Modern Law Magazine - Issue 25

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Issue 25 August 2016 ISSN 2050-5744

The Business of Law

Neil Smith

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Editorial BOARD Adam Bullion GM of Marketing InfoTrack

Matthew Claughton Managing Director Olliers Solicitors

Andy Poole Legal Sector Partner ArmstrongWatson

Maurice Power Managing Director Ferguson Litigation Funding

Anthony Allenza Sales Director BMS Funding

Noel Inge Managing Director CILEx Law School

Anthony Pearlgood Managing Director PHS Data Solutions

Olly Cheng Chartered Financial Planner Saunderson House

Chris Nichols Regulatory Project Manager Legal Services Board

Paul Philip Chief Executive Solicitors Regulation Authority (SRA)

Christian Eagle Head of Department, Commercial Dispute Resolution Ralli Solicitors

Paul Rolison ACA Director Cyber Strategies Ltd

David Simon Chairman Triton Global Dr Hugh Koch Clinical Psychologist and Director Hugh Koch Associates Joe Reevy Managing Director Kevin Ferriby Managing Director Informed Financial Planning Lesley Graves Managing Director Citadel Law Lloyd Ellison Director of Account Management and Client Engagement Specialist Tikit

Richard Burcher Chairman Burcher Jennings Robert Bishop Sales Director VFS Legal Funding Ross Weldon Marketing Specialist Clio EMEA Sarika Sangar Marketing Executive Conveyancing Data Solutions Stephen Robinson Managing Director Xyone Cyber Security Tom Dodd UK Marketing Team entrustIT

WELCOME elcome to the latest edition of Modern Law Magazine! In this issue, I speak to cover star Neil Smith, the Financial Director at the first UK law firm to list an IPO on the London Stock Exchange, Gateley Plc. Neil told me about the challenges that come with a new corporate structure, and explained why he is keen for other firms to follow suit. Read the full interview from page 13-15.


Innovation in the legal sector is certainly not a new concept and is regularly discussed across industry forums. One person who has long advocated that law firms embrace technology and innovative business models is Mitchell Kowalski. The Canada-based adviser on the redesign of legal services told me about why many ‘new entrant’ firms in the UK are still struggling to compete financially with traditional partnership models and how technology will continue to improve the legal sector. Read the full interview on page 17-19. The first ever Eclipse Proclaim Modern Law Conveyancing Awards took place on 14th July at the Rum Warehouse. For a run-down of the evening, and to find details of all the winners, have a look at page 46-49. The event will return in July 2017 so please keep an eye out on our website, for more information and details about how to enter. Completing our conveyancing focus for this edition is the Chairman of the Council of Property Search Organisations (CoPSO), James SherwoodRogers. In his feature on page 55, James considers the potential ramifications of the privatisation of the Land Registry. The Eclipse Proclaim Modern Law Awards returns for the fourth time later this year and will take place on 10th November at the Hurlingham Club in London. The Shortlist is available to view at General sale tickets will be available from 3rd October so please visit the website for bookings. I’m also delighted to announce that the Eclipse Proclaim Modern Law Conveyancing Conference will return in March 2017. I hope you enjoy this issue of Modern Law and if you have any comments or suggestions for a future issue, I would love to hear from you. Please get in touch with me via the details below. Happy reading!

Issue 25 August 2016 ISSN 2050-5744 Group Editor Charlotte Parkinson

Production/Editorial Assistant Brendan Gurrie

Project Manager John Margett

Events Sales Kate McKittrick

Charlotte Parkinson, Group Editor, Modern Law Magazine. @modernchar 01765 600909

Modern Law Magazine is published by Charlton Grant Ltd ©2016.

All material is copyrighted both written and illustrated. Reproduction in part or whole is strictly forbidden without the written permission of the publisher. All images and information is collated from extensive research and along with advertisements is published in good faith. Although the author and publisher have made every effort to ensure that the information in this publication was correct at press time, the author and publisher do not assume and hereby disclaim any liability to any party for any loss, damage, or disruption caused by errors or omissions, whether such errors or omissions result from negligence, accident, or any other cause.

August 2016

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EdiTorial Board


07 Glyn Morris Talks News


The Partner and Head of Finance (NonLawyer) at Higgs & Sons explains how successfully embracing the performance driven behaviour of the professional can make innovation stick.

13 Neil Smith

Charlotte Parkinson, Modern Law, spoke to the Finance Director of Gateley Plc, the UK’s first law firm to list an IPO on the London Stock Exchange, about what it’s like to be the first UK commercial firm to float, and why he is calling other firms to follow suit.

17 Mitchell Kowalski

Charlotte Parkinson, Modern Law, spoke with the author, advisor and innovator in legal services, in advance of the launch of his second book in 2017, about why new entrants are still struggling to take a bite from traditional firms’ revenue, and why in his view, technology only gets better.


21 Getting single assessment right

Paul Philip, Solicitors Regulation Authority (SRA).

23 Unregulated providers - getting to know the competition

Chris Nichols, Legal Services Board (LSB)

25 Client engagement through personalisation of content

Lloyd Ellison, Tikit

25 Changing the service provided to Claimants

Dr Hugh Koch, Hugh Koch Associates

27 Confidential Waste

Christian Eagle, Ralli Solicitors

27 Pricing Options

Andy Poole, Armstrong Watson

EDITORIAL BOARD contributors

29 ‘Without data, you are just another person with an opinion’

Richard Burcher, Burcher Jennings

29 How to avoid data protection breaches

Anthony Pearlgood, PHS Data Solutions

31 Should firms be forced to publish data on complaints and pricing?

Kevin Ferriby, Informed Financial Planning

31 No more tinkering

David Simon, Triton Global

33 What you can learn from the most popular gaming app in the world Adam Bullion, Infotrack AmTrust Law

An AmTrust International Division

33 Q: My client is entering into a priorities agreement with ATE insurers, third party funders and us. What should we keep in mind here?

04 Modern Law

Matthew Williams, AmTrust Law

August 2016

MODERN LAW Issue 25 August 2016 ISSN 2051-6495

EdiTorial Board



35 On board with comparision sites


Joe Reevy,


35 What’s your exit strategy? Olly Cheng, Saunderson House

36 5 Not So Obvious Reasons Why Legal Documents Should Be Cleaned

Dean Sappey, Co-founder and President, DocsCorp.

37 Post-Brexit Funding

Robert Bishop, VFS Legal Funding

37 Legal apprenticeships: a successful innovation Noel Inge, CILEx Law School

39 The ethics of AI

46 Eclipse Proclaim Modern Law Conveyancing Awards 2016

Ross Weldon, Clio

39 Uncovering the sinkhole problem

Sarika Sangar, Conveyancing Data Services

40 How can we avoid data breaches, and the huge fines that are involved?

40 Who is afraid of continuing competence? Yehuda Solomon, VinciWorks.

41 Beware of breaching client confidentially in M&A due diligence

41 Can the new CPD approach benefit conveyancers? Susan Fairbrass, Geodesys

Tom Dodd, entrustIT

43 New approaches to financing insolvency litigation

Maurice Power, Ferguson Litigation Funding

43 Legal Services: removing barriers to competition - five things you should know.

Charlotte Parkinson, Modern Law, spoke to Vanda James, President of the Kent Law Society and Partner at Cripps LLP, about her hopes for her tenure and the role of the legal profession in the future.

53 The show-stopping impact of cybercrime

Lesley Graves, Citadel Law

42 The solution to your cyber security worries? The Cloud

Litigation is deadly serious. Lawyers must prepare for it very carefully, and that is a lengthy process. Mediation is different – or is it? Chris Makin reports.

61 Case Study Eclipse Legal Systems

50 Regional Focus: Kent

Stephen Robinson, Xyone Cyber Security

The first Eclipse Proclaim Modern Law Conveyancing Awards took place on 14th July at the Rum Warehouse, Liverpool. Charlotte Parkinson, Modern Law, takes a look at the winners and summarises the inaugural event.

59 How to prepare for mediation

Guinness World Records holder, Thomson Snell & Passmore, implements Proclaim Case Management solution

10 MINUTES WITH 62 10 minutes with…

Christina Blacklaws

Paul Nixon, a Partner at the Ashford office of top-20 accountancy firm, Wilkins Kennedy, talks about the firm’s work with solicitors to help them build awareness of the dangers of fraud to their organisations.

55 Land Registry privatisation: will the government listen?

James Sherwood-Rogers examines the potential implications if the Land Registry is privatised, and explains why the government’s Call for Evidence comes at an opportune time.

57 Marketing Tech? Nice pen, shame about the service

Our resident IT guru Charles Christian writes…

Matthew Claughton, Olliers Solicitors

45 Are you ready to answer client questions about security?

Paul Rolison ACA, Cyber Strategies Ltd

45 Osbourne Changes - PI Case Funding NO interest & NO Charges Anthony Allenza, BMS Funding.

August 2016

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Over 20 years of Medico-Legal excellence (Tier 1 MRO) Market Leading Service Unrivalled in-house Medical Expertise D e d i c a t e d Te a m s f o r H i g h V a l u e C l a i m s


Glyn Morris TALKS NEWS The Partner and Head of Finance (Non-Lawyer) at Higgs & Sons explains how successfully embracing the performance driven behaviour of the professional can make innovation stick.


arnessing the power of the idea

Higgs & Sons is a medium-sized law firm employing 240 people. Founded in 1875, its heritage suggests it is a highly traditional firm, but in practice Higgs is the epitome of a modern, innovative law firm - you may even say a law firm of tomorrow. One dictionary defines innovation as: ‘(the use of) a new idea or method’, yet invariably when we think of innovation in today’s hi-tech world our ‘go to’ perception is to think of a new piece of software to improve efficiency, or a technology to enhance performance. Yet we believe to focus purely on technology is too narrow a response – a search for an externally conceived bolt on solution to an often poorly defined problem, when the real answer may lie much closer to home. So how has Higgs & Sons managed to weave innovation into the DNA of what some may regard as the embodiment of a traditional, full service law firm? How do we innovate in a business so governed by rules, regulations and decades (if not centuries) of accepted legacy working practices?

Welcome to the power of the idea.

Of course technology and infrastructure are important to ensure the tools you are using are fit for purpose and do not hamper performance due to outmoded or redundant technology. But we believe that true innovation lies not in the tools we choose, but the ideas behind them, and therefore the real power, the power to transform, originates in the mind of the lawyer. For those familiar with the 2011 Oscar winning film Inception, there is a key scene in which the main character Dominick Cobb states: “An idea! Resilient, highly contagious! Once an idea has taken hold in the brain it is almost impossible to eradicate. An idea that is fully formed, fully understood. That sticks. Right in there somewhere.” The world of science fiction and law may not be obvious partners, but when it comes to innovation, we believe the idea of an idea is the most powerful, yet most underutilised tool at the disposal of a law firm management team.

Cultural change

At the recent Legal Horizon’s conference held in Chicago, the delegates and speakers from the evolving areas of process improvement and service delivery enhancement looked at how law firms can (and should) embrace new ways of delivering legal services. One of the overriding themes that came through was that culture and openness to change offer the ultimate key to unlocking successful adaptation and improved service delivery. That is, real change can only come from a new way of thinking. However, innovation needs to progress beyond the cultural change in order to find a way of harnessing the power of the idea into a tangible working solution. Fine in theory, but how do law firms go about doing this in practice? For Higgs & Sons the solution lay in a collaboration with the world of academia.

Lawyer Centricity

Is it too contentious to suggest that lawyers themselves are the best arbiters of change? After all, they understand the issues, they

August 2016

We believe that true innovation lies not in the tools we choose, but the ideas behind them, and therefore the real power, the power to transform, originates in the mind of the lawyer recognise the challenges they face and invariably will have ideas on how to resolve them. What they often do not have is the time or the appropriate mechanisms or organisational power to turn their theoretical ideas into practice that will afford positive change within their organisation. This dilemma was the premise on which Higgs & Sons’ ground breaking joint project with Aston University Business School was developed. Through a Knowledge Transfer Partnership programme part funded by the European Regional Development Fund (ERDF), Higgs’ began to address the challenges faced by a typical law firm by providing a mechanism through which the wealth of ideas - accrued through years of knowledge and experience - inherent within the organisation, could be designed and implemented as viable working practices. The issue therefore was not the paucity of ideas, but how to extract them given the multiple challenges of:

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It seems simple, but the luxury of being able to step away from workloads into dedicated discussion groups, allowed fledgling ideas to become fully formed proposals with due consideration given to any potential issues or drawbacks

The ‘suite’ smell of success

A vast array of tools, methodologies and prototypes have been combined into the resulting Higgs Service Suite - essentially two frameworks, fully formed, fully understood: • High volume, low variety /complexity • Low volume, high variety / complexity. This holistic approach is beginning to achieve, more consistently: 1. Optimum scoping and pricing 2. Efficient production 3. Exceptional service delivery. To describe just two elements of the Higgs Service Suite being used in the firm now:

• Workload – how to make time in lawyers’ overcrowded schedules to allow them to impart the knowledge they had amassed over the years • Natural caution and traditionalism - lawyers are trained to be risk averse, so allowing them the freedom and confidence to put forward ideas that may challenge the ‘accepted norms and practices’ of their profession can be in itself a challenge • Cynicism – a perception (real or imagined) that despite what ideas are put forward, nothing is going to change anyway. Given these challenges, how did we, ‘make our lawyers’ innovative ideas stick’?


One of the project’s major benefits was its scale; ‘Change something within your control’ was an overriding mantra for the programme. In establishing a series of cross-functional teams, participants were given that most precious of commodities – time. Time to consider, discuss and put forward their ideas in an environment away from the pressures of day-to-day work commitments. It seems simple, but the luxury of being able to step away from workloads into dedicated discussion groups, allowed fledgling ideas to become fully formed proposals with due consideration given to any potential issues or drawbacks. Each discussion group was also empowered to work autonomously as an action team, in order to address long standing problems, with the reassurance that yes, things would be implemented.


Process Oriented Holonic or PrOH modelling (developed by Professor Ben Clegg at Aston) is a tool to aid organisations design business processes and information systems to improve performance. Based on the concept of Holonism – the state of being both a whole and part of something, PrOH helps in the visualisation of abstract or intangible concepts (ideas) through, amongst other things, structured brainstorming. PrOH modelling has been used extensively in manufacturing where organisations such as GEC Marconi and Rolls Royce have used PrOH to maximise the potential for innovation from within. Higgs recognised that applying the principles of PrOH modelling to a professional services organisation would offer lawyers a unique mechanism through which they could drive through even greater innovative work practices within the organisation. The firm engaged with employees at all levels, essentially providing Higgs with a conduit through which ideas could flow and be transformed into tangible, workable solutions. The firm did not require millions of pounds of investment and a radical shake up of an organisational structure however; its path to innovation was more of a quiet revolution, focussing on finding ways to harvest those small ideas - the ones that were already present within our lawyers.

08 Modern Law

BMI Budget Matter Indicator: A control centre where matter triggers are selected by the lawyer, and they may also launch emails to finance and generate templated letters to clients. It is the high level of customisation involving the lawyer that has made it stick. Case Assessment Radar: We reverse engineered ‘difficult’ files and designed clarifying questions to avert issues before they begin, making best practice consistent. CAR helps manage client expectations and costs throughout the progression of the case and takes them on a journey toward price certainty.

Great interest

The firm received outstanding publicity and recognition for its work, achieving ‘Outstanding’ grade from the Technology Strategy Board, a distinction awarded to very few projects in the UK. Reaching the finals of Best of the Best Awards and being named as a finalist at the Excellence in Practice Awards given by European Foundation for Management Development (EFMD). Following its ‘inception’ (sorry, the pun was hard to resist), Higgs & Sons has shared its idea with over 1,300 people from some 27 countries and its appeal is reflected in the fact that is has been the subject of numerous articles in respected publications across the world. Just now we are shortlisted for Innovative Law Firm of the Year 2016 being awarded by ILTA (International Legal Technology Association), so fingers crossed!

Making the ideas stick

Traditional responses to the cataclysmic issues facing legal service provision only generally go down to three levels: 1. Strategic – merger, scale, new markets 2. Cultural – one firm ethos, projects, training 3. Operational – efficiency, cost cutting and pricing. What few have seen is that there are at least two more levels: 4. the leveraged power of the individual professional - harnessing their performance driven behaviour, and 5. the firm’s cultural context. So our Idea is: ‘Harness the performance driven behaviour of the professional, in the correct cultural context’ because this is what makes innovation stick! The director of Inception, Christopher Nolan, when asked about the end of the film, explained, in essence: ’The lead character is focussing upon the future, he has left an ‘unreality’ behind’. For us, we too, are focussed on what is in front of us: a future of lawyer driven innovation that revolves around our relationships with our clients. One where our ideas and approaches make innovation stick! Glyn Morris is Partner - Head of Finance (Non-Lawyer) and Krishna Balthu is Organisational Change & Project Manager at Higgs & Sons Solicitors.

