rights e.g. to a song sometimes simply to attract public interest to both of them or even when companies such as Apple and Microsoft choose litigation to promote themselves.

One of the key features of modern arbitration is its multijurisdiction. In June 1959 the Convention on the Recognition and Enforcement of Foreign Arbitral Awards (also known as the New York Convention) came into force. Under it, 161 countries that have agreed to recognise and enforce arbitration awards that are made in any contracting countries. Arbitration also provides several elements that make the process of resolving disputes neutral. Parties can choose the law that will be used to resolve their dispute, language, and place of the arbitration process. That offers equality to the parties from the beginning, which is important for international disputes when one party can benefit from being a subject of a specific country (no party enjoys a home-court advantage in this case). Process of Choosing Arbitrators and “Advocate monopoly” Another advantage is that parties are free to choose their arbitrator. That offers reassurance in relation to who is deciding their case, and where both parties don’t agree on the arbitrator, each party can choose one, and both arbitrators chosen can select one more person to decide the case, resulting in a balanced group. Choosing arbitration as a method of resolving intellectual property disputes also meets the modern trend of getting rid of “advocate monopoly”. As there is no requirement to strictly be a barrister/ solicitor or even have a law degree, there is the possibility for a specialist in a particular field, to be invited to become an arbitrator. There are many examples of people from technical professions who were invited to be an arbitrator and subsequently resolve a dispute connected to highly specialised problems. Privacy One feature of arbitration in intellectual property disputes, viewed both as an advantage and disadvantage is the option of privacy. Despite the fact that there is no legislation about the confidentiality of arbitration processes in England, there remains an option for the parties to have an express agreement about confidentiality during the process. Generally, privacy usually acts as the main factor when choosing between arbitration and litigation. That is vitally important in terms of commercial disputes because parties not only avoid the factor of a national court but also use privacy. With intellectual property disputes, there is quite a different situation. The legal definition states “a patent is open for public knowledge”,

Considering that any arbitration award can be easily enforced in court if the party fails to perform what an arbitrator has concluded, privacy may be an important factor when choosing between litigation and arbitration. Cost Notwithstanding that arbitration is becoming more costly, nevertheless the process is still recognised as a cheaper option to regular litigation. The process of arbitration is usually faster and normally takes only a couple of days for parties to resolve their disputes, contracted to the litigation process, which involves a more complex and longer process of dispute resolution and usually ends up being more expensive. Right to Appeal The general rule is that an award provided by an arbitrator cannot be challenged. There are a couple of exceptions. An appeal might be permitted if there was a serious irregularity in the decision-making process. However, claims for an appeal from an arbitration award are rarely successful, and the general rule prevails. The fact that there is no right to appeal provides parties to the dispute with certainty in relation to the outcome of a dispute and it avoids the costs of going to court and going through the entire process of appeal. Practice The World Intellectual Property Organisation (WIPO), created the WIPO Arbitration and Mediation Centre, which contains rules with relation to how arbitration procedures should be conducted when resolving Intellectual Property disputes. The UNCITRAL (United Nations Commission on International Trade Law) also provides directives governing arbitration disputes which may arise in the international commercial context. Our Conclusion: After evaluating the aspects of Arbitration mentioned and after comparison with the usual Litigation process, we believe that there are good reasons for Arbitration to remain and grow significantly as a process of choice to solve disputes for the future. ■

Mariana Follador & Ilia Martynov

Students of the University of West London

The BILL of Middlesex 19


Article

The hard road to qualification – a day in the life of an LPC student/Trainee Solicitor

M

y name is Aa’ishah Sattar and I am currently completing the LPC part time at the University of West London. I am also very fortunate to work as a trainee solicitor with a West London law firm and expect to qualify as a solicitor in the next few months. It has been very difficult trying to manage my training contract and studies at the same time but the balancing act has enabled me to gain insight and experience, which will help me with the LPC and the work place and allow to gain the relevant skills that a solicitor must have. I understand the importance of being organised and checking my university lecture schedule as I complete all my preparation for University workshops and lectures on the weekend is a factor that looms large in my life. Clearly, it is very important to stay on top of the LPC. It is a very intense course, and you can easily fall behind on certain topics. I use my weekends to make my notes and ensure my files are organised in a certain way. On the days that I attend the University campus, I go into work early to make sure I complete my training hours which are 42 hours a week as a trainee solicitor and 7.5 hours daily. I start at 8:30am by collecting the DX for review by the partners and qualified staff who assess incoming court communications and review any important court directions. I will then go into the office and start to deal with the firm’s emails. As I am currently completing my criminal seat, I will only deal with criminal matters. My tasks include printing and creating new police station files. I also receive last minute cases where representation is required in the Magistrates court. This means I have to contact the client and review their financial circumstances to assess if they qualify for legal aid and if so, I will complete a legal aid application. I also check to see if any duty solicitors are available to represent the client. In most cases, there will be a duty solicitor available. I will also request case papers for advocates and make sure they receive the documents. As part of my office-based duties, I call clients and complete statements, request further proofs of evidence, chase for any financial documents to be sent to the Legal Aid Agency and take calls. In some cases, led by the senior staff, I review the disclosure that has been sent from the CPS. I would offer my observations on the evidence and consider the nature and strength of the CPS case. Most of this work is achieved by viewing case papers and any multimedia evidence. As a second-year part time LPC student my core module of property law and practice runs from 3 -7:30pm so my journey to the University starts at 1:30pm which allows me the time to ensure that I have printed all of my preparation work. I go over further reading for the upcoming sessions to make sure I understand the content of the work, and if I don’t, I will prepare questions for the lecturers to answer. I try to be an active participant in the class and make the most of the learning opportunity. I am well aware that if I don’t understand and yet remain silent, I may lose a valuable learning experience. Whilst you are on the LPC, you must make sure you ask for help when you need this. I was extremely happy when the University of West London catered for students who were also in work as it

20 The BILL of Middlesex

made the process of learning much easier and the lecturers are very supportive. Of course, it is hard work working towards completion of the LPC, but it’s worth doing something that you love, and you are passionate about. My journey into the law has been a real journey but I am forever very grateful for where I now find myself. The support of the teaching staff at my University has been remarkable and enabled me to learn so much which has in turn meant that I can progress in my office based work where again I have the support and encouragement of the partners and staff. ■

Aa’ishah Sattar

LPC student / Trainee Solicitor Aa’ishah Sattar is a part time second year LPC student at the University of West London who aspires to become a Civil Litigation solicitor.


