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The Business of Law

Issue 30 June 2017 ISSN 2050-5744

Sally Swift Browne Jacobson

New apprenticeship routes have allowed change; they have challenged our traditional and well served route to qualification.

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MODERN LAW

Editorial Contributors Adam Bullion Head of Marketing InfoTrack

Melissa Hull Business Development Manager VFS

Alisa Gray Business Development Director Kaplan Altior

Noel Inge Managing Director CILEx Law School

Crispin Passmore Executive Director Policy, Solicitors Regulation Authority (SRA)

Paul Moonan Managing Director Restore

Dr Hugh Koch Clinical Psychologist and Director Hugh Koch Associates Gavin Russell CEO and Founder Wavex Ian Raine Director of Product Management iManage Jonathan Davies Product Manager Geodesys

Phil Snee Development Director Linetime Ltd Premal Dattani Chartered Financial Planner Saunderson House Richard Burcher Chairman Burcher Jennings Sarah Roberts Marketing Executive Eclipse Legal Systems

WELCOME hen I was coming to the end of my A-levels and it was time to decide what my next steps were, an apprenticeship just didn’t seem like a viable option for me. While the idea of “earn while you learn” and the chance of a job immediately after completion seemed like a great prospect, the lack of variety and the relative rarity of the apprenticeships that were highlighted to me at the time meant the choice of course and location that university offered made it the more attractive option.

W

Fast forward to 2017, and to the planning stages of this issue of Modern Law. The months this process covered saw two big changes in education in the legal sector. The first was the further development of the SRA’s Solicitors Qualifying Exam, which is set to start from 2020. The proposal has received mixed feedback from the profession, but it is agreed that the new route to qualification will have a significant effect on legal education when it is implemented, and the next few years will need to be spent ensuring this effect is a positive one. In addition to this, the government’s Apprenticeship Levy came into effect from April. The education and recruitment experts we’ve gathered to lend their insights to this issue of Modern Law explain what this means for law firms in far more detail than I can, but for the UK workforce as a whole, in all sectors and industries, apprenticeships just gained a much higher profile.

Matthew Claughton Managing Director Olliers Solicitors

There is constant change that is taking place among prospective legal professionals, as ever-shifting cultural and societal norms are influencing the attitudes and skillsets that the contemporary legal student can bring to the profession. The result is that as well as students having to learn to work within law firms, law firms are having to learn how they can embrace modern employees to make the most out of what they can bring to the table. While putting this issue together I found myself looking back to the end of my college days and questioning if I would choose an apprenticeship pathway had they been as advocated as they are now, and I believe the answer could have been a yes. But legal education will only continue to evolve as these changes take place, and it’s important that law firms are looking forward, not backwards, to ensure their future remains secure and fruitful.

Issue 30 June 2017 ISSN 2050-5744 Editor Brendan Gurrie

Editorial Assistant Poppy Green

Project Manager Amanda King

Events Sales Kate McKittrick

Brendan Gurrie, Editor, Modern Law Magazine. 01765 600909 @ModernBrendan Brendan@charltongrant.co.uk

Modern Law Magazine is published by Charlton Grant Ltd ©2017.

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.

June 2017

Modern Law 03


MODERN LAW

CONTENTS NEWS

07

INTERVIEWS

EdiTorial Board

13

07 Jason O’Malley talks news

Change is afoot in legal sector apprenticeships, writes Jason O’Malley, University of Law, who explains what the implications of the apprenticeship levy are for the legal sector, and the opportunities it presents for recruitment to the profession.

13 Sally Swift

Sally Swift, Browne Jacobson, spoke with Modern Law about the rising profile of the apprenticeship route to the legal sector, and the benefits this can provide for both law firms and the apprentice.

16 Professor Elizabeth Smart

As more focus is put on education and recruitment in the legal sector, Modern Law spoke to Professor Elizabeth Smart, Sheffield Hallam University, about how the attitudes of both students and recruiters are changing, and how the delivery of education must also change to adapt.

23

23 Digitalisation, and the rest of the horizon

Crispin Passmore, Solicitors Regulation Authority (SRA).

25 Being Fair to Claimants and the Court

Dr Hugh Koch, Hugh Koch Associates

27 The rising rate of fraud within the legal sector

Sarah Roberts, Eclipse Legal Systems

27 The employer levy

Noel Inge, CILEx Law School

29 Catering for the 21st century customer

Phil Snee, Linetime Ltd

29 The data analytics technology revolution

Paul Moonan, Restore Plc

31 The need for need-to-know security

EDITORIAL BOARD contributors

Ian Raine, iManage

31 The future of Legal Services in the 21st century

04 Modern Law

Melissa Hull, VFS

June 2017


MODERN LAW Issue 30 May 2017 ISSN 2051-6495

EdiTorial Board

FEATURES

37

33 Packaging and productisation Richard Burcher, Burcher Jennings

33 Is bigger better?

39

39 The next generation: solicitor apprenticeships

Matthew Claughton, Olliers Solicitors

35 Online signatures - why not? Adam Bullion, InfoTrack

35 Funding Pension Contributions for Children

Premal Dattani, Saunderson House

37 Anti money laundering for law firms

Jason Wainwright, Muckle LLP, discusses establishing the UK’s first regional solicitor apprenticeship programme, and what the initiative will mean for both law firms and prospective legal professionals.