August 2016


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Neil Smith Charlotte Parkinson, Modern Law, spoke to the Finance Director of Gateley Plc, the UK’s first law firm to list an IPO on the London Stock Exchange, about what it’s like to be the first UK commercial firm to float, and why he is calling other firms to follow suit.


How has the overall business changed since the Initial Public Offering (IPO) was made? What are the core differences in terms of the daily operations of the business?


We now have to comply with AIM Regulations and different elements of the Companies Act, we have to report to external shareholders usually twice a year, but this can be whenever they require an update. We’ve seen this as a real positive because they’re asking some interesting questions about the business. We’re in a sector of one, as a result of being the first UK commercial law firm to be admitted to trading on the AIM market of the London Stock Exchange. We have built a progressive and dynamic firm with entrepreneurial spirit; rapid growth in the last decade has been led by this approach, through challenging economic conditions too. We deliberately said we didn’t want to change the day-to-day operations of the business because the proposition we took to market was that we’d grown the business over the last ten years by over 14% in terms of turnover and profitability. We did that with a mixture of both organic and acquisitive growth in order to expand our national platform. Our bold move to go public embodies the firm’s ethos, which is to think as big as our clients do. Our strategy is to differentiate ourselves, incentivise our people to retain and attract the best talent in the industry and become a law-led business services group through diversification.


What have been your core priorities over this time of change?

Transitioning to a different corporate structure; from an LLP to a Plc. There is still a legacy of the partnership profit that hadn’t been distributed, and the tax on that profit had to be transitioned from the old LLP to the Plc, which is a two to five year journey. We changed our debt structure and borrowed some money from the banks because we are no longer borrowing from partners. Our main priorities will always be clients and people, we now have a model that offers all our staff (not just the lawyers) ownership of the business. The transition from LLP to Plc gives us more tools in the box to be able to incentivise our people in different ways going forward. Our staff are responding well to our different structure.


You also act as Compliance Officer for Finance and Administration (COFA) for the firm as well as being the FD. Has anything about your role changed specifically or become more complex during the last year?


Having to comply with the AIM regulations has been the biggest change. Specifically, I have to report twice yearly to the market and meet our external investors on a regular basis, generally twice a year. If they were to call and ask to speak to me

August 2016

By far the largest change is in the years to come which will be our enhanced acquisition capability and the opportunities this will bring in integration of different complimentary businesses in different sectors

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Our structure is now more in line with the structure of our clients, so our people, over time, will become even more in tune with the challenges our clients are facing at any time, they’re obviously free to do so. They are asking me unique questions about the business because they look at it from a completely different angle in terms of how their investment is going to grow and how they can support our business through future investment.


Are there any other big challenges or changes you’ve experienced as a firm since listing?

Keeping up with the change, there is quite a lot to do, both internally and externally and it can be challenging to keep up, but we have always been used to that at Gateley. We are embracing it because it’s a huge opportunity for everyone in the business. We have a dedicated bunch of people right across the business who have worked extremely hard to get us to this point. That’s why, as much as anything else, the transition is going so smoothly and why we are confident about our continued success in the future. There are big opportunities for our support staff too as it impacts them all. I can immediately think of new projects that we have already had to implement and manage, such as our Client & Market Development team focusing on our brand enhancement and new investor website. Our Finance team have had to look into new reporting requirements as a result of the new corporate structure and our market reporting demands, our IT infrastructure and HR requirements have also had to implement change too. But by far the largest change is in the years to come which will be our enhanced acquisition capability and the opportunities this will bring in integration of different complimentary businesses in different sectors. We are blazing the trail in this new structure that we have created. It’s new, it’s refreshing, and it’s exciting.


Has the firm changed for its clients since becoming listed?

Just less than 4% of our ownership is by clients who invested in Gateley at the time of the IPO. In that respect, we are the only law firm paying dividends to clients. I have no doubt that our acquisition strategy will enable us to offer more value added services to clients. We intend to widen that scope of what we do slightly by acquiring other businesses (most recently Capitus) by offering different service lines that are not necessarily legal, our clients will be able to look at our suite of service lines and come to us for more than one solution. We often work with lots of nonlegal professionals on the projects we’re involved with, such as on property, corporate, employment, they all generally involve lots of other professionals as well.

Law firms should see [Brexit] as an opportunity, because whenever there’s change, there’s generally lots of new contracts and law that need to align with such changes

14 Modern Law


I suppose that’s an advantage of being a commercial firm – in an indirect way, you already have links and relationships with your clients, so prior to listing, presumably certain clients expressed an interest that they may want to take a stake in the firm. Do you think that’s made easier by being a commercial firm?


I believe it is, yes. It gives us a direction to head towards, and it gives our clients a very visible return. Our structure is now more in line with the structure of our clients, so our people, over time, will become even more in tune with the challenges our clients are facing. Our clients are very excited by the opportunities that we can bring to them.


Are there any other plans for further acquisitions as part of the growth strategy moving forwards?

We are constantly, actively looking for acquisition targets. Our clients and partners have initially been the originating source. However, they won’t be our only source for any potential deals. It is important that we make sure we are making the right acquisitions and they are strategically balanced with the existing business.


Could you let me know about any businesses that you are looking at in terms of their specialities?

That would probably be giving the game away too much, but they are in line with the projects we currently work on with our clients. We have all the service lines our clients are likely to need, whether the economy is good or bad, meaning we can do well whatever the environment.


Although Gateley isn’t necessarily impacted by the Economy, what is your take on Britain’s decision to withdraw from the European Union (EU), and how do you think that might affect the legal market?


It is still too early to say; there is a lot of uncertainty out there at the moment. Nobody seems to want to take control and until they do, that uncertainty is going to continue. Law firms should see it as an opportunity, because whenever there’s change, there’s generally lots of new contracts and law that need to align with such changes. There are always winners and losers, but once the uncertainty is over people will have a clearer view on the implications.


Has decision making at a senior level been made more difficult, or been made easier, following the IPO?

We haven’t changed our board structure for the key decision making of the business. There has been no deterioration as we have always had a well-respected Board, which has been trusted by the partnership in the past to make the key decisions for the business. We have added an additional Board at the top, our Holdings Board, which we were required to do so under the AIM Regulations. The three non-executive directors on the Holdings Board are in place to steer the rudder of the ship in the capital markets, making sure that there’s an independent eye watching over the business and ensuring that we are heading in the right direction in the interests of all investors.

August 2016


We don’t have any direct peers within the capital market. We are flying the flag in terms of how we report our results and our business and, more importantly, how we get our message across to external investors


How does the relationship work with the existing Board strategically? Are they answerable in any way to the Holdings Board?


They are answerable to the Holdings Board. We have been extremely impressed with the knowledge and the ability of the non-executive directors; they have been able to understand our business very quickly. It has been really interesting to work with them as they bring a different view of the capital market and external investor needs.


Aside from the new AIM Regulations, are there any other regulatory or compliance issues that have arisen since you became listed?


The answer to that is no. Over and above the market regulation, we haven’t had to face anything that any other law firm hasn’t had to face. There have obviously been some structural changes internally, which is purely as a result of the change in our corporate structure.


Do you anticipate that any other law firms, commercial or otherwise, will follow suit and list on the Stock Exchange, and would you say it was an advantage or a disadvantage to be the first law firm to do so?


The press coverage and the interest from the profession that we had as a result of being the first UK commercial firm to list was phenomenal. We were never a law firm that shouted a lot about our results and how we were performing, we used to operate predominantly based on recommendations from clients for delivering good client service, but we are pleased with the enhanced visibility and strength our new status now brings. The downside of being first is that we don’t have any direct peers within the capital market. We are flying the flag in terms of how we report our results and our business and, more importantly, how we get our message across to external investors. We have always welcomed competition and the mid-market is very crowded, but if any other law firms were willing to dip their toes in the water and join us, we would certainly welcome that. We are just beyond one year post-listing; we are still relatively early in our new journey.


What’s next for Gateley Plc?

We are working towards delivering our strategy and continuing to incentivise our people, as well as further enhancing our offering to clients for their benefit, as well as continuing to deliver on what we promised our external investors. Clients come to us to solve their problems and that won’t change - delivering commercial legal advice is going to always be at the heart of what we do. Now we have a different, more flexible platform to launch our services from which will help to maximise opportunities for everyone.

August 2016

Neil Smith Neil is the firm’s Finance Director and Compliance Officer for Finance and Administration (COFA), as appointed by the SRA to oversee the firm’s compliance with the Solicitors Accounts Rules. While working at Grant Thornton, Neil gained considerable experience of auditing and advising a wide range of AIM, Private Equity and family owned businesses within a number of key sectors. Neil was part of the management team on Gateley’s Halliwells acquisition in 2010. He was promoted to Finance Director in 2011. Neil enjoys playing golf and is a member of Hagley Golf & Country Club. Other interests include spending time with his family, the occasional spot of fishing and watching sport.

We have always welcomed competition and the mid-market is very crowded, but if any other law firms were willing to dip their toes in the water and join us, we would certainly welcome that

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Mitchell Kowalski Charlotte Parkinson, Modern Law, spoke with the author, advisor and innovator in legal services, in advance of the launch of his second book in 2017, about why new entrants are still struggling to take a bite from traditional firms’ revenue, and why in his view, technology will be the greatest disruptor.


How has the structure of the legal industry changed over the last 5 years? 2011 seems like a lifetime ago when I think about change in the legal services industry. At that time, we were in a premature Spring of what many commentators now call NewLaw. New ideas and entrants were still embryonic, and most law firms mistakenly believed that their struggles emanated not from growing structural change in the legal services industry, but from Global Financial Crisis (GFC) fall-out. We were still pre-ABS in the UK, nomadic lawyering was still in diapers, and legal technology meant purchasing the latest update of Word. The biggest thing going at that time was legal process outsourcing. So, while 2011 held out the promise of great legal innovation, it was short on delivery. Fast forward to 2016 and we now see Spring in full bloom. Nomadic lawyering has increased in scale and become normalised - and even undergone some global consolidation. ABS has encouraged a host of new entrants who don’t feel constrained by traditional law firm models. Legal technology has exploded with venture capitalists investing millions of dollars into new ideas, and some large law firms have invested in and built new legal technology. Pure legal process outsourcing seems to have plateaued as a result of this legal technology onslaught and bigger LPO players have morphed into process and tech-driven entities. In terms of other important structural trends, demand for legal work by large corporations has increased over the past 5 years, but much of that demand has been satisfied by the growth of in-house legal teams and the use of non-traditional legal providers. In the consumer legal market, there seems to be a growing willingness on the part of everyday people to undertake Do-It-Yourself legal work for all, or at least part, of their legal needs. Both of these trends will continue.

In short, we’re at the beginning of what I call, The Great Legal Reformation; a large-scale reformation of the legal services industry that will continue throughout the 21st Century. Who are the most innovative/disruptive players operating in the market at the moment and why? When I think of innovative and disruptive players, I focus on those who have truly revolutionised their internal structures (compensation, processes, career path and incentives) as well as their business models. Unless firms are willing to do that, they’re merely innovation dabblers, wading up to their knees in innovation rather than embracing it as core to the business. Most law firms fall into this category; they do some interesting things for small groups of clients, but these innovations are not common or consistent across all practices and offices.


There seems to be a growing willingness on the part of everyday people to undertake Do-It-Yourself legal work for all, or at least part of, their legal needs

New entrants have a clear advantage in embracing innovation,

August 2016

Modern Law 17


We’re at the beginning of what I call, The Great Legal Reformation; a large-scale reformation of the legal services industry that will continue throughout the 21st Century as they’re specifically created for the purpose of disrupting existing players. In the UK, Riverview Law, Lawyers on Demand, Obelisk, Gunnercooke, Inksters and Radiant Law to name a few, have remodeled their thinking and their structures. And despite its current troubles, Slater & Gordon’s strategy of creating competitive advantage around technology, process improvement and a teaming philosophy, remain sound. I’m also fascinated by what Geoff Wild has done with Kent Legal Services, re-imagining what public sector legal teams can look like and how they can operate. In North America, Seyfarth Shaw, Baker Donelson, Littler Mendelson and Hunoval Law are making impressive efforts to remodel themselves around technology and process improvement. And in Australia, I’m a big fan of Kain Lawyers, Hive Legal and Slater & Gordon, which all look structurally different from traditional law firms.


Have new entrants into the legal market (both in the UK and abroad), put pressure on existing traditional players?

It goes without saying that the legal market in the UK and abroad is massive, and new entrants currently lack the scale needed to take a huge bite out of traditional law firm revenue. To date, their greatest impact has been on the psychology of the marketplace; (1) they’ve forced clients to think creatively about how legal services are delivered; (2) they’ve normalised alternative delivery models; and (3) they’ve provided successful prototypes for other innovators to emulate and refine.

It’s this change in mind-set that’s putting pressure on traditional firms. Traditional firms have been successful because, to a large degree, there have never been any viable and accepted alternatives to their model. Now that there are, traditional firms are forced to react. How will the adoption of Artificial Intelligence (AI) impact the legal market and will AI only have a place in the volume/ low value end of the market? The entire legal marketplace, whether large firm or small, low value or high value, will be utterly transformed by AI. At the small and solo end of the market, AI will allow these players to do more work, and to do higher value work. It will also further encourage a consumer DIY mentality toward legal services. AI’s greatest disruption however will be at the large law firm level. The foundation of successful large law firms is revenue generation by human beings within that firm. Further, the prestige associated with many law firms is also centered on size; “we have the largest number of lawyers,” or “we have the most offices.” But with a robust AI system and platform, any law firm will be able to achieve the scale needed to undertake any file without hiring large numbers of lawyers. AI will also allow legal work to be done in different languages without a team of human language experts.

And, AI will allow humans without a law degree to do much higher value work, further reducing the need for lawyers. This will cause massive change to the size, structure, geographic location, career paths and compensations models of large firms. AI will do away with all the reasons to be a behemoth, as size will no longer matter. Will AI will replace all lawyers? No. Not all of them. AI will be able to do some things better than lawyers, and lawyers will always be able to do some things better than AI. But the magic truly happens when you put lawyers and AI together. The question then becomes, how many lawyers do we really need in such a world? And how many law schools will shut down as a result of the reduced demand? What other types of technology have the potential to be disruptive in the legal market? Machine learning systems like Kira Systems, which are not true AI, but which allow documentation to be read quickly and accurately for a variety of legal assignments have already been proven to be faster and more accurate than humans. Document assembly tools such as Hot Docs or Business Integrity (recently purchased by Thomson Reuters) allow for more legal work to be done with less lawyers. And expert systems such as Neota Logic allow corporate clients to deal with a host of day-today legal issues without going to a law firm.


The common theme behind these products is that, like AI, they either reduce lawyer headcount or enable existing lawyers to do more work. They also allow non-legally trained personnel to do higher value work and permit clients to DIY. These tools will force law firms to rethink how they do business and allow managing partners to think the unthinkable: lawyerless growth. Have the expectations of younger lawyers entering the legal profession changed in terms of their career prospects? If so, why? For some time I have heard murmurs among large law firm personnel managers that the traditional “associate-topartner” career path is no longer attractive to growing numbers of lawyer recruits. In 2016, that murmur is fast approaching a crescendo! Traditional law firms aren’t quite sure what to do with millennial lawyers for whom money and partnership are not key motivators. Millennials see portfolio careers as normal (and staying with one firm for an entire career as abnormal); they want to be fully involved with decision-making, they want their ideas to be fully considered, they place a high value on personal/family time and are less willing to sacrifice that time for career advancement. This new dynamic threatens the associate-to-partner tournament and will force law firms to alter their career opportunities, compensation models and operational structure. Why are traditional legal practices often slow to innovate. In your experience are firms resistant to change? Change is hard in any organisation. But it’s particularly hard in an organisation that, as Marshall McLuhan said, looks “at the present through a rear view mirror, marching backward into the future.” The legal profession reveres the past and fully expects that what lead to past success will also lead to future success. The motto, “we’ve always done it this way,” reinforces bad models and





New entrants currently lack the scale needed to take a huge bite out of traditional law firm revenue 18 Modern Law


August 2016


AI will allow humans without a law degree to do much higher value work, further reducing the need for lawyers suppresses new ideas. This gives law firms a distorted sense of reality because they’ve created that reality for themselves. Partnerships with significant generation gaps will have the greatest difficulty effecting change as partners at the end of their career have no incentive to invest in anything that does not produce an immediate return on investment. And, it is often such long-in-thetooth partners that control the strategy and management of the firm, making change even less likely. Finally, as a profession, lawyers are risk-averse perfectionists. We don’t like unknowns because they create risk; and by definition, change creates unknowns. As perfectionists, we refuse to see failure during the change process as something that is merely part of the journey toward success. In our minds, any failure is bad and to be avoided at all costs – and the best way to avoid failure is to avoid change. In light of the changing nature of law firms, is there room for a new breed of service providers? Now that the psychology of the legal services marketplace has changed, there are unlimited acres of green fields for new breeds of service providers. Those interested in doing so can easily connect with a vibrant and growing global community of legal innovators/entrepreneurs from a wide range of disciplines who are eager to make their mark during The Great Legal Reformation. What are your views on entrepreneurs and non-lawyers entering the legal space? I’m a huge fan of using multi-disciplinary teams to deliver legal services. Successful law firms of the 21stCentury, will formulate the right mix of technology, people and process to create a unique client experience that will clearly differentiate them from the competition. Unfortunately, most law firms grossly underutilise their non-legally trained members and in so doing, lose valuable ideas and perspectives. I have seen law firms win new work solely due to the efforts of non-legally trained members who took the time to liaise directly with clients, understand service pain points and create solutions for them. If you’re ever feeling a bit down, there’s nothing more exhilarating than getting together with NewLaw entrepreneurs and revisiting legal service delivery through a fresh pair of eyes; with no self-censorship and no judgment. We need more fresh thinking in this area.