Article

Women in the law A

century on and it still beggars belief that before the introduction of the Sex Disqualification (Removal) Act 1919, I would not have been allowed to carry out my roles as Chief Ombudsman and Chief Executive of the Legal Ombudsman. This ground-breaking piece of legislation has paved the way for women to become lawyers, it has enabled them to take on civil and judicial posts, as well as a variety of other job roles that work alongside the legal system. At the Legal Ombudsman, almost 70 per cent of our workforce is female and they’re represented across all services. Wanda Goldwag is our Chair of the Office for Legal Complaints; alongside myself, we have female heads of departments and of course women working in all roles across the organisation. Recently, one of our paralegals passed her LPC and gained a Masters in Legal Practice with distinction. I am extremely pleased that the Legal Ombudsman is able to provide such strong opportunities for women. When I started my career such employment opportunities were unheard of and it was a very stark choice between work and family. Although there are more opportunities for women now, some of the challenges still remain and can shut women out of the workplace, for instance raising a family whilst trying to progress your career, and institutional sexism. Historically, Ombudsman services have been perceived to be run and accessed by white middle-class males and this can present itself as a barrier to some service users. I am keen to challenge these views. Our service is accessed by a cross-section of people, and I think it is important that our staff are representative of the people who access our services. Studies have shown that a gender balance and diversity in the workplace benefits productivity and I couldn’t agree more. I am always looking for ways to ensure this is recognised, encouraged and celebrated in the workplace – especially as we are located in the heart of Birmingham, which is a vibrant and multi-cultural city. The Legal Ombudsman actively encourages and supports its staff groups and networks, including: BAME, Disability, Wellbeing Champions, Women’s Network and LGBTQ+. I’m really proud of the work that these groups are doing - they give people a forum to share their experiences in a safe and supportive space, and celebrate contributions they bring to the organisation.

As for me personally, I’m really proud of what I’ve achieved over the course of my career. Due to the nature of what I do, I have found myself in many male-dominated sectors and there have been situations where I’ve had to assert myself more than my male counterparts. However, experience has taught me valuable lifelessons, skills and resources that I can then bring to my next role. Here are my top five career tips that I would like to share with readers: 1. Be open to opportunities: Career progression is not always linear. Seize every life and career opportunity you get and make the most of volunteering and networking events. You never know what new skills you may learn, or people you may meet along the way that will take you on your next career journey. 2. Project confidence in all that you do: Even those who radiate vast amounts of confidence don’t always feel it inside. However, they have learned that acting confident, being professional and having a thorough understanding of your subject eventually leads to true confidence. 3. When things go wrong, learn from your mistakes: We all make mistakes but it is the getting back on your feet and learning from them that counts. If it wasn’t for a mistake, we wouldn’t have discovered penicillin, post-it notes or chocolate (as we know it today). 4. Organise yourself, find your focus and prioritise: Don’t try and do too many things at once; increase your productivity by organising your time and tasks; learn to delegate. This will improve communication with your team and increase efficiency. 5. Be the best version of yourself that you can be: Dress smartly, always be on time, be dependable, show enthusiasm and be good at your job. Have a willingness to improve and further your knowledge and skills; be focused and take accountability for your work. Remain calm and focused, even in high pressured situations. ■

Rebecca Marsh

Chief Ombudsman at Legal Ombudsman (LeO)

The BILL of Middlesex 21


Article

Domestic Abuse and Child Arrangements Orders

O

ne case has recently caught the interest of legal journalists, that of JH and MF 2020] EWHC 86 (Fam) when Ms Justice Russell lambasted Judge Tolson and decided the judgment was flawed for a multiplicity of reasons. The Mother had left and fled to a refuge due to the Father’s domestic abuse and it was two years after that the Father applied for a child arrangements order for their 4 year old child. The Mother’s case was that the Father was aggressive, intimidating and that he was also controlling and emotionally abusive during the relationship. It is her case that she had been subjected to domestic abuse which included verbal abuse and that he had physically and sexually assaulted her while the child was present in their home. The Judge should have had heed to Practice Direction 12J of the Family Proceedings Rules 2010 which says at part 5: “The court must, at all stages of the proceedings, and specifically at the First Hearing Dispute Resolution Appointment (‘FHDRA’), consider whether domestic abuse is raised as an issue, either by the parties or by Cafcass , and if so must – ■ identify at the earliest opportunity the factual and welfare issues involved; ■ consider the nature of any allegation, admission or evidence of domestic abuse, and the extent to which it would be likely to be relevant in deciding whether to make a child arrangements order and, if so, in what terms; ■ give directions to enable contested relevant factual and welfare issues to be tried as soon as possible and fairly; ■ ensure that where domestic abuse is admitted or proven, any child arrangements order in place protects the safety and wellbeing of the child and the parent with whom the child is living, and does not expose either of them to the risk of further harm; and ■ ensure that any interim child arrangements order (i.e. considered by the court before determination of the facts, and in the absence of admission) is only made having followed the guidance. ■ In particular, the court must be satisfied that any contact ordered with a parent who has perpetrated domestic abuse does not expose the child and/or other parent to the risk of harm and is in the best interests of the child.” Here, this must have been relevant as a finding of fact hearing had been arranged when evidence was to be heard. What is so surprising here is that the Mother was not allowed to give evidence behind screens which she was entitled to request as a vulnerable witness. Instead she had to give evidence from Counsel’s bench where she was sitting near the Father and he then also gave evidence from there where he could discuss matters with his Mackenzie friend, there to assist as he was not legally represented. She must have been terrified and distressed and no wonder the Judge could barely hear her evidence and the tape recording did not record it all.

22 The BILL of Middlesex

The case has primarily been reported in the press as the Judge found the Father could not have raped her as she did not physically resist and the Judge seemed to be completely ignorant of the definitions of domestic abuse: ■ “domestic abuse” includes any incident or pattern of incidents of controlling, coercive or threatening behaviour, violence or abuse between those aged 16 or over who are or have been intimate partners or family members regardless of gender or sexuality. ■ “coercive behaviour” means an act or a pattern of acts of assault, threats, humiliation and intimidation or other abuse that is used to harm, punish, or frighten the victim The Appeal Judge agreed the trial Judge failed to apply these definitions, or at the very least, keep them in mind. The Judge did not accept the use of language or throwing objects was controlling and coercive behaviour, which is surprising although many Judges still seem to believe domestic abuse can only be from violence. The Mother won her appeal against the decision of the Judge that there had not been domestic abuse but now faces the awful prospect of a retrial where she will have to give evidence again. Let’s hope she is allowed to give her evidence from behind a screen or even better, by video link. Another issue is that unfortunately abusers are seeking to see their children by accusing mothers of parental alienation. ‘Playing the parental alienation card is proving more powerful than any other in silencing the voices of women and children resisting contact with abusive men,’ said former family law barrister Dr Barnett in a recent study. https://www.independent.co.uk/news/uk/home-news/ domestic-abuse-parental-alienation-family-courts-brunelstudy-a9294726.html The issue of violence cannot be disregarded, the report states: “A 2016 study by Women’s Aid revealed the cases of 19 children in 12 families who were all intentionally killed by a parent who was also a known perpetrator of domestic abuse. All of the perpetrators were male and fathers to the children they killed and having contact. The outcome of this report and the case of JH is that there must be better training of Judges to ensure they ascertain the truth and that victims are protected. ■