Mitchell Kowalski Mitchell Kowalski is the Gowling WLG Visiting Professor in Legal Innovation at the University of Calgary Law School, the Legal Innovation Columnist for Canadian newspaper, The National Post, and the Principal Consultant at Cross Pollen Advisory where he advises in-house legal departments and law firms on the redesign of legal service delivery. He is also the author of the critically-acclaimed book, Avoiding Extinction: Reimagining Legal Services for the 21st Century. Follow him on Twitter @mekowalski or visit his website


Technology only gets better – it never gets worse. I can’t wait to see what legal technology we’ll have by 2025!

August 2016


What is the most exciting thing happening in the legal market in the UK and oversees, at the moment?

Just in case readers missed the gist of my comments to your previous questions, let me spell it out again: T-E-C-HN-O-L-O-G-Y [laughs]. I’ve previously mentioned technology that already exists but it’s important to keep in mind that the worst legal technology that we’ll have over the next 5 years is what we’re using right now. Technology only gets better – it never gets worse. I can’t wait to see what legal technology we’ll have by 2025! What is coming up for you over the next year?


I’m looking forward to continuing my tenure as Gowling WLG Visiting Professor in Legal Innovation at the University of Calgary Law School and to completing my next book, The Great Legal Reformation: Notes from the Field, which will be available in early 2017. I’m on the board of directors for two new legal disruptors, Lawyerlocate.UK and Law Shop Canada, and I’ll be continuing my speaking gigs and consulting assignments. The next 12 months will be busy!

Modern Law 19


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Getting single assessment right The Chief Executive of the SRA outlines the feedback from the first consultation about the effects of the proposed new assessment for solicitors, the Solicitors Qualifying Examination (SQE). olicitors are key to the provision of high quality legal services in the UK and to our enviable international reputation. Regulation has a fundamental role to play in making sure that, regardless of the training route would-be solicitors choose to follow, they all reach the high standards that the public would expect before being allowed to enter the profession.


The need for consistent high standards

The legal services market is changing rapidly, so it is clear to me that training must similarly develop and adapt to remain relevant. That means that we must also address the problem that qualifications are simply not comparable at the moment - multiple courses and exams mean that standards can vary significantly and there is a lack of transparency. Any new assessment needs to be fair and consistent and ensure that new solicitors can meet the high standards that the public and employers expect. For that reason, we are proposing the introduction of a Solicitors Qualifying Examination (SQE), creating a single approach to assessing trainee solicitors to robust, high standards in a consistent way.

Encouraging a diverse profession

It is also important to have varied routes into the profession for people from all backgrounds – a diverse profession is not only representative of the communities it serves, it is also a competitive profession. That is why we have introduced apprenticeships and other routes to qualification. A single assessment will make sure that solicitors who trained at different universities, or enter the profession through alternative pathways, all meet the same high standards. It is key that the costs of the SQE are kept down. At a time when degrees cost £9,000 per year and rising, we should not continue to ask students to spend up to another £15,000 on an extra course on top. And it is not just about the overall costs of qualifying. Currently many students take a real risk, paying up front for an expensive course with no guarantee of a job at the end. Our proposals, with the skills test likely to be taken and paid for at the end of work experience, would put an end to the £15,000 LPC “gamble”. If the LPC or PSC is no longer required, and new, cheaper training options emerge, we think the SQE will make qualifying much more affordable.

Responses to our consultation

We consulted on these proposals over winter, and I was pleased with the degree of interest, with extensive discussion through traditional means and around 2000 people engaging through social media. There were more than 240 formal responses, coming on the back of 18 events where we spoke to a variety of audiences across England and Wales Some feedback was supportive, and we were grateful for the input from organisations such as the Law Society, the Law Centres Network and the Black Solicitors Network. But there were also real challenges raised, particularly from universities and academic

August 2016

Regulation has a fundamental role to play in making sure that, regardless of the training route would-be solicitors choose to follow, they all reach the high standards that the public would expect before being allowed to enter the profession. representative groups. Many respondents felt they needed more detail about how the whole qualification process would work before they could reach a firm view, while others questioned whether the current system was broken.

What next?

We are already responding to the feedback and challenge from our first consultation, reiterating the importance of high standards. And, I have committed to a period of work-based learning as a fundamental part of the process. We have said we will consult in the autumn to help broaden and deepen the debate, so everyone will have the chance to look at the detail and how our proposals all fit together. For example, it will provide a draft of the Assessment Specification, which explains in detail the potential nature of the SQE, its level of difficulty, breadth and depth. In the meantime, we will continue to listen, address the issues and develop our evidence base. As well as in-depth discussions with experts from law firms, universities and training providers, we want to make sure that there is a variety of ways for people to help shape our proposals. For example, we have recently created a LinkedIn discussion group to share and test some of our developing thinking, and get your feedback. Making sure we set high standards is too important to rush through any change. Our priority is getting this right. That is why we are engaging so extensively. And why we have also extended the SQE timetable so that we can work through challenges and get the detail right. I know we still have a lot of work to do. We need to make sure that the SQE is targeted and proportionate while maintaining essential high standards. We will only achieve that with your continued input, so I would encourage you to get involved and let us know what you think. If you want to find out more about the SQE and how to get involved in shaping our thinking, including joining our LinkedIn discussion group, please visit Paul Philip is Chief Executive of the Solicitors Regulation Authority (SRA)

Modern Law 21

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Unregulated providers – getting to know the competition Unregulated legal services providers have long been a feature of our legal services market. However, until now, little was known about them, as Chris Nichols reports. n May, the Legal Services Board (LSB) published two research reports into the unregulated side of the legal services market which, for the first time, start properly to fill this gap in knowledge ( uk/news/latest-research-13/).


The LSB undertook this research because the Legal Services Act 2007 gives us the power to extend consumer protection to unregulated providers (s.163). Before deciding to do anything in this area, we needed to know more about the services offered, to make an informed decision on whether or not to exercise our power. We also felt that it was crucial to understand better the full range of choices that consumers have, to improve our effectiveness in promoting the regulatory objectives set out in the Act. What does this research tell us? It tells us that in addition to doing work that could be done by regulated providers, unregulated providers are finding ways to tap into the huge pool of potential customers who might otherwise not get advice. Our research sheds light on how they are doing this. It is worth bearing in mind that our 2016 legal needs survey found that 64% of consumers do not seek advice when presented with a legal problem (https:// Overall, we found that for profit unregulated providers handle approximately 5% of cases in which a consumer pays for advice. There is significant variation across different practice areas but the five areas where unregulated providers have the highest market share are divorce, property, wills, intellectual property and employment law.

Type of work

Indicative market share

Types of for profit unregulated providers

Family (divorce)

10-13% (2330,000 clients per year)

Fee-charging McKenzie Friends

Property, construction and planning


Wills, trust and probate

7-9% (65,000 wills a year)

Intellectual Property




Online divorce providers

Landlord advice services Tenant eviction services Wills and estate administration providers Specialist will writers DIY/automated providers Trademark and patent providers Invention promotion companies HR/business support services Fee-charging McKenzie Friends

The research shows that unregulated providers have secured their share of the market without being able to rely on title, regulatory status or passing trade (very few have offices). Three explanations for how they have achieved this stand out from our research.

August 2016

We are concerned that a minority of consumers are using unregulated providers without making an informed decision Price transparency

Unregulated providers are likely to advertise fees up front and offer certainty on price. For example, ten out of 11 unregulated divorce providers offer up front fixed fees on their websites. Similarly, unregulated will writers are far more likely to provide consumers with a menu of outline prices than solicitors (76% compared to 44%). We also found that 30% of consumers who did not use a solicitor to resolve a legal problem, did not do so because they assumed that it would cost too much.

Innovation and client acquisition

Unregulated providers devote significant time and resources to developing innovative services to attract clients. For example, the unregulated divorce market is concentrated in a small number of providers with comprehensive online marketing strategies, including buying adwords and investing in search engine optimisation. Clients who type “divorce” into a search engine will instantly be met with fixed price quotes for “quick” and “easy” divorces from providers with online platforms which allow consumers to get going immediately. At the other end of the spectrum, the majority of unregulated will writers offer home visits, minimising the effort required of consumers to make a will.

Consumer awareness of regulatory status

There is some lack of knowledge or ambivalence amongst consumers about regulatory status. We actually found that the majority of consumers who use unregulated providers did check whether they were regulated but a significant minority (35%) did not. Of those who didn’t, the main reasons were: assuming that the provider was regulated (42%); not thinking regulation was important (26%); and not knowing how to check (12%). What does this tell us? We are concerned that a minority of consumers are using unregulated providers without making an informed decision. More can be done to assist consumers to understand the different levels of consumer protection. However, we have concluded that there is not a compelling case for seeking to exercise the powers that the Act gives us in relation to unregulated providers. The research did not identify evidence of significant consumer detriment that would justify further action at this stage. We were also concerned about the feasibility of funding an LSB-sponsored voluntary arrangement under s.163, in the light of limited interest amongst providers and constraints on our power to recoup costs. Beyond the LSB, we hope law firms can also learn from the findings of our research, which provides valuable insights into the approaches that unregulated providers are taking to building their businesses. Chris Nichols is Regulatory Project Manager at the Legal Services Board (LSB).

Modern Law 23

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Client engagement through personalisation of content Businesses are often bombarded by marketing emails. Despite this, effective email marketing that delivers tailored and interesting content remains one of the best ways of engaging and retaining clients. Lloyd Ellison reports.

Changing the service provided to Claimants Aside from ABSs, what other ‘innovative’ business models are there in the legal sector and how are they changing legal services provision for clients?

Lloyd Ellison, Director of Account Management and client engagement specialist, Tikit.

an the civil justice system learn from other sectors about quality and innovative business needs? The legal market has never been more competitive and scrutinised by public perception. The language and culture of civil justice is being influenced, quite rightly, by the concepts and practices of Total Quality Management (TQM) (from the business sector) and Therapeutic Jurisprudence (TJ) (from the medical/clinical/therapeutic sector). Over the next decade, there will be greater emphasis, in my opinion, on bridging the gap between lawyers, barristers and judges, on the one hand, and experts on the other, with both groups giving greater credence to the experiences and perceptions of claimants. ‘Internal’ customer relationships between lawyers and experts are crucial. The lawyer needs to be accessible, efficient and an effective communicator with his ‘P2P’ (professional to professional) colleagues. This is an integral part of a judicial system based on Total Quality Management and Continuous Quality Improvement. Many lawyers, in my opinion, exceed normal expectations for this type of effective win-win relationship style. Research coming out of the Amsterdam Centre for Comprehensive Law has addressed concrete problems in the functioning of the Dutch legal system, which has clear ramifications and implications for legal systems in the UK and elsewhere. In particular, its studies on compelled apologies, effects of compensation on mental health of claimants, and investigation of how claimants and their relatives perceive monetary rewards are innovative studies worthy of inspection. Time and paper management are both ‘suitable cases for treatment’ in the civil justice system and in all other organisations. In the UK, Canada and North America, lawyers have attempted, and in many cases succeeded, in providing solutions to the litigation time inflation, which can often occur. There is a cultural shift towards giving the judiciary the power and responsibility to determine how much time is required for various aspects of case management, rather than accrediting or relying on estimates by counsel and/or lawyers alone. One implication of this is that there needs to be an economic investment in the support judges need to gain sufficient knowledge and expertise on the facts and legal issues involved in each case, in order to give them the confidence to improve strict case management guidelines and timescales. A key aspect of Therapeutic Jurisprudence will be giving greater prominence to treatment and rehabilitation following a valid and reliably assessed psychological injury. This paradigm shift places a greater emphasis on funding and provision of treatment to modify/reduce post-injury psychological symptoms and functional impairment – the concept of ‘reversibility’ articulated in the Russian Civil System in which the claimant is returned to his/her previous pre-index event state, psychologically and physically. We know that individuals can’t ‘return’ or ‘move backwards’ in health terms, but the harnessing of an individual’s in-built resilience combined with appropriate advice and therapeutic intervention are clearly beneficial. Innovation and TJ/TQM will change the provision of legal services for clients.


Dr Hugh Koch, Clinical Psychologist and Director, Hugh Koch Associates.

raditional push marketing, when an organisation ‘pushes’ its product or service at the client, is no longer enough. The chances are that your marketing email will not reach them at the optimum moment and run the risk of being deleted. This is where pull marketing comes in. Pull marketing can help to develop a high value proposition and stickiness for your law firm that in due course ‘pulls’ in customers.


Challenges in email marketing 1. Adding pull to push: Law firms know that they need to ‘do’ email marketing (eMarketing), but many are stuck at the stage of sending out traditional, one size fits all marketing emails that are having a declining impact. This means communicating with, not broadcasting to, existing and prospective clients with engaging, personalised and relevant content. 2. Email reputation: Only 79% of messages from legitimate senders were delivered into subscribers’ inboxes1. Of those undelivered emails 83% were a direct result of poor eMarketing ‘reputation’ of the sender. Reputation scoring systems assess whether email is properly identified in accordance with email marketing standards. The reputation technology tracks data on the decisions made by people receiving your emails and on any ‘bounce backs’. It also collects data relating to email traps – when a known invalid email address is added to an email list to catch out firms using poor quality lists. 3. Compliance: Law firms are expected to demonstrate a good grasp of the regulations when it comes to ensuring privacy, compliance and data protection, but embarrassingly, some of the biggest law firms in the world have failed to lead by example. Legal marketing professionals are starting to move away from Excel-driven email marketing towards using mailing list management solutions such as Mailchimp, Campayn and GetResponse to push out eMarketing. However, the next generation of eMarketing solutions goes so much further, by tapping into the power of integrated digital publishing to combine greater personalisation of push marketing. Personalisation is the final piece of the marketing puzzle. Done properly, push and pull marketing can provide clients with the information that they need, when they want it. More crucially, by enhancing the pull side of marketing, law firms can even create a whole new stream of revenue, with new opportunities to monetise their content. For further information, visit

August 2016


Modern Law 25

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Confidential Waste The Information Commissioner’s Office (ICO) have launched an investigation after clients’ confidential medical records were found in a skip outside the office of a former law firm in Merseyside. Are the penalties for data breaches stringent enough, and how can law firms protect themselves from incurring this type of data breach? aw firms hold an incredible amour of personal data and should be mindful of their obligations under the Data Protection Act 1998. The Act regulates both paper (manual) documents as well as electronic data comprising of personal data.


While law firms must invest heavily in electronic security to protect their computer system from cyber crime, that alone does not ensure compliance with the principles set out in Schedule 1 to the Act and in particular Principle 7 requiring data controllers to take appropriate technical and organisational measures against unauthorised or unlawful processing of personal data. It is vitally important not to dispose of manual records or any personal data insecurely to avoid a breach. As medical records are sensitive data, express consent of the data subject is required to process them and even store them and so disposing of them in a skip is a flagrant breach that should attract a significant fine. The case highlights the need for firms to implement policies and procedures relating to the collection of records containing personal data. Policies must be in place governing the sorting and disposal of data and staff of all levels need to be aware that the disposal of data is a process governed by the Act. Firms are in breach if non-confidential waste is used for even a telephone note containing client information such a phone number. This is often overlooked and goes way beyond notes, as even phones today can contain vast amounts of personal data and so must be adequately protected and not disposed of insecurely. The ICO have a significant degree of power to investigate and impose fines of up to £500,000 but it is a matter of time before a major law firm is exposed for overlooking its obligations and in the meantime, firms must ensure that not only are policies in place but that their staff are trained and aware of such polices and the requirements of the principles contained in the Act. The ICO, in minor cases, will often issue enforcement notices or require undertakings as to compliance, and arguably should be more stringent to deter others from a breach, but medical records contain sensitive information and so a significant fine on this occasion is surely inevitable.

Pricing options How could legal price comparison websites (such as the Law Superstore and the Solicitor Finder) impact the provision of legal service to consumers? noted in the last edition that there is a trend in the legal profession towards fixed fees and that with conveyancing in particular, the move to fixed fees appears to have created a race to the bottom.


The assumption being made on legal price comparison websites is that by making fixed fees more visible across the provision of all legal services, there will be further downward pressure on fees across the board. That is likely to happen if consumers base their decisions predominantly on price and they assume that they are comparing service and ‘products’ like for like. The downward pressure on fees may well happen, but in my view it needn’t be so. The providers of the comparison websites will argue that they support lawyers in making their services more visible so that their overall instructions increase. They will also argue that the public are demanding certainty over costs and as that needs to happen anyway, they are not creating the issue, merely providing a solution for consumers and law firms. If the comparison websites are to truly help both consumers and law firms, they will look to ensure that: • Sufficient information is provided to ensure that consumers can differentiate between levels of service and to ensure that they are comparing like with like; • Sufficiently detailed client feedback is provided on firms; and • There is the ability for law firms to provide a range of pricing options. The key for me will be the pricing options. Research demonstrates that clients rarely base decisions predominantly on cost. They want certainty on the basis of the costs but that does not necessarily mean fixed fees. The options presented could include hourly rate, fixed fee or value based billing. By presenting the options, it will avoid clients merely looking for the lowest fee and help law firms to avoid a race to the bottom. Andy Poole,is the Legal Sector Partner at Armstrong Watson, specialising exclusively in advising law firms. The Law Society has exclusively endorsed Armstrong Watson for the provision of accountancy services to law firms throughout the whole of the North of England.

Christian Eagle, Head of Department, Commercial Dispute Resolution, Ralli Solicitors.

August 2016

Modern Law 27

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‘Without data, you are just another person with an opinion’ How could legal price comparison websites (such as the Law Superstore and the Solicitor Finder) impact the provision of legal services to consumers? here is nothing new about the idea of price comparison websites. However, whether you are talking about insurance services, legal services, hotels, restaurants or anything else for that matter, comparison based purely on price is of extremely limited assistance to anyone, let alone consumers.


A statement from the Legal Services Consumer Panel, reported in the last few days in the following terms, has again reignited the topic; “Making law firms publish details of complaints and average prices on their websites will significantly improve the legal market for clients, the Legal Services Consumer Panel has argued.” Where price comparison websites are fundamentally flawed is where comparison focuses, if not exclusively, then predominantly on price. The methodology is flawed for the simple reason that it is irresponsible to create a comparison architecture that is predicated on the assumption that all lawyers and law firms are precisely the same in terms of technical competence and service levels. If there are going to be comparisons then they should be considerably more nuanced. They should be both qualitative and quantitative and so far as practicable, they should be data driven. This issue of data brings to mind one of the great quotes of W. Edwards Deming, the well-known US engineer, statistician, author, lecturer, professor and management consultant when he opined that, “without data, you are just another person with an opinion”. But it does not need to be hard science to be useful. General accuracy is preferable to false precision. I find the scores on Trip Advisor and Amazon to be quite informative and sites like AdvanceLaw are far less susceptible to fake reviews. In the hospitality environment, satisfaction is inherently subjective but terribly important. Knowing that 100 people subjectively determined they enjoyed a meal is a better guide to action than having a precise measurement of the max temperature of the oven in which the food was cooked. In short, there is nothing fundamentally wrong with consumers of legal services being able to access information that helps them to make an informed buying decision. However, if it is to truly benefit consumers of legal services and the law firms that are being compared, a great deal more thought, care and effort is going to be required, than has been displayed to date with the superficial, simplistic and asinine suggestions of the Legal Services Consumer Panel.

How to avoid data protection breaches Despite the Brexit outcome, it is still possible that UK law firms may remain bound by the General Data Protection Regulation (GDPR), an EU-wide directive which is set to become enforceable in 2018. uring last year, the ICO probed 173 law firms over data protection issues - serving as a wake-up call to all legal practices to have stringent data security systems in place. With reports of security breaches making headline news on a weekly basis, data security is becoming a hot issue.


The GDPR legislation, which is a far more stringent version of the earlier 1998 Data Protection Act, sets out a strict set of criteria with any breaches potentially resulting in fines of up to 4% of a company’s annual worldwide turnover. For large law firms this could mean fines amounting to the new maximum fine of £15.5 million. Given the draconian consequences of non-compliance, my advice to law firms is simple – adopt a risk-based approach to deciding what level of information security you need. What’s more, when considering the disposal of physical data, consider putting data shredding into the hands of a specialist legal supplier like PHS Data Solutions. The risks of your data being misplaced, lost, stolen or wrongfully disposed of are almost completely eliminated; in effect, outsource and mitigate the risk. When outsourcing contractors, it is vital that law firms seek companies which are clearly ISO and ICS accredited and which are accredited also to BS EN 15713:2009 security shredding standards. Much is at stake, as under current and planned GDPR legislation, all company directors are personally liable for the safekeeping and secure destruction of all documents and data which identify living individuals. Section 4 of the GDPR regulations introduces a statutory role of data protection officer (DPO) who can be a staff member or contractor. The imperative is, therefore, to have a secure data security system in place which works best for your legal practice. In addition to outsourcing data destruction, a number of suppliers including my own also offer scanning, storage and long term archiving, which taken as a complete solution provides law firms with total peace of mind. Ultimately no business wants to endure the scrutiny to which TalkTalk was subjected last year. To learn more about the impending changes to the EU General Data Protection Regulation, take a look at the handy graphics prepared by PHS Data Solutions: eugdprinfographic

Richard Burcher, Chairman, Burcher Jennings. Anthony Pearlgood is Managing Director of PHS Data Solutions, a leading player in the scanning, storage and shredding industry for a variety of sectors, including Government, the NHS, pensions, insurance, legal and retail.

August 2016

Modern Law 29

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Should firms be forced to publish data on complaints and pricing? uring a panel session at the fourth annual Modern Law Conference in June, a discussion was held on the topic of enforced publication of data on complaints and pricing by firms (see Modern Law Issue 24).


These are two subjects regularly debated in the national press and by consumer watchdogs in my profession (Financial Services). While it is easy to formulate an argument that firms should be compelled to publish such data in the interests of the consumer, I would caution against it. We only have to look to other industries to see the problems associated with price comparison websites. For example, who hasn’t been disappointed or annoyed when trying to book a £29 flight with a budget airline only to find that “extras” not included in the published price bump the cost up to in excess of £100? This approach of adding costs for items that are not even necessarily optional is driven by the need to quote a low headline price. I would argue that this approach is not in the best interests of the consumer. In the complex world of legal services, my view is that publication of pricing would be even less valuable (and potentially misleading) to the end-user. For me, the main drawback of each firm publishing data on complaints is the risk of malicious or unwarranted complaints being lodged in an attempt to damage a firm’s reputation. We can also use the travel industry to draw a parallel here. Many readers of this article will have used TripAdvisor when booking hotels and restaurants, and very useful it is too. However, many establishments have expressed the concern that they have suffered from undeserved complaints from people seeking to damage the reputation of the business (in some cases competitors – but that wouldn’t happen in the legal profession!). Transparency is undoubtedly in the interests of all concerned but I doubt whether the enforced publication of such data would actually be in the interests of anyone, despite best intentions. Surely when it comes to pricing, getting a detailed quotation, preferably incorporating a fixed fee, would be the best way forward for clients. Firms with poor complaints records could be brought to the attention of the public by the Legal Ombudsman whose process will have filtered out spurious complaints. Kevin Ferriby FMAAT FPFS Chartered Financial Planner, Managing Director, Informed Financial Planning.

No more tinkering Does the market need another review of legal services, as in the case of the Legal Services Act (LSA) 2007? n the context of the UK’s recent bold move to exit the EU, it is interesting to look back on another bold move: the opening up of the Legal Services market less than a decade ago.


The LSA was an experiment; a bold one and one that put England and Wales at the forefront of the legal world in thinking about service delivery. Like Brexit, it was created in a climate of competing claims as to how great a disaster it would be. Those framing the Act chose to assume the worst and provide for a very restrictive regime – expressly to prevent undesirables from acquiring law firms for nefarious purposes. The result was that the structures put in place by the LSA were over-engineered and pessimistic in outlook. Continuing the Brexit theme, it is instructive to see how the UK’s bold lead in market liberalisation has been taken up with varying degrees of enthusiasm in the Common Law world. Civil Law countries, exemplified by the EU, however, have shown no interest in breaking away from centuries-old obsession with lawyer ownership. So how has the LSA fared? There are two competing aspects: • The rigid and over-intrusive regime of regulation and governance has proved not to be fit for purpose; but ironically • The substantive reforms themselves have proved to be popular and workable, with over 600 ABSs launched since 2012. The fact is that “project fear” in the legal world had largely been illusory; and so people are looking at the LSA not to curb the excesses of open market law, but to make it more sensible and user-friendly. The Law Society is even asking for “a level playing field” for ABSs and traditional firms. I am clear, however, that what we do NOT need is another review, an updated Clementi Report. We have already had the Legal Services Board reporting on whether the LSA has achieved its objectives and the Competition and Markets Authority working out whether there needs to be a full review of Legal services regulation (fortunately they concluded that there isn’t). The SRA, after a poor start, has been approaching the licencing of new ABSs in a more constructive way. The May government has enough on its hands already without having to create a new Act, so we should say, “no more tinkering”. We can work within the current framework. David Simon, Chairman, Triton Global.

August 2016

Modern Law 31

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What you can learn from the most popular gaming app in the world ou may have heard of the phenomenon that is Pokemon Go. If you haven’t, it is simply a downloadable app using augmented reality that has proven to be extraordinarily popular. It has already generated over 30 million downloads and hasn’t yet been released globally. So what is it that makes Pokemon Go stand out in what can be considered a crowded gaming app market?


I believe the creators have succeeded in breathing new life into augmented reality, making the users active participants rather than passive consumers. It also cleverly maximises the various elements of a mobile device, taps into people’s imaginations, and most importantly, the game provides an enjoyable experience. So you are probably wondering what the success of a gaming app has to do with the legal industry and the technology used there. Well, the creators have followed some simple rules which I think should be synonymous with the technology being used in the legal world, such as providing technology that is fundamentally enjoyable. Whatever is used has to be simple rather than being a chore. It needs to be easy to access and provide the user with a better way of doing things. Does a conveyancer want to access multiple sites to perform a conveyance? Unlikely. So, it’s important that technology delivers a simple, smart experience for the user who doesn’t want to work harder but rather, smarter. The creators have tapped into the wants and needs of their target audience and brought them to life. It’s an approach that law firms need to be implementing. Identify the individual needs of the important people within a firm - those at the coalface. However, technology that provides conveyancers with a more enjoyable experience can often be difficult to find in a crowded market. Law firms should ask themselves the following questions when sourcing a new provider – is the technology enjoyable? Does it allow me to work smarter? And, does this provide a better way of doing things? If the answer is yes to all three of these questions, then you have found a forward thinking service provider that will challenge and evolve the way you and your team works. Adam Bullion, GM of Marketing, InfoTrack.

Q: My client is entering into a priorities agreement with ATE insurers, third party funders and us. What should we keep in mind here? A: Be clear on potential outcomes 1. A primary concern for those involved in dispute resolution has always been the legal costs, of bringing a claim (Own Costs), and the potential liability to pay opponent’s costs on a loss (Adverse). In recent years, deliberations on costs have necessarily developed to take account of a growing range of options, which can be utilised to limit a client’s costs exposure. 2. The use of third party funding (TPF) and/or conditional fee agreements (CFAs) to cover some or all of the Own Costs risk, and ATE to cover the Adverse is increasingly common. Where the price for these becomes payable on a win, (e.g. any contingent premium/success fees) there will usually be a multiparty priority agreement (PA). 3. Points to have in mind on PAs. • Objective - A PA will determine in what order recoveries are to be split. • Key definitions – One of the most significant will be the definition of ‘Claims Proceeds’. This is usually defined widely and is likely to include both the award and recovered costs. Watch out for definitions incorporated by reference to another document. Where there are multiple agreements, a standalone PA may end up simpler. • Layers - Claims Proceeds are divided into layers. It is their effect which is referred to as the ‘waterfall’. They govern how returns flow. You can expect the first payments to be to funders to repay sums utilised to fund the claim and to ATE insurers to reimburse any claim paid. Contingent premium, funder and legal team success fees and other elements will follow and may be subject to negotiation. The final layer will be the balance to the client. • Outcomes – It can be helpful to run numbers through the PA arrangement to check your understanding of the way the waterfall works in different scenarios. Returns for each layer usually depend on the stage the action reached and sums recovered. There is often a wide spectrum of potential outcomes. • Sense check – Be mindful of the case economics as the matter progresses. Will the settlement potential be retained or could a tipping point be reached, that would tend to push a matter to trial? 4. Whether a solution is suitable/‘works’ on a particular matter, is likely to depend on a mix of ‘number crunching’ and a review of the practical implications. Looking at the operative effect of the PA can give a practical steer and allow for potential problem areas to be addressed. Matthew Williams, Head, AmTrust Law.

August 2016

Modern Law 33


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On board with comparision sites How will legal comparison websites impact the provision of Legal Services to consumers? he proliferation of ‘comparison’ sites has been a feature of the Internet for several years now, and the legal market is no exception. In the near future ‘The Law Superstore’ (founded by ex-Brilliant Law CEO Matthew Briggs) will be joining a market that already includes the well-established LegallyBetter (founded by Fedora Consulting’s Jon Hepburn) and solicitor. info (which founder David Sprake describes as, ‘TripAdvisor for solicitors’) and the relatively new Review Solicitors (the brainchild of the ex-QS head, Salim Areef).


We live in a connected and increasingly ‘consumerist’ society backed by a government committed to increasing competition in all sectors. Should law firms be fearful or should they agree with Jon Hepburn that this a ‘great opportunity for forward thinking entrepreneurs willing to concentrate on service delivery’? Clearly there is belief by these people and their backers that these sites will prove to be a funnel, driving business to the better firms as reviewed. If this is right, then the firms that will benefit most are those which offer the best overall user experience, which, as Matthew Briggs points out, is multi-factored…‘people do not buy the cheapest legal services. They buy on transparency, certainty, reputation…’

What’s your exit strategy? veryone who intends to retire one day is aware of the need to save. Most of these people are also well aware that there are various tax wrappers through which to do this, and will try to use their allowances accordingly. However, just as important as having a clear strategy for saving, is having a long-term plan of how you intend to draw these monies out. The purpose of this article is to set out some thoughts on how to achieve this.


A starting point is to consider the most tax efficient way to draw monies from your portfolio. Currently, a couple have two personal allowances and two basic rate bands for income tax, two £5,000 tax free dividend allowances, and two capital gains tax exemptions to use every year. These need to be taken into account while you are saving if you want to take advantage of them in retirement. A good example is a couple where both partners work, but one earns a significantly higher income. The default position for many people is to maximise pension contributions for the higher earner, while the lower earning partner makes small pension contributions under auto-enrolment. When they retire, the lower earner only has a small pension pot, and has no way of using their income tax allowances. By planning in advance, the couple’s combined income allows the lower earner to use their full salary to make a pension contribution each year (all of which could receive tax relief), building up a much bigger pot from which to draw an income in retirement. This allows them to utilise their personal allowance and basic rate tax band once they stop work.

The key challenges these sites and their users face are: 1. Getting the metrics right so the results are meaningful for their browsers 2. Deriving data for their law firm users which aids process improvement 3. Driving sufficient numbers to users on site to build credible review banks 4. The credibility of the reviews provided. People rarely use law firms, and as such do not have good yardsticks from which to make judgments. The effects on lives of different results are often massive, plus the very complexity of assessing the value for money experience makes comparisons difficult and may undermine the usefulness of many reviews, so it will take time for them to become the ‘TripAdvisors’ of the profession.

Another example is someone who is saving each year in a taxable portfolio of investments, as they have already used up their pension and ISA allowances. They need to be sure that their capital gains tax exemptions are used each year to rebase these investments, otherwise a significant tax bill is being stored up for when these monies are eventually drawn on. The lesson here is to start thinking about these factors early, and if you don’t have the time, employ someone who does. It could potentially save you a lot of tax in the long run. Olly Cheng, Chartered Financial Planner, Saunderson House.