Article

Difficult lawyerclient relationships T

he lawyer-client relationship can be complex. The lawyer is there to listen, empathise and advise. Some lawyer-client relationships can be fairly straightforward such as purchase or sale of a property, making of a will or reviewing terms and conditions. However, some clients may be facing loss of liberty, employment, relationships or reputation. These are clients you may think about a lot, who require a lot of time on the phone or email, you may start to worry about them and they can sometimes become a burden. A client like this is often looking for more than just a lawyer – and lawyers can often play the role of teacher, counsellor, doctor, parent, psychiatrist, Samaritan, or even magician! The bottom line is the client wants to be fixed legally and, although they may not know it, emotionally. Part one is your job, part two is not but it can be difficult to step back. Why? Because to be a good lawyer you do to a certain extent have to ‘crawl around in your client’s skin for a while and see the world through their eyes’. (Atticus Finch, in To Kill a Mocking Bird).

■ Before you meet the client prepare. Visualise the client in your mind. Spend a few minutes putting on your imaginary armour reminding yourself that you have boundaries. ■ If you are concerned a client may become aggressive or difficult make sure there is someone else around and that they know you anticipate a potentially tough time. Sit near the door. ■ Have some stock phrases rehearsed in your mind: – “I’m sorry I really can see how angry, sad, scared you are…I will do what I can for you as your lawyer but I am just not able to help with….” “I wonder if you have thought about seeing your GP, ringing someone?” – “I wonder do you have anyone you can call when you feel like this?” – If the client gets very upset, angry or overwrought give them breathing space.“I can see this is really tough, do you want to take a few minutes?” “ Would you like a glass of water?” ■ Give them the Samaritans number or any others that you think might be useful. Don’t give them your personal mobile. ■ Sometimes just stay silent and give them the space to rage, weep or have their moan. ■ Try to finish by summarising what you have heard and what you plan to do next. The greatest gift you can give another human being is the purity of your attention. Never forget that you are there to listen, extract what will help the client in legal terms and, if necessary, suggest that they seek help from other sources. ■

The good news is this is a common dilemma; the bad news is that legal training leaves the lawyer ill-prepared. Here are a few tips:

Our new web-chat service is available online Monday 9.00am–1.00pm, Wednesday 1.00–5.30pm & Friday 9.00am–1.00pm. Visit www.lawcare.org.uk

If you need emotional support call our helpline on 0800 279 6888 The BILL of Middlesex 23


Article

Client-Attraction Secrets for Lawyers: Why it’s getting harder to attract new clients and what to do about it

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ight now, we’re in the middle of a ‘perfect storm’ of factors that are making it harder than ever to get clients.

If you’ve been in practice for a while you’ve probably noticed that it’s getting harder and harder to attract and convert the right kinds of clients.

3. Be clear about your area of expertise – where it is, and where it isn’t As a lawyer, you probably have a specific area of expertise; or maybe you have several. But are you a specialist in all areas of law – from matrimonial to commercial property? Probably not.

■ advancements in technology (meaning in many cases clients can choose legal providers based virtually anywhere, and it’s easier than ever to ‘shop around’ or even to try DIY); ■ changes in the legal marketplace (increased competition, downward pressure on legal fees, and it’s harder than ever to stand out from the other legal providers); and ■ the traditional approach of law firms to attracting clients (too reliant on ‘build it and they will come’ or referrals or using up too much fee-earner time on inefficient marketing methods like networking and writing articles).

So why do some lawyers feel they should be expert in practice growth strategies and skills – particularly without any training or help?

3 critical shifts to get more clients To overcome these challenges, three critical shifts are needed.

About the Author Michelle Peters (The Business Instructor) is a former practising solicitor and the creator of the Profitable Practice Programme for lawyers who want more clients and to increase their profits without working more hours. You can discover more about the secrets to attracting and converting more of your ideal clients, and get step-by-step worksheets to help you take action, in Michelle’s new book The Client Magnet Strategy for Lawyers. Download the first four chapters for free at www.thebusinessinstructor.com/free-chapters ■

1. Make sure your marketing stands out from your competitors and that it contains the right message to attract your ideal clients  Help prospective clients know why they need your help and why they should choose you. This one simple change will be enough to set you streets ahead of your competitors. Telling them why starts with explaining the benefits they’ll gain from using your services – think about the pitfalls or problems you’ll help them avoid. 2. Understand that gaining clients is about attracting more enquiries and converting these into paying clients Attracting more enquiries is only one element of winning clients. The other – equally important – element is being able to convert those enquiries into paying clients at the minimum cost. It costs time and money to attract new enquiries, so how successful you are at converting enquiries into paying clients will have a direct impact on your profitability.

24 The BILL of Middlesex

It’s important to identify where you need to improve your skills in areas such as attracting enquiries and converting more of these into paying clients. It will mean getting better results in less time – meaning you not only grow your client base but have more time available to do the fee-earning work that your new clients provide.

Michelle Peters

The Business Instructor


Book Review

The Client Magnet Formula for Lawyers How to attract and convert more of your ideal clients By Michelle Peters ISBN: 978 1 79863 412 7 THE BUSINESS INSTRUCTOR www.thebusinessinstructor.com “YES – TELL ME MORE ABOUT THE FORMULA! THIS IS A BOOK WE WOULD ALL WISH TO READ …” An appreciation by Elizabeth Robson Taylor of Richmond Green Chambers and Phillip Taylor MBE, Head of Chambers, Reviews Editor, “The Barrister”, and Mediator