However, there’s little doubt in my mind that these sites will become more and more influential if they are intelligently managed, and if the result is proper data on how firms can improve their business processes (which at least some of them provide), then the sooner you are on board the better, because it is much easier to start well and stay there than rectify a poor ranking, which will be toxic in the longer run as your high-scoring competitors point their web browsers at sites which rank them above other local firms. Joe Reevy, Managing Director,

August 2016

Modern Law 35


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5 Not So Obvious Reasons Why Legal Documents Should Be Cleaned hen it comes to document metadata management, prevention is the best cure. Run a Google search on the term metadata leaks and you will see thousands of examples of law firms, government departments, and political parties having published documents that contained confidential, embarrassing or private information. Microsoft Office documents are a treasure trove of information. Consider the following metadata types in a typical Word document; who created the document; who edited the document; how much time was spent editing the document. Consider also how comments and track changes inadvertently left in a document might prove embarrassing.


Beyond comments and track changes Metadata can be generated in other ways that may not seem as obvious, but are just as dangerous. Consider the following: Hidden text – adding white text on a white background may be invisible to the reader, but it can still be read and displayed by your computer. Simply select all the text in the document and change the colour to black. Embedded objects - it is not unusual to copy part of an Excel spreadsheet, for example, into a document. You may not be aware, but you are actually embedding the entire spreadsheet into the document. Double-clicking on the embedded file will expose the contents of the spreadsheet to the reader. Improper redaction - many authors still persist in redacting text and images using a masking technique. Placing a black box or rectangle over text is not the same as redacting. The covered up text can be easily exposed. Document automation - law firms use document assembly tools to automatically fill in document variables in templates when creating contracts and letters. In many cases, fields added to the document can have hidden metadata associated with them. Cloud collaboration - firms that need to upload documents to a collaborative workspace in the cloud need to make sure documents are cleansed of metadata before doing so. “Must-have” technology Metadata leaks are preventable. Metadata cleaning software removes metadata from documents, eliminating the risk of unintentional information leakage. Law firms big, small and solo need to look at metadata management software as a businesscritical application in the same way they do a word processing application. It’s a “must-have” technology. Otherwise, you are depending on busy lawyers working to deadlines, or working out of the office to remember to turn off comments and track changes before sending out the document.

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Dean Sappey, Co-founder and President, DocsCorp. August 2016


Post-Brexit Funding

Legal apprenticeships: a successful innovation

Given the uncertainty surrounding the financial sector after the decision to leave the EU, should law firms be concerned with new or existing funding arrangements?

What is the proof of the value of legal apprenticeships in bringing new talent into the legal sector now that the first cohort is coming to completion?

he UK’s decision to leave the European Union has unsurprisingly sent shockwaves through the financial sector. With funding arrangements still a necessity for most businesses, the legal sector is no different. Should you be concerned about your current arrangements? This depends on the line of funding you have chosen.

lthough statistics do not tell the whole story, they are very illuminating and demonstrate that legal apprenticeships have been a successful innovation. The national completion rate for apprenticeships is 69%. Faced with that statistic and legal apprenticeships being based on tough CILEx professional assessments, we at CLS knew that achieving high completion rates for the newly launched programme would be a challenge.


Debt is seen as a bad word, but is not always a bad thing; used correctly it is the most effective way to grow a business. Most law firms will have some form of finance, most commonly a bank facility, in the form of an overdraft or bank loan. These work well until the small print comes into force. Banks continue to be nervous of the legal sector as it continues to be seen as ‘higher risk’. Banks like stability and certainty. The recent “Brexit” vote has provided anything but this. The domino effect means the bank may review their capital position and reduce their exposure to clients, creating stability across a much broader platform. One method of reducing exposure is to reduce overdraft limits or convert them into repayment loans. We must also remember a bank overdraft may be repayable on demand. This caveat allows the bank to reduce exposure and de-risk their own balance sheet. For the law firm this means a reduction in working capital reducing the ability to grow the business. The good news is, it’s not all doom and gloom. These scenarios do occur, however knowledge and awareness of such issues puts the law firm in a stronger position. Going forwards, what new methods can be used to avoid such uncertain situations? We must remember not all borrowing is good; short-term VAT loans and other similar methods on a rolling basis may lead to a cycle of reliance. The key is specific funding for a specific purpose. Bespoke funding methods ease cash flow positions and allow law firms to maintain growth in the years to come. VFS legal funding are one of the country’s leading specialist providers of finance into the legal sector. VFS have developed facilities to align the law firm’s cash flow directly to each case, being tailored specifically to assist in these challenging times. With numerous law firms already benefitting from such a unique structure, this is viewed as a testament to its effectiveness. Robert Bishop, Sales Director, VFS Legal Funding.


Working hard with our partner employers we’ve managed to meet that challenge and even improve on national achievement rates. For example, the completion rate for our first cohort of legal apprentices is an impressive 83%. Of those who have completed, 86% of them have been timely completers (i.e. completing within three months of the two year set end date of the programme). The national average for timely completions is 55%. Perhaps most pertinent to employers is the proportion of apprentice completers who are still in the legal services industry: 91% are still working in the legal profession and are being sponsored on further legal qualifications by their employers. While the statistics bear out the argument that legal apprenticeships have been a successful innovation, anecdotal evidence provides an interesting qualitative perspective. Fiona Wheeler, of the Burnside Partnership says: “The apprenticeship programme has exceeded our expectations in every way…My two concerns in advance were that as a very small firm covering only one area of law, it would be difficult to find work to cover the full range of competencies, and that overseeing the apprenticeship would be very time consuming. CILEx Law School have delivered training in a way which avoided both these problems. I have been surprised how well the competencies fit with the work which we would do anyway, and by how easy everything is from an employer’s point of view.” In a similar vein, Alison Neil, L&D Manager at the BBC’s legal department commented, “We are preparing to take on our second intake of apprentices and to expand the scheme. We now also offer a paralegal route through CILEx which has allowed us to support more existing staff in developing their careers.” Perhaps the final word should go to an apprentice. Jack Bidgood, a legal apprentice at Bond Dickinson: “This apprenticeship scheme has enabled me to develop personally and professionally. Through the combination of self-study and on the job experience, I have the knowledge and opportunity to put what I am learning into practice. The firm provides a great deal of support and are extremely flexible in their approach to facilitating our requirements.” Noel Inge, Managing Director, CILEx Law School.

August 2016

Modern Law 37

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The ethics of AI The president of the Supreme Court last week called for a debate on the ethical implications of artificial intelligence (AI) and for “greater prominence” for ethics in legal training. Do you agree that AI could have ethical implications? es, as AI grows in popularity within the legal sector it will undoubtedly begin to pose ethical questions. However, the reach of those implications depends largely on how comfortable customers are with the notion of dealing with AI for legal matters.


As far back as 1976 renowned computer scientist Joseph Weizenbaum argued that AI technology should not be used to replace people in positions that require respect and care, of which a legal professional must be considered to be one. He explained that we require authentic feelings from people in such positions and if machines replace them, we will find ourselves alienated, devalued and frustrated. More recently, Richard and Daniel Susskind have predicted that the legal profession will change more over the next twenty years than over the last two centuries and that professional work, even that which requires human qualities such as expertise, creativity and interpersonal skills will be capable of being done by AI. It is the conflict arising between these two points of view that creates ethical questions. On one hand we have the prediction that AI will replace lawyers, and on the other that AI should not, as human customers will not stand for it. While a great deal of the menial work that comes along with lawyering (research and analysis, more research and analysis) is subject to the relentless onslaught of automation, the core tenets of lawyering, such as advocacy and critical thought, are more nuanced and therefore more difficult to computerise. Ultimately, like all industries, AI has the opportunity to have a transformative effect on the practice of law—from data analysis, to document creation, to tools and solutions that simplify the day-to-day management of a law firm and free lawyers up to focus on the critical thought, analysis, and advocacy that make them irreplaceable. Predictions of imminent and widespread displacement of lawyers are probably premature. Technology will more than likely replace employees that support lawyers, not lawyers themselves, minimising the ethical implications. Ross Weldon, EMEA Marketing Specialist, Clio.

Uncovering the Sinkhole Problem Sarika Sangar reports on a recently highlighted source of property damage, that is often overlooked, particularly because it is underground. ur settlement history in this country is largely founded on mining and quarrying: where there was something of value, a settlement grew up. This is obvious in some areas of the country: Yorkshire (coal) and Cornwall (copper and tin), for example. But, with the recent headline grabbing sinkholes, other types of mineral extraction have, literally, been uncovered. The Country is peppered with mineral extraction sites and they are very often where you would least expect. Especially when it comes to chalk.


Mine shafts, shallow underground workings and surface quarries litter our landscape and date back to the Romans and the Industrial Revolution. Frequently, these are lost and forgotten beneath agricultural land, which was later built upon. A rapidly increasing population and industrial growth led to the spread of our cities, while little attention was paid to what was underground. Most mining searches only cover coal, tin, limestone, China clay and Cheshire brine. But what about chalk? Chalk mining affects over 2 million properties in the UK. If a hazard, with the exception of coal, affects a property, the homeowner is liable for everything. The financial risk could be huge – the damage caused by the St Albans sinkhole cost £600,000 to repair and five of the houses affected are still uninhabitable! There has been a 250% per year increase in the number of sinkholes opening up since 2008. Chalk extraction is most often the cause. Areas at risk are those underlain by chalk such as the North Downs, Norwich, Hatfield, Reading, Greenwich, Dartford, Hemel Hempstead, and in fact large parts of Kent, the Home Counties, Thames Valley and Greater London. Sinkholes are typically features that occur as a result of the natural subterranean dissolution of rocks prone to water erosion, such as limestone or chalk. These rocks are particularly susceptible to dissolving in acidic water, like accumulated rainfall. The St Albans sinkhole of October 2015, in particular, brought this largely unrecognised ground stability hazard into focus. Little evidence remains of our once rich mineral extraction heritage hidden beneath growing property developments. This is a very real threat and one that probably requires more attention than it has previously been given. Sarika Sangar, Marketing Executive, Conveyancing Data Services.

August 2016

Modern Law 39


How can we avoid data breaches, and the huge fines that are involved? The Information Commissioner’s Office (ICO) have launched an investigation after clients’ confidential medical records were found in a skip outside the office of a former law firm in Merseyside. Are the penalties for data breaches stringent enough, and how can law firms protect themselves from incurring this type of data breach? ost of us will have experienced the pain of moving offices during our professional career. While you brace for shortterm disruption, you don’t usually expect to hear reports that a pile of medical records ended up in a skip outside the old office.


Coupling this investigation with the recent decision by the ICO to enforce mandatory data protection training of all employees of West Dunbartonshire Council in response to a breach, the regulator is increasing its enforcement of data breaches. The current fine that the ICO has the power to impose is £500,000, however the General Data Protection Regulations (GDPR) - unaffected by Brexit - will come into force in March 2018; giving the ICO the power to fine up to 4% of a firm’s turnover. TalkTalk received the maximum penalty from the ICO in 2015; if it had been breached under the new regulatory regime that fine would have been £35m. There are controls that a firm can put in place, through the Cyber Essentials scheme, that is purported to mitigate against 80% of the cyber threats existing right now. Internal training, policies and procedures need to be strongly enforced and positively encouraged within a firm, and the culture of security must start from the top down. One of the important factors to consider, however, is that in this individual case, it seems it was the workmen carrying out the move that placed the documents in the skip, so it is important not only to instil a culture of security awareness within the firm, but make it a requirement of all of the suppliers you use, however innocuous or unlikely a breach may seem. Penalties may act as a jolt of panic to other firms not to follow suit but what the ICO should really focus on is promoting threat mitigation strategies, encouraging firms to protect themselves before an attack, not merely counting the cost afterwards. The answer is not higher penalties but greater awareness, improved access to training and buy-in from senior partners to promote a cultural shift, firm by firm, towards a cyber secure environment. We must remember that the ICO decisions are as much to ensure others do not follow suit, as much as it is to punish those with the breach. After all, the ICO is acting – as we all do- in the interest of the public. If you don’t want to wait until the breach and ensure you have a threat mitigation strategy in place, call our helpline on 0333 323 3981 or email

Who is afraid of continuing competence? Over the past year we have conducted scores of interviews with law firms, solicitors and leading SRA officials on the topic of continuing competence. Below is a compilation of the most frequently asked questions. 6 hours worked fine for 30 years. Why the change? Under the 16-hour approach there was never a guarantee that CPD was resulting in more competent solicitors. One of the roles of the SRA is to protect the interests of the public and ensure access to skilled legal work. This is the purpose of Principle 5 of the Handbook: “you must provide a proper standard of service to your clients.” The new approach focuses on achieving that goal, not micro-managing solicitors’ time.


What records do solicitors have to keep? There is an expectation that firms will keep copies of learning reflections and training records. In the event that a solicitor’s competence is questioned, the SRA might request a copy of those records. There will not be a requirement that the records be kept for 6 years, as was required in the past. The requirement will be for records related to current issues of competence. Some firms are planning to continue requiring 16 hours, or 4 hours from approved providers as a means of monitoring compliance. What is the SRA’s view? Is this an effective means of monitoring? The SRA is aware of this approach and they have even heard of firms requiring 32 hours! Ultimately from the SRA’s perspective any number of hours is arbitrary. They will be regulating competence not a number of hours. Despite this fact, this might be a sensible way for a firm to measure competence on a macro level. Under the new approach, will Solicitors likely train for more or less than 16 hours? There is no rule for whether there will be more or less learning under the new system. The amount of learning undertaken depends on a range of factors including seniority and area of practice. From VinciWorks conversations with firms another factor will be the firm’s own attitude to learning. For most of the firms we spoke to there is a common view that erring on the side of doing more learning can do no harm. How flexible are the new types of learning? Completely flexible. Any learning is valid if it meets an identified need. From speaking with early adopter firms, VinciWorks has identified this as an area that solicitors and their firms are likely to struggle with in the early years of competency. While the SRA are keen to point out that watching YouTube or listening to podcasts are adequate forms of learning, the firms we have spoken to appear to be sticking with tradition for now with classroom and online modular learning being the favoured forums. Yehuda Solomont is the Director of Marketing at VinciWorks. VinciWorks has released a free system for compliance with the SRA’s new approach to continuing competence. To learn more visit www.vinciworks. com/competence

Stephen Robinson, Managing Director, Xyone Cyber Security.

40 Modern Law

August 2016


Beware of breaching client confidentially in M&A due diligence

Law firms are showing an alarming level of ignorance by not keeping client information confidential when engaged in M&A activity. uidance1 issued by the Solicitors Regulation Authority (SRA) in January 2015 recommended that firms should take sufficient steps during M&A negotiations to protect confidential client information and (where appropriate), seek client consent before any disclosures are made. They go on to say that “firms must take steps to minimise the risk of third parties having access to client information.”


Notwithstanding this it is clear that many are unaware of the SRA guidance while others have chosen to ignore it. Those who engage in these unethical practices also flout the obligations placed on firms as data holders by the Data Protection Act 1998. Further, in April 2016, the European Parliament approved a new regime for data protection, which seeks to hold data holders to greater account and give citizens greater control over their data. Many law firms, and those advising them, are operating under the misapprehension that it is necessary to allow access to client files in order to complete deals, and this just isn’t true. I regularly hear examples of this being flouted and most people tell me they had no idea – which is not an answer the SRA or Information Commissioner’s Office (ICO) would appreciate or accept. It is my view that firms are approaching due diligence in the wrong way. They should be focused on the firm’s financial situation and records, talking to key individuals and reviewing operations, technical ability, process and governance, rather than delving into confidential client files. When we advise on technical and operational due diligence for our clients in M&A, as a regulated law firm our approach ensures that all work undertaken complies with SRA and ICO guidance to protect our law firm clients and mutual professional advisors from regulatory and data protection breaches. We review significant disclosure of pertinent management information that impacts on asset value but with client details redacted. Working this way is an approach that puts the focus on operational and technical issues as a whole rather than reviewing individual client files - which is hit and miss, time consuming, costly, and breaches SRA and ICO guidelines. 1

Lesley Graves, Managing Director, Citadel Law.

Can the new CPD approach benefit conveyancers? ovember heralds the arrival of the SRA CPD changes. On the face of it, this merely means that the current pointsbased system is replaced by a continuing competence approach. But, for both CPD providers and solicitors alike, what does this mean for learning? As a provider of property information, the Geodesys team has been considering how we, as search providers, should rise to the challenge of keeping conveyancers as up-to-date as possible, enabling them to reduce the risk of any potential malpractice suits.


What do the SRA say? The SRA practice note states that the new system helps solicitors “provide a proper standard of service” by meeting the competences in the Competence Statement. This should be achieved by reflecting on learning needs, setting learning goals, recording how these have been met and making an annual declaration to the SRA. What do conveyancers say? We’ve noted that opinion suggests the current points-based approach makes it easier to ensure that you’re compliant. There is, however, growing recognition that the new system will help to ensure that employees actually learn something from training rather than just collecting points. This is where we think the role of the CPD provider is key in helping conveyancers to define and meet their learning goals. For Geodesys, this means providing CPD activities to fill any knowledge gaps that may represent risk to your practice. Defining learning goals for conveyancers The variety of property reports is ever-increasing and, at our own CPD events, we meet conveyancers who are struggling to keep up to date with the different types of information and data available. At our events we explain which reports are suitable for which transactions and why. Factors to consider include changing legislation, client attitude to risk (i.e. a desktop report or more thorough consultant report), price sensitivity of clients, changing planning policies and the value/limitations of certain datasets. Example learning outcomes include: • Ensure compliancy with Law Society guidance on contaminated land • Develop knowledge of the most common environmental issues affecting property transactions • Understand the increasing number of ways in which fraud can occur • Get the best picture of how current and future planning applications can affect a property. By clearly understanding what conveyancers can expect to learn from CPD activities, we believe that the searches industry, and providers such as Geodesys, will be much better placed to support you in your learning goals. Susan Fairbrass, Marketing Manager, Geodesys.

August 2016

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The solution to your cyber security worries? The Cloud ou can’t pick up a newspaper these days without hearing about a data breach somewhere. Indeed, as technology evolves and becomes more fundamental to the way we do business, the opportunities and incentives for cyber criminals increase. As a lawyer, you are trusted with sensitive information about your client. Couple that with the fact that the US National Cyber Security Alliance found that 60% of SMEs are unable to sustain their business within six months of a serious cyber-attack and ensuring your firm stays protected should really be of utmost importance. However, lawyers are often late adopters of new technology and the cloud has been slow to penetrate the legal profession.


So what can be done? How can your firm take control of its cyber security? Firstly, it is important to ask yourself some critical questions. Can your staff email sensitive data to themselves at home (via a private email account)? Can they send sensitive information to the wrong person by mistake? Can they store data on portable hard-drives or thumb drives? How often are passwords changed and are they hard to guess? When was the last time you checked that ex-employees don’t have usable logins for your network? If those questions fill you with discomfort, you’re not alone. IBM’s “2014 Cyber Security Intelligence Index” found that 95 percent of all security incidents involve human error, and many of the biggest errors come from senior staff with the broadest access permissions; even a firm’s partners.

For most people though, IT is a headache. A busy management team simply does not have time to make sure their servers are patched and updated (at least monthly), and cannot stand over each staff member to ensure they are not emailing sensitive information to the wrong person by mistake (or worse – deliberately). So is the solution to simply ignore it and hope for the best? What if I told you that you could completely rely on your IT without having “crossed fingers” as a security strategy? The solution is to partner with a cloud IT company and puts your cyber security in their hands. A quality cloud IT company will have data security as their core business activity. They will patch their servers regularly, constantly monitor all points of access against threats and keep track of your data and users to ensure that the right people have access to the right information. Of course, there is no way to be completely impervious to intruders. The lesson from the Hatton Garden robbery is that a determined intruder is difficult to keep out. However, it is possible to guard against attacks. When your IT is delivered and managed by a cloud provider they will ensure that it is as secure as possible, leaving you free to get on with your work. Tom Dodd, UK Marketing Team, entrustIT. entrustIT is an ISO27001 security certified company and a finalist in the BCS cloud innovation provider of the year category. To find out how entrustIT are providing legal firms with industry leading security, visit or call 0330-002-0045.

Developing the networking skills of the legal profession

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09/03/2016 09:28


New approaches to financing insolvency litigation Maurice Power, Managing Director at Ferguson Litigation Funding examines how, with the end of the Jackson carve-out, insolvency practitioners have more reason than ever before to explore alternative financing solutions n 1st April 2016, the exemption for insolvency litigation from the changes brought about by the Legal Aid, Sentencing and Punishment of Offenders (LASPO) Act 2012, was withdrawn. Prior to this, an Insolvency Practitioner (IP) could pursue action against a “rogue” director or debtor, on behalf of the creditors of an insolvent business/individual, by instructing a solicitor on a Conditional Fee Agreement (CFA), and protect themselves against adverse costs by taking out After The Event (ATE) insurance. This could be done safely in the knowledge that should they win the case, the defendant would then pick up the cost of the ATE and pay the solicitors “success fee” within the CFA - and were they to lose, the ATE insurance would pay all the defendants costs.


Where there is no, or insubstantial, capital in the insolvent estate to fund litigation, IPs are faced with a number of options. One option is the increasingly common route of sourcing a third party litigation funder.

Legal Services: removing barriers to competition – five things you should know. Matthew Claughton examines the Government’s proposals in its consultation “Legal Services: removing the barriers to competition” 0th November 2015 saw the publication of “A Better Deal: boosting competition to bring down bills for families and firms”, in which the Government emphasises the importance of well functioning markets, growth, innovation, efficiency and competition.


The July 2016 consultation “Legal Services: removing barriers to competition” sets out the Governments proposals to remove the remaining barriers to entry for Alternative Business Structures (ABSs), i.e. those partly owed or wholly owned or controlled by non lawyers. Under the existing provisions, an ABS faces a higher regulatory burden than traditional law firm models. The Government’s view is that by bringing regulation into line with partnerships, LLP’s and limited companies it will open up the legal sector to “more innovative businesses as well as creating greater competition and affordable advice for customers.” The five key proposals are below:

Third party funding for insolvency litigation is nothing new but, with the availability of CFAs and ATE pre 1st April 2016, many IPs did not initially see the benefit of using a funder if the solicitor and ATE insurer were content with the likelihood of success of the claim. Post 1st April 2016, with the cost of CFAs and ATE making many claims cost prohibited, and with the regulatory bodies encouraging the use of litigation funding, third party funders have the challenge of: • Changing the behaviour of IPs when confronted with a viable claim but with no funds to pursue it • Presenting a funding option that provides for the legal fees and eliminates the risks associated with losing an action • Provides a cost effective solution to pursuing lower value claims. With the on-going evolution of third party funding in insolvency cases IPs can now source funding which will provide many, or all, of the following: • Funding of legal fees, expert witnesses and solicitor’s success fees • Indemnity against adverse costs • Security for costs • A panel of expert solicitors • Options – to include full or partial funding, claim purchase, etc • Independent opinion.

1. Removal of the requirement to provide services consisting of or including reserved legal activities from a “practising address” as is currently required. 2. To allow Licensing Authorities to make their own rules around ownership of an ABS. The proposals would give greater discretion in deciding the necessary checks for licensing whilst imposing a statutory obligation upon the Legal Services Board to provide guidance. 3. Removal of the requirement for an ABS to set out how their business would improve access to justice - there being no equivalent requirement for non ABS firms or individuals. 4. Amend the requirement for the Head of Legal Practice and the Head of Finance and Administration of an ABS so that they are only required to report a “material” failure to comply with licencing rules. 5. Finally, the Government seeks suggestions as to potential areas for simplification and further reduction in the regulatory burdens on regulated legal service providers. Matthew Claughton, Managing Director, Olliers Solicitors.

Rather than having a limiting effect on insolvency litigation, the removal of the exemption from the LASPO changes has created a market where the litigation funders are adapting their service to provide IPs with the means to maximise returns to creditors. The solution is out there and the onus is now on IPs to source the correct funding option for each case. Maurice Power, Managing Director, Ferguson Litigation Funding.

August 2016

Modern Law 43






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Are you ready to answer client questions about security?

Osbourne Changes - PI Case Funding NO interest & NO Charges

rofessional firms are now being asked more often about their security arrangements and how they protect client data from Cyber attacks and data loss generally. In the midst of the high profile Cyber attacks and data loss, business clients as well as consumers are starting to question their professional advisors about their safe-guarding arrangements. The following questions are an example of those being asked – can you answer these now?

ollowing the proposed sweeping Osborne reforms many of us in the industry sat and pondered what route to take next? The future needed to be planned and provisions made to cope with these sweeping changes.

1. Do you conform to any established security standards? There are a range of security standards including Cyber Essentials, IASME and ISO27001. Achieving a security standard will help to demonstrate that the business has considered and takes data security seriously. The choice of standard will depend upon the risks perceived by the business, but having achieved the first level of Cyber Essentials is a good starting point and in most cases for a professional firm an ‘essential’ first step.

The first challenge was that a PI Law Firm needed to increase their volume of cases, but case acquisition funding needed capital to acquire the cases. So BMS arranged a Funding line with the City and negotiated with the major UK MRO’s and ATE providers to fund the interest and costs, thereby eliminating the cost of funding so there was NO cost to the Law Firm.


2. Do you have an Information Security Policy? A policy of this nature demonstrates an awareness of the need to address security within the business and should be made available to stakeholders as well as employees. 3. Where is our data stored? On the face of it a straight forward question but all too often senior management cannot answer this question without asking more questions internally first. 4. Who has access to our data? In many instances, access to key data will be through applications where users are allocated access for specific purposes. However, some businesses use generic login accounts for such applications or do not have password requirements. 5. Has the system been tested against Cyber attacks? This is a very generalised question as the variations in Cyber attacks is so wide and constantly being developed…sadly. Undertaking a Vulnerability or Penetration test can provide useful information about the systems strengths and weaknesses. Action required? If you are not comfortable with your ability to answer the above questions or the issues have not yet been dealt with by your business, it is strongly recommended that steps are taken to develop the necessary policies and answers before your clients and prospective clients pose the questions. The first step would be to consider achieving the Cyber Essentials security standard – for more information https://www.


At BMS Funding we studied the proposed legislation changes and came up with a solution that every claimant PI Firm would be able to use.

It then became apparent that Personal Injury Firms needed to operate a more efficient, streamlined claims handling process whilst at the same time improving the settlement times. BMS recruited the top IT support who understood systems, such as Pro Claim, to automate the Law Firms’ systems, thereby decreasing the operating costs, at NO cost to the Law Firm BMS then turned their attention to the operating costs within a PI Law Firm and realized the majority of Firms were replacing experienced PI solicitors with data processing staff. The indirect adverse cost of this was that clients were not always receiving the correct compensation. So BMS negotiated with the top two UK Barristers Chambers to provide written advice on Quantum for every claim, thereby ensuring the correct compensation was obtained for the client. This in turn ensured the success fee for the law Firm was correct at NO cost to the Law Firm or the client. BMS will arrange to fund the case acquisition costs on PI Portal cases at NO cost to the Firm. BMS will arrange to automate Proclaim system at NO cost. BMS will arrange Triage Rehabilitation and even MedCo portal fees where the Law Firm is not at financial risk so again NO adverse costs. BMS will arrange written advice on Quantum on every case at NO cost to the Firm or the client BMS Funding is now the UK’s largest PI Funder in the UK and does not make ANY charge to the Law Firms. If you find the above of interest, please contact our Sales Director Anthony Allenza Anthony Allenza, Sales Director, BMS Funding.

Paul Rolison ACA, Director, Cyber Strategies Ltd.

August 2016

Modern Law 45

Eclipse Proclaim Modern Law Conveyancing Awards 2016 The first Eclipse Proclaim Modern Law Conveyancing Awards took place on 14th July at the Rum Warehouse, Liverpool. Charlotte Parkinson, Modern Law, takes a look at the winners and summarises the inaugural event. onveyancers from across the UK flocked to the Rum Warehouse, which was created as part of the redevelopment of the historic Stanley Dock complex, for the first annual Eclipse Proclaim Modern Law Conveyancing Awards. Following in the footsteps of the now well-established Eclipse Proclaim Modern Law Awards, the new event was created by Modern Law to celebrate the talents and successes of practitioners and businesses specifically operating in the conveyancing market. Guests arrived at the Rum Warehouse and were greeted with a sparkling champagne reception and an exact replica of the staircase from the ill-fated RMS Titanic, the ship which was originally built in Belfast, but registered in Liverpool. Guests entered the presentation room, which had been filled with giant floating balloons and began to take their seats to enjoy a sumptuous three-course dinner and enjoy wine, which was kindly sponsored by Stewart Title Ltd. As guests waited for the food to be served, they were entertained by a professional magician and pickpocket, who amazed tables by removing guests’ ties and watches. The bar, which was adorned by a spectacular ice sculpture etched with logo of the sponsors of the Champagne Reception and Table Plan, The Solicitor Finder – the legal comparison tool recently launched by Fitzalan Partners.


Recognising excellence

The host for this year’s event, Scottish comedian Fred MacAulay took to the stage after dinner and entertained guests with his hilarious set, which was followed by the awards presentation. The winners for this year were selected from a cross-industry panel of experts, which was Chaired by Eddie Goldsmith, Partner at Goldsmith Williams and Chairman of the Conveyancing Association, and included: Jonathan Smithers, President of the Law Society & Partner, Cooper Burnett Solicitors; Simon Law, Chairman, Society of Licensed Conveyancers (SLC) & Head of Legal Practice, DC Law; Sheila Kumar, Chief Executive, Council for Licensed Conveyancers; Alasdair Lewis, Director of Legal Services, The Land Registry; Heather Cameron, Marketing & Communications Manager (former Editor), Todays Conveyancer; Rob Hailstone, Founder, Bold Legal Group; Andrew Stenning, Managing Director, Searches UK and Ben Harris, Marketing Director, TM Group. The first awards of the evening aimed to recognise conveyancing firms from across the UK. Conveyancing Firm of the Year – North of England was picked up by Sintons LLP, with Midlands taken home by the recently merged Shakespeare Martineau. The awards for Conveyancing Firm of the Year – South of England and Wales were scooped by Smart Legal and Howells Solicitors respectively. InfoTrack, the conveyancing searching platform launched just over a year ago, scored a double win, picking up both Search Provider of the Year and Service Provider of the Year.

Cultivating talent

There is no shortage of innovation and excellence in the conveyancing sector and the coveted award for Innovation of the

46 Modern Law

I would like to praise our Leasehold Specialists, Amelia Hayes and Callie Tuplin for all the work they do within the department; their expertise, passion and dedication has shone through and resulted in National recognition Sarah Mitchell, Managing Partner, Jefferies Solicitors – Property Team of the Year Year was presented to Lawyer Checker, which was established to provide risk management solutions to the conveyancing industry, and was recognised by the judges for its initiatives to prevent fraud in the industry, in particular, for their Account & Entity Screen due diligence product. Cultivating and rewarding talent as the conveyancing market enjoys a period of buoyancy has never been more important, and two awards sought to recognise this. Rising Star of the Year was presented to Laura Matthews from Countrywide Conveyancing Services, and Outstanding Commitment to Training was awarded to My Home Move. Maintaining existing business and developing new business has been at the forefront of many firms’ minds, and Business Development Professional of the Year sought to recognise an exemplary performance in business development (increasing business growth and revenue) over the last year. Scoring the firm’s second win of the evening, the award was presented to David Pritchard from Sintons LLP. Other awards included the Client Care Award and Best Use of Technology, which were picked up by AVRillo Solicitors, and Pali Ltd respectively.

Rewarding the exceptional

The award for Property Team of the Year went to Jefferies Solicitors LLP and the firm’s Managing Partner, Sarah Mitchell, said of the win, “This is a fantastic achievement for Jefferies and in particular the Property Department, who work so well as a team. I would like to praise our Leasehold Specialists, Amelia Hayes and Callie Tuplin for all the work they do within the department; their expertise, passion and dedication has shone through and resulted in National recognition.” The final award that was open to general nominations was presented to the Conveyancer of the Year, Janine Edwards of Watkins & Gunn Solicitors. Edwards said of the win, “I am thrilled to have won Conveyancer of the Year. It has topped off what has been a great year for my department and my firm as a whole. Onwards and upwards now. We want to be the best we can be and this

August 2016


The evening recognised and celebrated talent and success in the conveyancing industry

Cover Cats brought everyone onto the dancefloor to end the night

award proves our goals are realistic and achievable. I would also like to mention that the evening was fantastic and Modern Law Magazine should be extremely proud to have hosted the same. The winners of the two most prestigious awards of the evening were selected exclusively by the judging panel. The award for Outstanding Achievement went to Justin Parkinson from The Lender Exchange, a secure portal that provides law firms with the mechanism to exchange information with lenders in conjunction with the management of their conveyancing panels. The final award of the evening went to Lawyer Checker’s Chris Harris, for his commitment to fighting fraud in the conveyancing industry. Following the awards presentation, guests enjoyed the entertainment for the evening, which was sponsored by the Conveyancing Association, and included a photo-booth and band the Cover Cats - who made sure everyone was up on the dance floor. A Silent Auction organised by Impulse Decisions Ltd, and sponsored by Index Franchising Ltd, ran throughout the evening and raised a total of £1,635, which was divided between two charities, the British Heart Foundation and the Barth Syndrome Trust.