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his book arrives at just the right time for your growing and discerning business. Michelle Peters has practised as a solicitor at a large international firm in London and gives us very positive advice via her fascinating formula. She has now swapped her main legal career for a business advice role which is great news for us. In its essence, Michelle’s book gives us a realistic perspective on what you can do as a lawyer to be more successful attracting the right type of client base without jeopardizing your professional status. We think it’s a “must-have” book for the twenty-first century professional lawyer. As “The Business Instructor”, Michelle’s aim is for lawyers to attract more clients and to increase their profits without working more hours. Michelle strongly believes that to grow a practice you need to be good at the business of law as well as the practise of law. That point remains a controversial problem in many practices hence the need for this book. Her strategic advice, training (including marketing and conversion skills) and mentoring ensure her clients know what to do, how to do it, and – most importantly – get it done. We think that this book will enable you to increase the number of clients you attract. The formula lets you work only with those who will appreciate you and who don’t quibble about fees (yes, there are some around). So, by using Michelle’s “Client Magnet Formula”, she says, it means better clients for you! And that “you won’t have to ‘sell’ your services or do anything that feels unprofessional”. Applying the strategies and systems on offer gives us these constructive lessons which we have summarized here. Learn how to use a powerful “Client Magnet” to attract significantly more enquiries from your ideal clients. Develop a Client Attraction System to use your Client Magnet to attract new enquiries, freeing you from time-consuming and sometimes futile networking, and the uncertainty and unevenness of referrals.

‘yes’, and also be able to create a Client Conversion System to dramatically increase your success at turning enquiries into clients: hot prospects to hard instructions. To accompany the book there are downloadable worksheets to help you implement the steps Michelle teaches. So you know what steps to take to implement what you’ve learned. So, whether you are an established lawyer, or new to our profession, the book will be essential reading if you want to increase the quantity and quality of your clients in a way that’s both ethical and which works. Michelle’s mission is simple: “would you like more – or higher quality – clients for your legal practice?” And, if the answer to these questions: “have you had little or no training in how to attract your ideal clients”, and, “are you suspicious of traditional marketing and ‘sales’ tactics” is “help”, then this book is just for you. The paperback book was first published on 26th September 2019. ■

by Elizabeth Taylor & Phillip Taylor MBE of Richmond Green Chambers

About the Author Michelle Peters (The Business Instructor) is a former practising solicitor and the creator of the Profitable Practice Programme for lawyers who want more clients and to increase their profits without working more hours. You can discover more about the secrets to attracting and converting more of your ideal clients, and get step-by-step worksheets to help you take action, in Michelle’s new book The Client Magnet Strategy for Lawyers. Download the first four chapters for free at www.thebusinessinstructor.com/free-chapters ■

Added to these points, you will discover reading the book yields the secret to helping clients see the true value of your services. It means you can increase your fees and still have clients say

The BILL of Middlesex 25


Xxxxxxxxxx

Premium Residential <0.25Ha Environmental | Flood | Ground Stability | Energy & Infrastructure

 Report Details

 Subject Site

Address:

Requested by:

Sample, Sample

Sample

Grid Reference: E: 123456 | N: 123456

Date:

Report Reference:

Report ID:

Sample

1000085407

27/04/2018

 Professional Opinion 1.ENVIRONMENTAL

PASS

No further recommendations

2.FLOOD

PASS

No further recommendations

3.GROUND STABILITY

PASS

No further recommendations

4.ENERGY & INFRASTRUCTURE

PASS

Consideration(s): 4.20 Power Stations

Air Quality Index: Some Polluted Areas (See 1.25) This page should always be read in conjunction with the full report. The Professional Opinion indicates the potential risks and any other potential issues associated with the property. The results should be disclosed to client and/or lender and/or insurer as appropriate.  A ‘Pass’ is given if no potential property specific risk has been identified.  A ‘Pass with Considerations’ is given where there are potential hazards in the locality to bear in mind, or if there are features nearby which some clients might consider could affect them.  A ‘Further Action’ is given if there is a potential property specific risk and a further action is advised. In the event of a request to review the Professional Opinion based on additional information, or if there are any technical queries, the professional advisor who ordered the report should contact us at info@futureclimateinfo.com, or call us on 01732 755 180.

Regulated by RICS If you require assistance, please contact your Search Provider or alternatively contact FCI directly with your Report ID. Tel: 01732 755 180 | Email: info@futureclimateinfo.com | Web: www.futureclimateinfo.com

AFFILIATE MEMBER

26 The BILL of Middlesex


Conveyancing

Groundwater Flooding – The Delayed Deluge T

he role of groundwater in providing secure water supplies and supporting a healthy surface water environment is vital. In recent years, England and Wales has experienced exceptional swings that have led from drought to groundwater flooding in as little as four months. This has been especially the case this winter in London and the South East. Tim Champney, Managing Director, Future Climate Info, takes a look at this lesser known and more unpredictable flood risk and its impact on property, likely to become far more common as our climate changes. What is Groundwater Flooding? Groundwater is a general term that refers to any water found beneath the surface that fills pores or cracks in the underlying soil and rocks. It is most commonly found in low-lying areas underlain by aquifers, such as chalk or sandstone, or localised sands or river gravels in valley bottoms. Because of its subterranean existence, it is not normally “seen”, emerging only in extreme circumstances. Underneath large areas of southern England are aquifers – huge rock layers that can hold a lot of water. They are a precious store of water supplies for the populous south, but they can also be a curse. When the water level rises, it can seep out of the rock later in a slow release. Following persistently wet winters, such as the one we have just had, flood levels can be easily reached and will continue to flood well into spring. What are the impacts of Groundwater Flooding? Once flood water reaches the surface it will find its own often indiscriminate route. Some flows will follow usually dry valleys, or it could just seep out where the chalk meets a more impervious clay layer. This could be anywhere in gardens, across roads and paths, paying little attention to what is in its way. As it travels to the surface, it can also ingress to basements, tunnels and sewer networks. Any cracks in pipes can then suffer severe water damage that can disrupt supplies or create potential effluent contamination. On new developments with sustainable drainage systems (SuDS), it can also interrupt and overload drains and ponds. It is the severity and duration of groundwater flooding on property assets versus other types of flooding that is its distinctive hallmark. Locally, properties can be affected by fluctuating high levels of groundwater for many weeks, with no way of drying out. A river or surface flood tends to be immediate, severe and then recede allowing for a quick response. Groundwater sometimes does not give that option. What are Groundwater Levels like Now? Through Christmas and into New Year, groundwater levels in southern England rose dramatically following heavy rainfall. Given the accumulations from a wet autumn, levels in southern England reached notably or exceptionally high levels compared to the trend. The Environment Agency (EA) continues to report that groundwater levels in East Surrey and South London have been rising throughout the winter following higher than average rainfall. Levels have continued to increase through most of February in

response to rainfall received during Storms Ciara and Dennis, and have continued to rise further with the early March heavy rainfall event. Properties with deep basements in and around Purley could soon experience flooding thanks to the Caterham Bourne, a groundwater stream that rarely flows but is now rising rapidly. Properties are being defended with sandbag walls. The EA is also installing additional pipework in the rear gardens of affected homes to make sure the watercourse runs freely. There are many similar hidden streams in West London that could also affect high value basement conversions. The London Borough of Hammersmith and Fulham’s 2017 Flood Risk Strategy highlights that the majority of the southern half of the borough is considered to be potentially at high risk of groundwater flooding. The EA and Flood Forecasting Centre (FFC) continue to monitor boreholes levels up to 60 days in advance, given the lag in flood incidents after rainfall events. Alerts can be provided to residents to take action and maintain resilience. As the ground is already saturated in the groundwater flood prone areas, this will inevitably top up levels and will store up further groundwater flooding into March. Identifying Groundwater Risks in Conveyancing Transactions Groundwater can be challenging to advise on as an environmental risk in property search due diligence. As a conveyancer, key things to ask your client to look out for include: ■ A local history of groundwater flooding – especially any evidence of damage and repair from 2000/01 and 2013-14 and, perhaps, right now. ■ Located on a permeable unconfined aquifer, river floodplains or low lying area ■ Has a basement or subterranean room (especially in London) ■ A nearby feature, like a local spring-fed pond ■ An history of cellar pumping A More Forensic Risk Analysis The EA has a basic map of groundwater risk at 1km resolution, which is not good enough for property searches. Data is now improving all the time in order to translate potential risks into a more scientific understanding. The Future Climate Info environmental search and flood search reports contains groundwater flood risk data at a 5m resolution. Where a groundwater risk is highlighted, our flood data partners at JBA can then undertake a more forensic Flood Review. The results provide initial opportunities for property level resilience measures that may benefit the property. Understanding groundwater risk is important as many insurance policies exclude groundwater as “local flooding”. For more information on Future Climate Info’s environmental risk reports with JBA’s unique Flood Review service, contact us on 01732 755 180 or email info@futureclimateinfo.com ■

The BILL of Middlesex 27


Software

Taking software integration from zero to hero When it comes to software, attempting to be ‘all things to everyone’ is a naïve goal necessitating a never-ending journey. You’re going to have a number of software applications, from business intelligence and case management to document management and legal accounting, plus everything in between. Central to any law firm is, of course, your clients and matters: ■ It’s your clients you need to undertake checks for money laundering ■ It’s your clients for whom you need to complete statutory forms and e-submissions ■ It’s your clients for whom you need to present evidence for court ■ It’s your clients with whom and about whom you need to correspond ■ It’s your clients you need to service as best you can At Quill, we focus software development on integration relating to managing clients and matters. With our complete practice management software, pick ‘n’ mix solutions and third-party integrators, you get the right systems for optimum client and matter management. Whether you select Quill-only or Quill-and-other-suppliers, it’s best-of-breed IT with full and seamless integration. Compared to running standalone systems with data stored disparately, integration streamlines processes, enhances efficiencies, simplifies administration, reduces costs, provides analytical insights, strengthens security, improves collaboration and more. These benefits add up to superior customer service provision. Happy clients who bring repeat instructions and recommend your legal services to others are good for business. Let’s take a moment to think how you do your daily work. Your desktop is central, right? The majority of us begin, return to and end the working day on our desktop. It’s the central area behind the windows in our graphical user interface where we host shortcuts to our most-used systems and documents. That’s why we’ve made integration with the desktop environment the focus of recent software development efforts. Integration between your desktop and our Interactive application keeps getting cleverer. You can easily hop between a client’s matter in Interactive and Word or Outlook, and vice versa. With our new qSync application, you can send any documentation from your desktop to Interactive’s Document Hub with a right click allowing you to save the correct documents against the correct matter ready for reviewing or bundling (more on this later!) on another day. Essentially, qSync empowers local working and global sharing. To all intents and purposes, you work locally on your desktop. In actuality, your desktop’s connected to the cloud so you work collaboratively as a team. We also cater for the trend of spending each day working in Microsoft Word and Outlook with our MS Office add-ins. Add-ins create deep integration between your Microsoft systems and Interactive database and matter files, affording productivity enhancing features such as auto-detected-and-stored caserelated emails, auto-saved documentation and appointment calendaring. A comprehensive library of all Word-and-Outlook-

28 The BILL of Middlesex

generated correspondence is then readily accessible from your Document Hub. On the subject of correspondence, Interactive Forms is our latest integration addition. Comprising an extensive catalogue of legal forms, you sign in singly to Interactive, edit popular and template forms from the customisable control panel, enter data once which is populated from your database to merge fields, and assign part or fully completed forms to the relevant matter in your Document Hub. There’s a whole lot more to Interactive Forms than this, not least e-submissions to government agencies, document bundling for court packs, and sharing of forms with clients, peers and counsel. Even better, choose outsourced typing for dictation via our Type App with typed-up forms saved straight back into your Document Hub. The bonus being that our pay-as-you-go outsourcing model can lead to 40% overheads reduction compared to in-house costs and you’ve got more time for servicing clients. Taking into account the growing demand for remote working, due to court attendance and other off-site commitments, Interactive has its own smartphone app. This is another example of smooth integration in play. With an internet connection and using the same secure log-in, you can perform all manner of tasks to progress matters on the go. Functionality has pretty much the same capabilities as the standard version of Interactive. At the outset of this client-centric activity is the requirement to execute due diligence with anti-money laundering and credit checks. Doing so ensures your customers’ identities are legitimate and they have sufficient funds. Our integrated AML tool gives protection against financial crime by enabling AML or AML-plus-credit checks during client set-up, with instant pass or fail status, and lifetime storage of results. So far, we’ve covered only Quill products on their own and demonstrated how Interactive is more than just a legal accounts system. There’s Quill-and-other-suppliers as well. Our API with third-party vendors facilitates auto-transfer of data between the two systems. Whatever’s entered into the third-party system is auto-populated to ours. They operate as one. We have integrations in place with various case management, legal forms, document bundling, compliance management and workflow automation software suppliers. And we’re dedicated to continued third-party integrations. We offer these integration options on a pick ‘n’ mix basis. You’re in control. We sort out the integration accordingly. Every bespoke package is surprisingly affordable and comes with awardwinning support. ■

Julian Bryan

Managing Director, Quill


Software

Staff retention in the era of the Millennial Millennials comprise around half of today’s workforce and are set to takeover 75 percent of the global workforce by 2025. A generation often mislabelled as entitled are simply different than the generations past. In order to retain millennial talent in an unpredictable economic climate, businesses need to focus on what employees expect from their careers. What I can tell you is, it isn’t all about ping pong tables, bean bags and free drinks on a Friday.