Confetti cannons helped set the night off with a bang

The evening’s host, comedian Fred MacAulay, entertained the attendees with his opening set

Modern Law would like to congratulate all the winners, and thank the sponsors of the event. For information about how to get involved with next year’s awards, please visit

I am thrilled to have won Conveyancer of the Year. It has topped off what has been a great year for my department and my firm as a whole Janine Edwards, Watkins & Gunn Solicitors – Conveyancer of the Year August 2016

Attendees packed the Rum Warehouse for a night of celebration

Modern Law 47


Winners Conveyancing Firm of the Year – North of England

Sponsored by SearchFlow HIGHLY COMMENDED - Birchall Blackburn Law & My Home Move WINNER - Sintons LLP

Conveyancing Firm of the Year – Midlands

Sponsored by Geodesys HIGHLY COMMENDED - John M Lewis & Co Ltd & My Home Move WINNER - Shakespeare Martineau

Conveyancing Firm of the Year –South of England Sponsored by STL Group PLC HIGHLY COMMENDED - AVRillo Solicitors WINNER - Smart Legal

Service Provider of the Year Sponsored by Groundsure HIGHLY COMMENDED - PLS Solicitors WINNER - InfoTrack

Client Care Award

Sponsored by Terrafirma Mine Searches Ltd HIGHLY COMMENDED - Mullis & Peake LLP WINNER - AVRillo Solicitors

Best Use of Technology

Sponsored by Redbrick Solutions HIGHLY COMMENDED - Countrywide Conveyancing Services WINNER - Pali Ltd – Property And Land Information

Outstanding Commitment to Training Sponsored by One Search Direct HIGHLY COMMENDED - AVRillo WINNER - My Home Move

Conveyancing Firm of the Year – Wales Sponsored by Conveyancing Data Services HIGHLY COMMENDED - Watkins & Gunn Solicitors WINNER - Howells Legal Ltd t/a Howells Solicitors

Property Team of the Year

Sponsored by Infotrack HIGHLY COMMENDED - Coffin Mew LLP WINNER - Jefferies Essex LLP

Search Provider of the Year Sponsored by COPSO HIGHLY COMMENDED - STL Group Ltd WINNER - InfoTrack

Conveyancer of the Year

Sponsored by PSG HIGHLY COMMENDED - Stephensons Solicitors LLP WINNER - Janine Edwards - Watkins & Gunn Solicitors

Innovation of the Year

Sponsored by TM Group Uk Ltd HIGHLY COMMENDED - Beaumont Legal WINNER - Lawyer Checker

Outstanding Achievement of the Year Sponsored by Inside Conveyancing WINNER - Justin Parkinson - Decision First

Rising Star of the Year

Sponsored by Lawyer Checker Ltd HIGHLY COMMENDED - Zoe Martin-McGrath - Total Conveyancing Services WINNER - Laura Matthews - Countrywide Conveyancing Services

Lifetime Achievement Award

Sponsored by Eclipse Proclaim WINNER - Chris Harris - Lawyer Checker

Business Development Professional of the Year Sponsored by Clayton Legal HIGHLY COMMENDED - Jo Milne - Pali Ltd, Property And Land Information WINNER - David Pritchard - Sintons LLP


48 Modern Law

August 2016


Eddie Goldsmith chaired the expert judging panel

AVRillo Solicitors scooped the Client Care Award

Pali Ltd took home the Best Use of Technology award

A silent auction raised over £1,500 for charities

Smart Legal were the Conveyancing Firm of the Year –South of England

Sintons LLP were named Conveyancing Firm of the Year – North of England

Coming soon...

MARCH 2017 ContaCt Sponsorship enquiries Martin Smith | Event enquiries Ellie Campbell | t: 01765 600909 Modern Law Conveyancing Conference Strap Ad.indd 1

12/07/2016 11:02


REGIONAL FOCUS: Kent Interview with... Vanda James Charlotte Parkinson, Modern Law, spoke to Vanda James, President of the Kent Law Society and Partner at Cripps LLP, about her hopes for her tenure and the role of the legal profession in the future.


What are the main challenges the Kent Law Society faces at the moment and why?

Like many local law societies, I think one of the biggest challenges for Kent is retaining current members and attracting new members. Over the last few years, we have been able to keep our membership at a steady total - somewhere between 450 and 500. It is inevitable that existing members leave for various reasons and we therefore have to attract new members. Doing so is challenging, especially because as the profession changes we are having to demonstrate value for money. Although Kent does not currently have corporate membership and we rely on individuals to renew, I suspect the reality is they, in turn, hope their firms will pay the subscription. As purse strings are tightened, individuals have to demonstrate the benefit(s) of being a member. At Kent, one of the benefits is that we offer substantial discounts on our training courses, which effectively pays for the membership, but with the changes to education and CPD requirements we are having to be innovative with course topics to include more ‘soft skills’ training, to appeal to a much broader audience. We also represent a large geographical area and a broad range of firms, from the larger corporate firms to sole practitioners. It is important that we try to represent the interests of all firms and solicitors, and that we remain relevant to them, particularly as the profession continues to evolve.


What are your core aims during your tenure as President of the Kent Law Society?

As the role is for a 12 month period only, it is important for there to be continuity between Presidents to ensure the continued progress of Kent Law Society. This year, as an initiative from the outgoing President, Victoria Ansell, we have decided to set up a group comprising of the Immediate Past President, the President, Vice President and Deputy Vice President who will meet four times a year to ensure objectives are achieved and initiatives are shared. We have our 200th anniversary coming up in 2018 so part of those discussions include how we will celebrate and how we want Kent Law Society to look in the future. We have established excellent links with our local MPs which we want to maintain, as we can discuss with them how changes to the profession affect their constituents; we have strong ties to the local judiciary and with Kent Police, and we strive to meet regularly with them and others who operate within the legal sector, in whatever form. There is a major commitment with all of these things, but we cannot be a voice for our members if we do not keep these channels of communication open. Our junior lawyers are the future of the profession so one of my aims is to continue supporting them and to have several events during the year to encourage new members.

50 Modern Law

I fear the public’s view of the profession has been diluted and there is no longer the respect there once was August 2016


It is important that we try to represent the interests of all firms and solicitors, and that we remain relevant to them, particularly as the profession continues to evolve


How have the needs of members changed over the last 3 years?

We have seen a huge increase in the amount of traffic to our website and we have had to ensure it is kept up to date, which is challenging in itself as it is one of our members, Jon Pitt, who takes care of this for us without any remuneration. It is something he is excellent at, but as a busy professional man himself, it is not always easy. At Kent we have also, from time to time, carried out membership surveys to find out what our members want. It seems to vary and there is sometimes apathy, and also contradictions. For example, in one recent survey, members indicated they would like more networking events. As the County covers a wide geographical area, we have tried to organise networking events in different locations to try and meet the needs of all members, but there has been limited attendance in some areas. The turnout for these events has also decreased in recent years as people’s workloads have once again increased. Previously, one of the big advantages of membership of Kent was the discounted training we could offer, but this is now less relevant as the changes to CPD requirements are coming in to play. Having said that, a number of firms we have spoken to have confirmed they have no current plans to change the way they approach training.


How do you and the team at the Kent Law Society ensure the society maintains its relevance to the profession?

With the increased use of email, we are seeing a lot more information from the Law Society and we are having to find ways of getting that through to our members without overloading them. It is not unusual to have 3 or 4 news items, consultation documents, and updates in any one week. These give a flavour for what is happening in Chancery Lane but we cannot monitor whether our members actually read and act on the information. The volume has increased dramatically over the last 2/3 years and does create a challenge to us as a local law society in terms of how we manage expectations. Social media, including Twitter, is a wonderful thing but not all members want to engage with the modern media. Our relevance is not simply tied to the dissemination of information from Chancery Lane. We want our members to engage actively with us and to contribute to our efforts. In our efforts to engage with so many organisations locally (MPs, Kent Police, judiciary, etc. as mentioned above) we want Kent Law Society to be recognised as an important voice in relation to any issues facing the profession. Our aim is to get to the point where we are an organisation that should be involved in all legal discussions, but that will only happen if practitioners in Kent buy into this objective and join, so that as a Society we are greater than the sum of our parts.

Our junior lawyers are the future of the profession so one of my aims is to continue supporting them and to have several events during the year to encourage new members August 2016


What are the aims of the Law Society 2020 Discussion and what do you hope it will achieve?

The Discussion is asking for solicitors’ views on how the Law Society should look in 2020, based on how it should respond to the changing legal market and how it should continue to represent us, its members. My understanding is that how clients buy legal services (including in-house lawyer buyers as well as small and medium sized businesses and the public) is a main focus. In particular, buyers of corporate legal services are wielding greater bargaining power. This is because they now have greater access to information to compare the cost of legal services, including a firm’s willingness to unbundle. This enables them to source legal services from what they consider to be costeffective providers and alternatives to traditional law firms. This is a positive thing for the profession, as it will encourage all solicitors to work smarter and be more competitive. The implications of the Big 4 accountancy firms offering legal services should not be underestimated. One of the other areas of focus, I believe, is the automation of routine work, which may result in technology driving innovative models of delivery or services solutions including online dispute resolution. It is difficult to see how the Law Society will achieve this, as it is by no means certain quite how changes will play out over the coming years, but I think it is important that solicitors are still represented by an independent body, that itself remains relevant in the changing landscape. The discussion will help draw on members’ opinions of how changes can be dealt with, how practice can (and will need to) evolve, and how the solicitor brand maintains its status in the public psyche.


How important is the role of regional law societies in representing, supporting and promoting the needs of practitioners on a national level?


I think it is crucial. Regional law societies provide an effective and efficient method through which to transmit their message. At Kent, we have been very fortunate to have the President of the Law Society (of England and Wales), Jonathan Smithers, as one of our members for over 20 years, and as Council Member for Kent he has also proved to be an excellent conduit between the members and the Law Society. A number of our members also sit on committees at national level and we see that as vital to the members of Kent.


How do you think solicitors are perceived by the public? Do regional law societies have a part to play in building relationships on this level?


The public’s perception of solicitors has changed enormously in the last decade. I fear the public’s view of the profession has been diluted and there is no longer the respect there once was. Even now, those who haven’t had to deal formally with solicitors still see the profession as being an elite and wealthy group, which is simply not true. I hope that such perception changes if they have personal involvement with a solicitor. I don’t know whether regional law societies can change those types of attitudes, but it is something that we strive to do in all our interactions with the public. Ultimately, it is down to individuals and unfortunately, there may always be a few whose actions can tarnish the reputation of the rest.


Do you feel that the Kent Law Society has a voice in wider conversations with the Law Society?

Modern Law 51


If deregulation happens, then being a solicitor may cease to mean anything if it does not distinguish us - as a mark of excellence, as an indication of expertise - from others who provide legal services


We certainly hope so! We have a very active committee and pursue initiatives across a broad range of topics year on year. Many of our members are also involved with other professional boards/committees (for instance the Kent Criminal Justice Board) which have specific responsibilities based on practice areas, but these all feedback to representing solicitors collectively, both to the Law Society and elsewhere. The role that our Council members play is particularly important in transmitting the views of our members back to the Law Society, but so is our proactivity, and the role that we, the office holders, play in representing Kent Law Society at every opportunity – for instance at the Presidents’ and Secretaries’ Conference in Chancery Lane: if we are not there, then we have no voice.


What does the future look like for the legal profession, on a regional and national level?

No doubt very different from the profession that my generation qualified into. It is impossible to predict what it will look like, but I have already highlighted above some of the factors that are going to play a huge role in the coming years in how the legal market will change: technology, the commoditising of legal services, competition from a wide range of providers. Regulation will also play a part in how the profession evolves: if deregulation happens, then being a solicitor may cease to mean anything if it does not distinguish us - as a mark of excellence, as an indication of expertise – from others who provide legal services. I hope this does not happen and that there is a role for the profession for many years to come.

Vanda James Vanda James became President of Kent Law Society in May 2016 and will be in office for 1 year. She is also a partner and leading family lawyer at Cripps LLP, which has offices across Kent and in London. With more than 25 years experience, Vanda has a well known reputation for matrimonial work and is recognised as a leading lawyer, both in Chambers and Legal 500. Specialising in assisting wealthy individuals with complex family matters, both within married and unmarried families, Vanda is a trained collaborative lawyer and a member of Resolution. Prior to being appointed President, Vanda was Honorary Treasurer of Kent Law Society from 2007 to 2015 and was former President of Tunbridge Wells, Tonbridge & District Law Society in 2011. Consequently, she has a thorough understanding of law society nuances and how best to represent the interests of all its members. Vanda is an active athlete and lives in Kent with her husband and golden retriever, Baxter, and has a grown up daughter.


The show-stopping impact of cybercrime Paul Nixon, a Partner at the Ashford office of top-20 accountancy firm, Wilkins Kennedy, talks about the firm’s work with solicitors to help them build awareness of the dangers of fraud to their organisations. he ongoing issue of cybercrime is something that affects everyone, but the implications for solicitor’s firms in particular can be huge. Wilkins Kennedy’s Kent offices recently ran a series of seminars for solicitors and small businesses on the dangers of ‘vishing’ – a compound word describing ‘voice phishing’, or the fraudulent act of gathering sensitive information over the phone, through false identity. The seminar’s focus was on small businesses, particularly smaller legal practices, who were most at risk of being targeted by fraudsters because they are unlikely to have the same layers of protection that a larger firm has in place as standard. The seminar brought up the case of a solicitor who went bankrupt after falling victim to fraudsters. A call from her bank told her that her security had been compromised and that she was to call the number on the back of her debit card. She did so, however, it turned out that the caller was not from the bank, but a fraudster, who had stayed on the line, asking her to transfer money ‘safely’ away in to her other holding accounts. Within minutes, she had been the victim of a £750,000 theft. The solicitor’s bank and the police were contacted and the bank was able to recover £250,000, but more than £500,000 was left


untraceable. The solicitor was suspended by the SRA and is now unable to work. According to recent figures released by Action Fraud, the UK’s national reporting centre for fraud, more than 3,000 people in Kent alone became victims of scams in five months, the majority of which were committed against people using a bank card or online bank account. Further research by the University of Kent found that at least 4% of British adults have been victims of ransomware – where their computer has had software installed that encrypts data – and then faced demands for payment to have it restored. The issue of cyber security is wide reaching and as the example above tells us, can have devastating effects to anybody. Cybercrime is a topic that Wilkins Kennedy constantly covers at our WK Law events, a series of seminars held quarterly and cover a number of topics and issues directly affecting solicitors and their clients. If you are interested in hearing more about these events, or you would like more information relating to cybercrime or any other aspect of your legal firm, then contact Wilkins Kennedy today to see how we can help. Paul Nixon, Partner, Wilkins Kennedy.

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Land Registry privatisation: will the government listen? James Sherwood-Rogers examines the potential implications if the Land Registry is privatised, and explains why the government’s Call for Evidence comes at an opportune time. hether it is Brexit, political turmoil or Stamp Duty Land Tax (SDLT) which is the biggest factor weighing on current housing transactions, at least the impact will, with any luck, be minimal and short lived. The IMF has just stated that the UK won’t go into recession, which may help to stem the concerns. However, there are other interventions and reforms currently under discussion by policy makers that will have a long term impact on homebuying and selling. The on/off/on (and perhaps off again?) privatisation of the Land Registry has caused significant angst amongst property professionals, in particular conveyancing lawyers. The negative reaction has been based on some very real and practical concerns, and perhaps a degree of emotion as well – ‘selling the family silver’ has been a phrase used more than once. Whilst the private sector often brings a much greater commercial focus to what have erstwhile been public sector activities, in the case of the Land Registry, the considerations must also take account of its monopolistic position in the market, and the range and breadth of data that would be passing into private hands. A purely commercial organisation, given free reign, would be in an inescapably ‘dominant’ position in the market. It is no surprise therefore, that the government are having a tough time trying to figure out how to maximise the value to the exchequer without threatening the thriving and competitive homebuying process in England and Wales.


Increasing concerns

Concern grows when the project to centralise the LLC1 into the Land Registry is taken into account. I have no issue with this as a concept and believe that it may even have a positive impact on the operation of the property market. However, passing this project into private commercial hands as part of a Land Registry sell-off, coupled with a repeal of the access to data laws supported by our membership of the EU, would seem to fly in the face of the government wide ‘open data’ program. Speculation that centralisation of CON29 data is now also back on the Government agenda considerably heightens my concerns. There is a healthy competitive market, which operates currently in the provision of CON29 to conveyancing lawyers that includes both the public and private sectors. The nature of the market has led to better service levels, lower prices, more automation and much innovation in how property information is supplied to conveyancers. The notion that there could be (in effect) a nationalisation of this market for passing into a private sector monopoly is totally unacceptable. Apart from anything else, it would likely lead to less focus on service, higher prices and less innovation – in other words, Banner_190x50/Museo_Layout 1 07/09/2015 10:40 Page 1 all the benefits that healthy competition brings.

With the LR question, the LLC project and the current market wobbles, the proposed Call for Evidence by what is now called the Department for Business, Energy and Industrial Strategy comes at an opportune time. If the Government have any sense they will delay any decision over ‘LRPriv’ until after then. By accident rather then design the timing of the review is ideal, and provides the new government the perfect opportunity to do something it has failed to do so far – proper joined up thinking about the end to end homebuying market.