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recent study from Gallup suggests a staggering 87 percent of employees worldwide are disengaged in the workplace. That translates into an ineffective workforce with reduced productivity, increased sick leave and general negativity. However, there is good news! It isn’t too late to ensure we’re set up for the future. First, we must recognise what expectations millennials have of their careers. For many, it is purpose, fulfilment and the appropriate tools to complete that work. As digital natives they have grown with technologisation of the modern world. Born in the 80’s and 90’s, they watched televisions and radios switch from analogue to digital, cassettes transform into CD’s and then streaming services, and personal computers became a part of everyday life. Taking this rapid uptake of tech in their stride, they understand the value of the right tools at home and in the workplace. While addressing purpose and fulfilment will come from a cultural shift and a shared understanding of the ‘why’, technology still seems to be a sticking point. 67% of millennials said it was the biggest source of intergenerational conflict in the workplace,

according to research from Robert Walters. When staff, regardless of age, are bogged down by arduous administrative processes, they can struggle to find purpose in their work. Especially those who have studied to specialise in law, who are spending their days saving, uploading, printing and posting documents. They demand automated processes using the right technology to free up time to practise their chosen career more efficiently and rewardingly. The reality is, implementing this sort of valuable technology into your business model not only aids staff retention and satisfaction, but also provides rewarding customer experiences – more home movers than ever are millennials and expect the tech to match – as well as increased profitability and productivity. Embracing the evolution of workplace technology will not only keep you in stride with your employees, but also your customers. ■

Adam Bullion

General Manager of Marketing InfoTrack

LEAP announces fully remote implementation – law firms can now purchase, install, migrate data and train with LEAP online

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EAP, the legal practice management software provider, has announced that it is offering fully remote implementation to law firms across the UK and Ireland to help expedite their transition from a server-based set-up to the cloud and enable staff to get up and running working from home as soon and as effectively as possible. LEAP UK CEO John Espley said, “For many years, LEAP has been committed to developing software that supports small to mid-sized law firms and now this is more important than ever and it is vital that we work with the legal community through this difficult period. We have been working hard within the business to get our own processes in place to provide rapid installation to our customers and we have made our software available for demonstration, purchase, installation and training online. We are also offering to subsidise the transition between systems for the client as we want practices to implement remote working policies so that they can ensure continuity and maintain productivity throughout this difficult time.” LEAP helps lawyers to: ■ Fully manage their matters away from the office. ■ Collaborate on work in real time across multiple locations. ■ Access key information via any mobile device or browser. ■ Continue working without an internet connection with state of the art technology

Easy, quick and remote setup for your law firm. Working from home requires a variety of tools to manage schedules and tasks, transfer files and share screens and data – infrastructure that many businesses lack. LEAP enables lawyers and staff to work from home and have access to all the tools that are available in the office. “Cloud technology is by no means new but it has become a game changer in terms of enabling the same productivity when working remotely. Cloud-based practice management software is empowering legal professionals to work anywhere at anytime from any connected device,” said Espley. “We are also supporting law firms using LEAP to support their customers remotely, by providing them a Web Portal. This is an add-on to their website that integrates with LEAP that allows a customer of a law firm to schedule appointments, make enquiries 24/7 and make payments online.” To learn more about getting your law firm up and running with LEAP, contact: info@leap.co.uk or for more information about how LEAP helps your law firm to work from home, visit: https://www.leap.co.uk/work-remotely ■

The BILL of Middlesex 29


Book Review

Internet Law & Regulation 5th edition By Graham Smith The internet and what lies beneath – an engaging and erudite guide to the legal landscape of cyberspace, now in a new fifth edition. An appreciation by Elizabeth Robson Taylor of Richmond Green Chambers & Phillip Taylor MBE, Head of Chambers, Reviews Editor, “The Barrister”, and Mediator.

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he first edition of this now long-established legal text on Internet law came out in 1996. That was the dawn of the internet, you might say, or at least the beginnings of its widespread use. From what was once a slender volume “Internet Law and Regulation” has now evolved — in this brand new fifth edition for 2020 — into a quite massive and authoritative text of over 1,700 pages, recently published by Sweet & Maxwell/Thomson Reuters. Lawyers who find themselves embroiled in the often complex legal issues pertaining to the internet, particularly social media, will find this book indispensable. Thorough and erudite, it robustly tackles said issues with an engaging, plain-speaking approach, highlighted in the introductory chapter with attentiongrabbing commentary which draws an intriguing analogy between the internet and the typical urban built environment. ‘We all now know what the internet is,’ says author Graham Smith, ‘but how many outside the technical community would claim to know how it works?’ Our day to day use of the net does not reveal ‘what lies beneath the streets of cyberspace.’ he adds. ‘We have erected not just a few online dwellings, but a sprawling conurbation.’ ‘Writing a book on internet law has now come to resemble writing a book on the law’, Smith also observes, explaining further that ‘much of the legal analysis contained in the first edition remains relevant today – albeit embellished by courts and legislators, as the internet has evolved from relative obscurity to omnipresent method of communication.’ Obviously, internet law encompasses a range of other topic areas, including copyright, defamation, incorporation of contract terms, consumer protection and recently, communications offences. Add to this list such topics as electronic contracts and transactions, payment mechanisms and competition law. Other areas under scrutiny include data protection, contracts and electronic transactions, payment mechanisms, offensive communications and online safety, pornography and sexual offences, gambling, pharmaceuticals, tax and a lot more.

30 The BILL of Middlesex

Given the internet’s ubiquity, accessibility and global reach, the key issue in all this is one of enforcement. So, note the book’s fifth chapter on content liability, enforcement and policing. There’s also a key chapter on tax in all its relevant manifestations, including crypto assets, blockchain and artificial intelligence. Bearing in mind that internet law and regulation has become a wide-ranging, far-reaching and frequently controversial subject, it is fortunate for practitioners that this highly regarded text is straightforward and easy to use, with numbered paragraphs throughout and an almost minutely detailed table of contents and index. Researchers will appreciate the extensive tables of cases, statutes and statutory instruments, as well as the tables of European legislation and international conventions and also of foreign legislation. In the ongoing battle to impose obvious and necessary legal constraints on internet providers, (including those that appear almost unassailable), this book emerges as a formidable weapon. A word of cheer in this regard comes from US Attorney General William Barr who, according to comments in the recent financial press, questioned whether Facebook, Google and other major online platforms still need the immunity from legal liability that has prevented them from being sued over material posted by users. ‘No longer are tech companies the underdog upstarts,’ he said. ‘They have become Titans.’ As the referred to titanic struggle continues, we think that lawyers as well as general readers will certainly perceive an urgent need to acquire this book. The date of publication of this hardback fifth edition is cited as at 31st December 2019. ■ ISBN: 978 0 41404 789 1 Sweet & Maxwell/Thomson Reuters www.sweetandmaxwell.co.uk


Accounts

What does the Fifth Money Laundering Directive (5MLD) mean for solicitors? In case you didn’t already know, 5MLD is due to come into effect on 10 January 2020. 5MLD will amend and strengthen the current Money Laundering Regulations (MLRs). There is a danger that many firms will have overlooked 5MLD because their attention has been taken up by the implementation of the new SRA Standards and Regulations. All firms – and individual solicitors, thanks to the new SRA rules – have a professional duty to comply with the AML regime if it applies to them. Most SRA-regulated law firms (around 7,000) are already caught by the current MLRs. Having been disappointed by the profession’s apparent relaxed approach to AML, the SRA has set up an internal task force to target compliance with the MLRs. Statutory compliance with 5LD is not to be confused with the new SRA requirement to identify your client (Rule 8.1 of the Code of Conduct for Solicitors). That is a separate rule that applies to all work, regardless of whether it falls into the scope of the MLRs. It is an absolute minimum that all solicitors now have to follow. (Yes, even litigators.) 5MLD is not as big a leap as the last overhaul in 2017. Here are the changes that will be most relevant to solicitors: 1. Expanding the requirement to conduct customer due diligence (CDD) on clients already known to you (e.g. when the client’s details change), and on companies and trusts (including proof of registration on mandatory beneficial ownership registers – the ‘PSC’ register at Companies House). 2. Additional due diligence requirements when dealing with high risk jurisdictions – including what is known as ‘super-enhanced due diligence’. 3. Reliable electronic verification systems are explicitly permitted to be used in CDD. 4. More certainty over PEPs – the government is required to give us information about the PEPworthy roles and positions. 5. Increasing transparency in beneficial ownership through expansion of the registration requirements for companies and trusts, and the availability for their inspection. This will include an obligation on solicitors to notify Companies House of any discrepancies between the official ‘PSC’ register and the information held by you. But won’t Brexit mean that the EU’s AML regime becomes irrelevant? Unlikely. We now know that 5MLD will be in force before the UK leaves the EU. Looking to the future, it is hard to envisage a scenario where the UK government does not at least keep in step with the EU’s rules on AML. In fact, the Sixth Money Laundering Directive (6MLD) is due to be implemented at the end of 2020. ■

A cautionary tale about reporting to the SRA A few weeks ago I received a panicked phone call from a solicitor’s firm. “We need your help. We have a problem,” said the Head of Compliance. “We think one of our senior solicitors has done something really daft,” she continued, suddenly becoming uncharacteristically sheepish. “Oh? In what way?” I replied, in my best attempt to elicit information through open questioning. “Well…you’ll never believe this…it’s completely out of character, mind you…I don’t know what came over him really…” Intriguing. “He’s sent a witnessed document to the other side, which he simply can’t have executed properly because we – and the other side – know that the client is overseas at the moment. So they are suggesting that it has been falsely witnessed.” Dramatic pause. “What do we do?” All this happened before the introduction of the SRA Standards and Regulations on 25 November 2019. Had the same happened now, the outcome might have been very different. On the face of it, and without knowing the full facts, sending out a misleading document that purported to be witnessed could be an act of dishonesty. Dishonesty, if picked up by the regulators, will be taken very seriously as a breach of the SRA Principles and is more likely than not to result in a strike-off at the SDT.

time, solicitors are required to “report promptly…any facts or matters that you reasonably believe are capable of amounting to a serious breach…” (Para 7.7 of the Code of Conduct for Solicitors). The words “promptly” and “capable of” are important here. They suggest that we should be making reports to the regulator before we have concluded our investigations. The rules go on to say that we must “inform the SRA promptly of any facts or matters that you reasonably believe should be brought to its attention in order that it may investigate…” (Para 7.8 of the Code of Conduct for Solicitors). “Should” is subjective, but clearly any suggestion of potential dishonesty is going to be caught. Which means that the guilty party in our scenario would have, almost certainly, been reported by his firm, and thereafter subjected to a lengthy (and potentially costly) SRA investigation. As it turns out, a fairly swift investigation showed that there was a completely innocent explanation. There was perhaps an element of recklessness and human error, but no intention to deceive. The other side accepted the explanation, and no harm was done. Under the new rules, withholding a prompt pre-investigation report to the SRA would be much harder to defend. ■

Jonathon Bray Director

Jonathon Bray supports COLPs, COFAs and ABSs in risk and compliance.

The firm has a duty to report serious breaches to the SRA. However, as we all know, context is all. Facts matter. And to form a sensible conclusion about a person’s behaviour and whether something serious enough to report has in fact happened, one needs to conduct at least some investigation. This is where the new reporting duties may cause some problems. For the first

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Legacies

Angus... At 16 years old, Angus the Jack Russell Terrier was the oldest resident at Dogs Trust Ilfracombe when he arrived after his owner sadly passed away. Thankfully his owner had signed up to Dog’s Trust’s Canine Care Card, a free service that aims to give owners peace of mind, knowing that Dogs Trust will look after their dog if the worst should happen. He has now been rehomed to the perfect family where he will spend his golden years! Elise Watson, Rehoming Centre Manager at Dogs Trust Ilfracombe, said: “Many dog owners worry what might happen to their dog if they were to pass away first, leaving their beloved four-legged friend without an owner. However, the Canine Care Card scheme offers reassurance to dog owners, and also helps to ease the minds of friends and family during what is already a distressing time. But it means you can rest in the knowledge that your dog will be cared for after you die and just like Angus, will go on to find loving homes that are right for them.”

Canine Care Card holders receive a wallet-sized card which acts in a similar way to an organ donor card and notifies people of their wishes for their dogs, should anything happen to them. Dogs Trust works hard to match every dog with a responsible, loving home. If for any reason a dog takes a while to be rehomed, owners can rest assured that Dogs Trust never puts a healthy dog to sleep and will care for them for the rest of their lives. If you would like to request Canine Care Card forms that you can give out to your clients please call 020 7837 0006 or email ccc@dogstrust.org.uk and quote code 334414. ■

Who’ll keep him happy when your client’s gone? We will – as long as your client has a Canine Care Card. It’s a FREE service from Dogs Trust that guarantees a bereaved dog a home for life. At Dogs Trust, we never put down a healthy dog. We’ll care for them at one of our 20 rehoming centres, located around the UK. One in every four of your clients has a canine companion. Naturally they’ll want to make provision for their faithful friend. And now you can help them at absolutely no cost. So contact us today for your FREE pack of Canine Care Card leaflets - and make a dog-lover happy.