Digitisation and transformation

The reality is that the property market is doing a pretty good job of improving things on a gradual yet sustainable basis all the time, and the increasing sophistication of, and ease of access to, property search data and information is a good example of this. The concern is that Government does not take account of the evidence that is provided by property professionals from all areas, and instead follows the focus of a single strong lobby, or individual members of parliament who happen to have an issue about something due to a personal experience. While Government reforms such as HIPs have failed, property professionals have continued to improve and refine their product offering to consumers through greater voluntary networking, introduction of protocols, and increasingly sophisticated use of technology that provides greater transparency to the process. Indeed this process of digitisation and transformation will continue and change things much faster then any government, and indeed many organisations, understand. In addition, the introduction of self regulatory regimes which have served to protect consumers demonstrate the property industry’s ability to act with a public conscience. The Search Code (which celebrates its tenth year anniversary in 2016), is a good example of this, having protected home buyers, property lawyers and mortgage lenders alike with great effect during that time. It will be interesting to see if after going through the market, they decide to try and intervene once again in a market which its interventions have failed as often as they have succeeded. We have to hope that this new Government listens to those who know best – the people who help consumers buy and sell homes every day. Otherwise any changes might prove to be – like HIPS or the Green Deal, (or indeed with any luck, Brexit) – short term negative impacts with no long lasting benefits, that simply create anxiety and cost in the short term without any real long term benefit. James Sherwood-Rogers is Chairman of the Council of Property Search Organisations (CoPSO).



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Marketing Tech? Nice pen, shame about the service Our resident IT guru Charles Christian writes… A couple of years ago I contacted a local law firm (who I’d used in the past) about some advice on a commercial lease. I spoke to their new business person, who took down my details, said someone from the property team would be in touch over the next couple of days to fix up a meeting, and then sent me a glossy brochure singing the firm’s praises, along with a nice shiny pen with the firm’s logo on it. One month later the new business person was back in touch to ask me how it had all gone. Sadly it had gone nowhere, as nobody from property ever bothered to contact me – however as I’d been shopping around for quotes, in the intervening weeks another firm had already resolved the issue to my satisfaction.


An alien concept

Of course, we shouldn’t be to surprised that many law firms still struggle when it comes to marketing, as it was only in the early 1980s that Law Society regulations were first relaxed to permit any advertising, PR and marketing activities at all. We therefore still have a large number of more senior lawyers and, particularly, partners in practice for whom marketing is a frightening alien concept. And, as so often happens in such scenarios, there is a naive assumption that if they could just find the right piece of software or high tech gadgetry to do the job for them, all their marketing problems would be solved. This “how difficult can it be?” approach also explains why marketing and CRM (client relationship management) systems are the biggest “shelfware” (widely purchased but rarely properly implemented) software applications in the entire legal technology firmament. In fact, there are some big firms who’ve spent hundreds of thousands of pounds on enterprise CRM applications that are being used as little more than Microsoft Outlook address books for managing Christmas card lists.

Managing relationships

However, underlying all marketing activities – and definitely underlying the success or failure of all marketing technology - is the importance of a good, clean, up-to-date, and accurate database of all existing clients and prospective clients. Or, to put it another way, how can you hope to maintain or establish a relationship with clients and prospects if you don’t know who they are? “Of course we know who our clients are,” you say, “we have their names and addresses on file!” What, even the ones you’ve had no contact with in the last five or ten years? How do you know they haven’t moved away, or gone out of business – or even died? (And yes, every year there are complaints from grieving relatives about law firms, and other businesses – lawyers aren’t the only ones guilty of this crime – sending multiple copies of Christmas cards, wishing them a Happy New Year, to dead people.) It remains a source of fascination to me (both as a writer and

Technology is not some universal panacea operating in isolation. Behind it there must be the necessary business processes to ensure a firm has a joined-up approach to marketing sometime law firm client) that while firms now automatically include a client satisfaction survey form with their fee note at the close of a matter, they never subsequently bother to make contact to remind you of their existence or suggest you might like to review any of your legal requirements. For example, even though the simplest of wills can rapidly become dangerously out-of-date thanks to divorces, remarriages, new children, grandchildren, inheritances, rising property values (taking estates to IHT planning levels), in 30 years of having law firms draft wills for me, I’ve never once had one contact me to ask if my will arrangements were still adequate.

An integrated approach to marketing

Similarly, firms remain notoriously bad at cross-selling the services of other departments to the same client. For example, you have a wealthy private client who has just purchased a very expensive property. But where did they get the money from (and I don’t mean just for anti-money laundering purposes)? If it is because they are a senior executive of a local business, then they will inevitably need commercial legal services at some point, at the very least for business contracts, employment issues and planning. But does the residential conveyancing department bother to flag this to other departments or the firm’s business development/marketing people? Now, while it is certainly true that marketing technology can help correlate all this information and schedule activity lists (Contact Mister Christian in August 2021 about reviewing his will etc) these systems are only ever going to be as good as the information they contain. Which brings us back to where we began with the need for a good, clean, up-to-date, and accurate database of clients and prospects. To put it bluntly, if your system contains rubbish information, you are going to get rubbish results. (Or GIGO – Garbage In, Garbage Out in computerspeak.) As with so much of law office automation, technology is not some universal panacea operating in isolation. Behind it there must be the necessary business processes to ensure a firm has a joined-up approach to marketing, otherwise they risk repeating my experience. Nice shiny pen, shame about the lack of service. Charles Christian is the Editor-at-Large of the Legal IT Insider & tweets about #tech and #legalit at @GonzoNewswire.

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How to prepare for mediation Litigation is deadly serious. Lawyers must prepare for it very carefully, and that is a lengthy process. Mediation is different – or is it? Chris Makin reports. ell, it is different. But mediation, too, is deadly serious, and preparation for it must be just as thorough. The biggest difference is the dynamics, because the parties are in charge of their own outcome. So having lawyers as gladiators, fighting the enemy and leaving blood in the arena, is not how it works. In litigation, all decision-making is in the hands of the judge, and so often the winner takes all. But because in mediation each side must be content with the outcome, or they won’t agree to it, the lawyer has a very different part to play.


This is where empathy and understanding becomes important. The lawyer must decide which of their client’s arguments are worth running and which to leave in the background, and the lawyer must understand that the other side has arguments too. As a forensic accountant (my day job), I prepare for a Joint Meeting of Experts just as carefully as I do for a trial. Similarly, litigation lawyers and their clients must prepare just as carefully for a mediation. When arranging one, I send to both sides a Confidential Checklist which asks them to write down their strong points, their weak points, their best case and their bottom line, and so on; and it then asks them to pretend to be the other party and write down the same points. This Checklist is available to you on request. The point is that mediation is just as much about timing, strategy, information gathering and client management as it is about negotiation. Preparation takes time, research and effort. In a perfect world, this is my checklist for preparing for a mediation. It’s quite a list; do as much as you can, and the more you do, the greater the chances of your client coming well out of mediation. And with about 100 mediations under my belt, mine is the voice of experience! 1. Exchange information If litigation is to be conducted “cards on the table”, a fortiori with mediation. Exchange as much information with your opponent as you can, so that each party has enough to make fully informed decisions on settlement. Don’t copy the whole of your filing cabinet of course, but do share in advance all of the relevant documents. “Killer” documents produced for the first time on the day don’t help at all! A few weeks before the mediation, speak to your opposing lawyer and agree with them that each side has seen everything they need to see. 2. File review Read all your files as carefully as if preparing for a trial, and make notes of important points. This is the time to plan what you want to say in your Position Statement.

58 Modern Law

Mediation is just as much about timing, strategy, information gathering and client management as it is about negotiation 3. Case analysis Analyse your strengths and weaknesses as you go through your files. Think about how to handle any weak aspects, and plan how you will respond to them on the day; this is easier than responding “on the fly” to awkward questions during the mediation. Pretend to be your opponent (remember?) and do the same as if you were them. 4. Establish a range for the value for your case What is the true value of your case? Look at precedents. Consider how your witnesses will perform under the pressure of a trial. Reach your opinion of the total value of your case, and then discount back for liability, downside on costs, and the risk that you may get a judge who gives an illogical judgment. Consider carefully your client’s needs and intentions. When conducting mediations, I ask each party in caucus what they really want to achieve, and the replies are often quite amazing, and not connected at all to the arguments coming out of the mediation bundle. A mediator has to be very alert to the parties’ true needs, and work on them; but you, the lawyer representing your client, should have no such surprises because you should have asked your client beforehand what his true aims and needs are. Does the client need an apology? A resiling from a bad reference? A mending of relationships? Future trade? You need to know, and to know how much less your client will accept in money, if they achieve their true needs. 5. Plan your negotiations It is said in the army that any battle plan, however carefully prepared, goes wrong in the first few minutes. Maybe so, but it is still better to have a plan which can be modified as you go on, than sending troops blind into battle. So with mediation, plan how you wish to proceed, and you are in a far better position to adapt on the day. And take your client with you… 6. Agree the goal with your client …which is the next point. This is your client’s dispute, not yours, so an outcome which may satisfy you could be anathema to the client. And it is not helpful if the mediator detects that the lawyer and the client have different agendas, and are pulling in different directions.

August 2016


So meet your client, and agree with them both the outcome needed and the tactics which each of you will use to achieve it. 7. Decision-makers It is essential that all decision-makers attend the mediation. It is very difficult, after hours of negotiation, for one party to say that they have to ring someone before they can commit to a settlement, for that other person knows little about what has been discussed. That party outside the room may be a claims manager, or an elder of an ethnic community (“if I agree to this will I lose the respect of my community?”) or a spouse (“if I agree to this will my wife ever understand me or trust me again?”). The absent party must be involved, must be there, and must understand why a particular settlement is reached. I once did a professional negligence mediation where a litigant in person came with a claim for £750,000. It settled for £30,000, well within the defendant firm’s excess. And the claimant was delighted with the outcome! But the thing which made the settlement possible was that, with the six lawyers for the defence, there was a claims manager who wrote off costs to date of £169,000. Without that, there would have been no agreement. The claims manager was the true decision maker, but think how seldom we have the luxury of them attending a mediation! 8. Prepare your Position Statement After your careful review of the files and discussions with your client, this is the easy bit.

Make it brief, and make your bundle of documents as slim as you can. The mediator doesn’t want to know all the detail, and you don’t have to convince him of anything. He will keep to the big picture; the more you delve into the detail, the less chance you have of settling. And I normally prefer that experts are not present. Consider whether it is possible for the Position Statement to be joint with your opponent. That helps a lot; the mediator can understand the issues very quickly, and hit the ground running. 9. How much should you tell the mediator in confidence? It may be helpful for you to prepare a private briefing note to the mediator, or speaking to him. He doesn’t want to know about the bile of a broken relationship, but he does need to know the client’s true attitude. I make a point of speaking to each lawyer in confidence, before a mediation, to ask what sort of a client we are dealing with, what they seek to achieve, and then of course costs to date and the costs to trial which will be saved if the mediation settles. As, almost every time, they do. I do hope these notes, from a battle-scarred mediator, are of some help. I wish you success in meeting your client’s true needs, but remember that the secret of success is preparation. Chris Makin is a Chartered Accountant, Accredited Civil Mediator and Accredited Expert Determiner at Email chris@

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Guinness World Records holder, Thomson Snell & Passmore, implements Proclaim Case Management solution ull service law firm, Thomson Snell & Passmore, is implementing the Law Society Endorsed Proclaim Case Management Software solution from Eclipse Legal Systems.


Rated by Guinness World Records as the UK’s oldest law firm, Thomson Snell & Passmore can trace its history back to 1570, Darren Gower signifying a unique promise of longevity and continuity. Providing a full range of services to private clients and business organisations, the firm offers a friendly and supportive service from its team of astute solicitors. The firm will be implementing a ready-to-go Personal Injury Case Management system, serving to improve transparency and efficiency, whilst providing fee earners with a consistent approach to matter management. Additionally, Eclipse’s integration with the MoJ’s Claims Portals will ensure the process of submitting claims is much quicker, allowing fee earners to manage all submissions entirely through the Proclaim desktop.

Further to this, Thomson Snell & Passmore will take advantage of Proclaim’s integration with the incumbent Envision legal accounting solution, providing the firm with a ‘one view’ approach to financial management and enabling further analysis of overall productivity and efficiency throughout the Personal Injury and Clinical Negligence departments. Anthony Graham, Head of Information Systems at Thomson Snell & Passmore comments: “As an extremely well-established practice, we aim to continually develop our services, not only to meet the needs of the dynamic legal sector, but also to meet the needs of our clients. After conducting research into the market, we found Proclaim to be a fantastic solution, ensuring total flexibility and therefore enabling us to offer the most efficient and flexible service to our clients – something that is key to our longevity within the legal profession.” For further information, please contact Darren Gower, Marketing Director at Eclipse Legal Systems, part of Capita plc, via darren.gower@eclipselegal. or call 01274 704100. Alternatively, visit


Christina Blacklaws Q A

Did you expect the legal services sector to change so drastically when you started working in it? I don’t think of myself as that ancient (although my kids would disagree!), however, when I started in legal practice, being a solicitor was a secure job for life and there was little in the way of difference between most law firms. Some ‘city’ firms would even undertake legal aid work! So turning down city offers and starting my career in an all-woman ‘legal aid’ community law practice was not a completely crazy idea. I venture to suggest it would be a rather bold career move these days, unfortunately. The sector has changed almost out of all recognition. The largest firms have become global entities, legal aid has been attacked to the point of extinction (certainly in civil law) and the practical delivery of legal services has transformed. However, the common threads that bind us together as a profession have endured. Our common commitment to our and judicial independence; to the rule of law, access to justice and due process unite us.


What has been the key positive or negative impact of the liberalisation of legal services? Perhaps unsurprisingly, we have seen less change in the legal services market since the implementation of the Legal Services Act than was anticipated by some of the pundits. The Bill Gates quote about over-estimating the change that will occur in the next two years and underestimating the change in the next ten obviously springs to mind but people often forget his next sentence which is equally wise - ‘don’t let yourself be lulled into inaction’. I think, on balance, our profession has done a tremendous job of preparing through creative reassessment, and redevelopment of operating and service delivery models. One thing I would not have predicted is the response of the largest firms to market liberalisation. Some firms have completely reengineered their business models whilst others have developed their outsourcing to cover some complex business services functions and their centralised and paralegal teams provide ever more advanced level services, and that’s before we start to look at AI! Of course, new entrants are now becoming established and for some firms ABS gives them the ideal structure for their business. The Legal Ombudsman statistics and those from the SDT don’t support the concern that these new players would bring the profession into disrepute. With the new proposals in the current SRA consultation to allow solicitors to work (as solicitors) in nonregulated entities and the CMA recommendations to simplify the ABS process, we could be entering another interesting phase of

development. The proposals from the SRA could result in two tiers of solicitors, those working in a regulated entity and those who are not. The regulated sector would continue to operate with full client protection including full professional indemnity insurance, offering clear redress in the event that things going wrong. Advice from solicitors in unregulated entities may not be legally privileged - which means that vital protections for clients, that keep what passes between them and their solicitor confidential, would be under threat. This represents not only the erosion of a cornerstone of the justice system but it would also undermine the reputation of our profession abroad.


Who inspires you and why?

Gosh - this is a really difficult one as I feel privileged to be surrounded by so many amazing lawyers! But if I had to choose one, I think it would have to be the wonderful Lady Justice Hale, currently Deputy President of The Supreme Court. She combines a phenomenal intellect with great wisdom, integrity and decency. I admire her beyond measure.


Have you had a mentor? If so, what was the most valuable piece of advice they gave you? I have had the great good fortune to have had a number of amazing women throughout my career who have given me sound advice and, perhaps more importantly, great support. However, it was something my mother said to me as a child which has guided me. It’s simple but I think it is wise - ‘work hard and be nice to people’.


If you were not in your current position what would you be doing? This brings to mind another saying - do what you love and love what you do! I really enjoy my role as Chief Operating Officer at Cripps. I work with a fantastic team on interesting and challenging projects. I’m also excited about my new role as an officer holder at the Law Society which will lead me to be President in 2018/19. If I was forced to change career then I would want to do something where I could apply my skills and experiences for good. I know that sounds a little trite but over a long and varied career to date, this has been my primary motivation.

Christina Blacklaws is Chief Operating Officer at Cripps LLP and Deputy Vice President of the Law Society of England and Wales.

SAVE THE DATE Eclipse Proclaim Modern Law Awards 10th November 2016 | The Hurlingham Club, London Eclipse Proclaim Modern Law Conveyancing Conference March 2017 – Date TBA | Venue TBA, Manchester Eclipse Proclaim Modern Law Conveyancing Awards July 2017 – Date TBA | Rum Warehouse, Liverpool

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