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www.dogstrust.org.uk Registered Charity Numbers: 227523 & SC037843

32 The BILL of Middlesex


Book Review

Wills: A Practical Guide 2nd edition By Lesley King & Peter Gausden A most important single work for all involved in matters concerning wills offering a short practical guide from Wildy. An appreciation by Elizabeth Taylor of Richmond Green Chambers & Phillip Taylor MBE, Head of Chambers, Reviews Editor, “The Barrister”, and Mediator.

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f you are facing difficulty over a will, this is the book for you! Wildy Simmonds and Hill excel in producing these short practical guides in areas of law which are highly relevant to both unrepresented parties and practitioners alike. Professor Lesley King, and solicitor Peter Gausden, have updated their work on “Wills” with a second edition for 2019 after the paperback first appeared in 2011. It is an excellent short statement of the law at a time when litigation over disputed wills “is sadly on the rise”. Costs in such matters can easily swallow up the whole of the modest or moderate estates as many reported cases in the newspapers illustrate. An additional problem well known to practitioners and commented on by the authors is that “just as bad as the financial waste are the irreconcilable rifts and misery that bitter family disputes can cause”. A problem we are all too familiar with. For these reasons, the book is an absolute must for those tempted to litigate where such a course of action should be avoided if possible. King and Gausden set out what are involved in making a will, with reference to avoiding those issues which often given rise to litigation. The purpose behind this work is to inform people who know little about making wills but need to know more in the hope that “readers will avoid costly mistakes”. They do just that! The authors provide information on the formalities for making a will, the rules on testamentary capacity and related issues, which may affect the validity of the will. They include sections on less common aspects of will-making which often cause problems for practitioners. These areas include gifts for the benefit of pets, gifts to employees, gifts of business interests, mutual (as distinguished from mirror) wills, testamentary options, burial and other requests and dealing with property overseas to name but a few. Such matters are covered by reference to the new rules on

the interpretation of wills resulting from the UK Supreme Court’s decision in Marley v Rawlings. It is a practical concise guide that reviews the inheritance tax implications of will planning and drafting are covered along with typical strategies for dealing with family wealth by making best use of the exemptions and reliefs available. They have included a chapter aimed at dealing with drafting pitfalls and, more importantly, how to avoid them. Of course, problems can arise if the existence of a will is uncertain and so there is a helpful section on storing and locating a will. The book also gives us a selection of useful precedents and checklists at the back which we found extremely helpful. The publication date of this paperback second edition is cited as at 30th September 2019. The law is stated as at 31st May 2019. ■ ISBN: 978 0 85490 274 3 Wildy, Simmonds & Hill Publishing www.wildy.com

The BILL of Middlesex 33


Software

Clio help the legal community navigate the challenges of COVID-19

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s the situation surrounding COVID-19 continues to evolve, some things haven’t changed: Clients need their solicitors, some now more than ever. Yet law firms are struggling with the same challenges of many other businesses. While they may be required to practice social distancing or even self-quarantine, it doesn’t mean that their overhead costs are eliminated or that they don’t still need to meet with clients. Combine this with the fact that courthouses are shutting down, and law firms have to find new ways of working remotely – fast. Decisions about firm operations are needing to happen overnight with many law firms moving to cloud-based services for the first time. What is clear is that legal professionals provide an essential service to their communities, and that there is an industry transformation occurring in the coming weeks that would previously have transpired over the next 5-10 years. They need support from legal technology companies now more than ever, so they can continue to serve these communities. That's why we are committing $1 million USD to help the legal community navigate the challenges of COVID-19. Any legal professional or organisation globally who is in need can apply for aid based on the three pillars of support below: Financial Aid for Clio Licenses We’ll be offering financial assistance to offset the cost of Clio to law firms that need the flexibility to work remotely. Financial Aid for Law Firms and Legal Organizations If a law firm or legal organisation is struggling to maintain business continuity, needs additional support moving to the cloud, or is a non-profit or charity providing mental health support to legal professionals during this time, they can apply for direct financial support. Educational Support We're collaborating with industry leaders, including bar associations and law societies around the world, to deliver exceptional educational resources and consulting expertise that will help law firms navigate these challenging times. Please let me know if you are interested in speaking with Jack Newton, CEO and Co-Founder of Clio, about how this pandemic has affected the legal industry and why we are committing to this relief initiative. You can also learn more and read a statement from Jack about Clio’s COVID-19 Legal Relief Initiative at clio.com/uk/covid-relief ■

34 The BILL of Middlesex

Live Chat for solicitors – How to talk to prospects visiting your website in real time, win more instructions and grow your practice whilst working from home (even during a pandemic)

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esults from recent studies have hailed Live Chat as the most popular form of digital contact. With 46% of potential clients preferring to speak via Live Chat over sending an email or speaking on social media. If you’re not using Live Chat, you are missing out on regular opportunities to win more instructions via your website. As an effective way to speak to prospects remotely too, this tool could also help you to grow your practice, even when your office is closed due to COVID-19. What is Live Chat? It’s the little box that pops up on a website with an instant message from someone asking if they can help. The reason why Live Chat is such a powerful tool is that you can provide prospects with instant support and answers while they browse your site. To put it simply, the quicker your response times are, the more likely you are to secure their instruction. Especially in a time where people expect answers fast. With your office being shut due to COVID-19, it’s also a fantastic way to build relationships with prospects remotely. Live Chat means you’ll always be in the right place, at the right time. Which is why you should consider using it. But what’s the best way to manage it? Live Chat can be powered in 3 different ways:

1. Via Artificial intelligence (AI) Something called a ‘chatbot’ can reply to your client’s questions using pre-programmed answers. 2. Via a 3rd party Another company or person outside of your practice can reply to your chat requests and pass on any information. 3. DIY / manage it in-house A trusted member of your team can manage your chat requests and start building an authentic relationship instantly. I advise managing your chat requests in-house because no-one else can do a better job of securing instructions than you or your team. I created Law Firm Leads to help solicitors convert more ‘website traffic’ into instructions. We do this by combining the following 3 tools into one, very affordable monthly package: – Data Capture System (using educational guides to capture your prospect’s data) – Live Chat – Heat mapping / visitor recording If you’d like to learn more about Live Chat and how we have been helping other solicitors get new instructions, please visit our website and arrange a time for us to have a chat: https://www.lawfirmleads.co.uk ■


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The Bill of Middlesex Spring 2020