41 The Eclipse Proclaim Modern Law Conveyancing Conference 2017

Jonathan Davies, Geodesys

37 Embracing innovation

FEATURES

Gavin Russell, Wavex

Modern Law takes a look at the discussions from the second Eclipse Proclaim Modern Law Conveyancing Conference, which this year took place on 23rd May 2017 at the Etihad Stadium, Manchester, asking conveyancers how future-proof they are.

46 Modern Law Conveyancing Roundtable

Modern Law gathered a roundtable of experts during our recent Modern Law Conveyancing Conference to focus on the quality of service and transparency of price within the conveyancing sector. Poppy Green reports on the discussion.

51 Brexit for lawyers: Obstacle or opportunity

Dr Michael Arnheim, author of A Practical Guide to your Human Rights and Civil Liberties, explains why Brexit won’t solve all of the issues currently present in the UK legal sector.

53 The myth of the IT Department profit centre Our resident Tech commentator Charles Christian writes…

57

55 Busting the Litigation Funding Myths

Maurice Power, Ferguson Litigation Funding, examines common misconceptions funders hear.

57 Hillsborough: The Families’ Fight for Truth and Justice.

Following the Hillsborough Inquests team winning Outstanding Achievement of the Year and both the 2016 Eclipse Proclaim Modern Law Awards and the 2017 Doctors Chambers Modern Claims Awards, Ruth Bundey, Harrison Bundey Solicitors, explains what the rest of the legal sector can take away from the case.

59 Interview with Alisa Gray

Alisa Gray, Kaplan Altior, discusses the key skills and training needed to suit the modern workforce, and how law firms are developing in order to embrace skills development.

60 Case Study - SearchesUK

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61 Case Study - Eclipse

Eclipse’s Proclaim Practice Management Software solution rolled out in 6-figure deal at Walker Foster Solicitors

61 Case Study - Landmark

Landmark launches residential flood portfolio to support conveyancers and homebuyers in the digital age

10 MINUTES WITH 62 10 minutes with…

Robert Camp, Stephens Scown LLP

June 2017

Modern Law 05


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NEWS

Jason O’Malley TALKS NEWS Change is afoot in legal sector apprenticeships, writes Jason O’Malley, University of Law, who explains what the implications of the apprenticeship levy are for the legal sector, and the opportunities it presents for recruitment to the profession. he legal profession is facing a period of major changes. Important as they are, I won’t talk about the possible impact of Brexit or the strategic impact of the many recent or proposed legislative changes affecting our sector, but rather focus on the transformation taking place in the world of recruitment and training as well as the development of new and existing legal professionals.

T

The approval of new employer-led apprenticeship standards, a proposed overhaul of the training framework for solicitor qualification and the introduction of the apprenticeship levy have all veered the minds of many legal sector employers on areas that have for many years been stable and unchanged. To date, these have naturally been the concern of learning and development and recruitment professionals, but the wider profession is now seeing the opportunities and challenges the new environment may bring. Some areas of change are quite subtle, whilst others represent radical departures from the status quo. The state of preparedness or willingness for change varies enormously across the sector, but whatever your viewpoint, there is undeniably an opportunity to review current recruitment strategy and think again about the future of the legal workplace. 2016 saw the approval of new apprenticeship standards for legal qualifications, and, as a consequence, many law firms took a first step down the path of apprentice recruitment. The new qualifications include paralegal, legal executive and solicitor apprenticeship standards as well as specific qualifications for conveyancers and probate practitioners.

Are apprenticeships new to the sector?

Many talk of the “introduction for the first time” of qualifications via an apprenticeship route, however, legal sector apprenticeships were actually first introduced over seven years ago. The original frameworks supporting the predecessors to the current standards are now largely being phased out, but many hundreds of young people and their employers have taken advantage of the frameworks over the past seven years. Training providers who pioneered the first frameworks when they were originally introduced have developed good practice and seen first-hand what it takes to support a successful programme. At the same time, employers who embraced the initiatives early have, by large, already seen the major benefits of diversification and cultural change a successful apprenticeship programme can bring. Financial incentives promoted by the government have historically played a part in encouraging apprentice starts, for example by providing cost free training for 16 to 18 year olds. Many firms, particularly in commoditised legal work, took the plunge and gave a chance to school leavers to take both administrative and paralegal roles in their firms when the first apprenticeship frameworks were launched. These public sector employers and private firms are now able to quickly adapt to the changes brought about by new standards and the levy, having already completed successful pilots and in many cases having already been through multiple completions of apprenticeship programmes.

June 2017

Time is of the essence. Ensure that you are registered with the Apprenticeship Service and identify a colleague who will manage your levy account

Modern Law 07


NEWS

Whatever your viewpoint, there is undeniably an opportunity to review current recruitment strategy and think again about the future of the legal workplace One such example is the firm in which I was Head of Learning and Development prior to my appointment at The University of Law, which saw school leavers joining the firm in 2012 completing administrative and legal services apprenticeships and now in 2017 commencing the solicitor apprenticeship. The initial concern across the firm when the idea was first mooted that we build an apprenticeship programme soon dissipated. With support from the top and excellent consultancy support, a comprehensive programme was born and the firm has not looked back.

needs to be made on whether this will involve recruitment, progression opportunities for existing staff or indeed simply looking at shorter apprenticeship programmes as part of internal development initiatives (possible now after the lifting of age restrictions on new apprenticeship standards).

Many firms with established programmes report similar results.

Successful programmes require training and support both from the training provider but also from HR, managers and supervisors of the organisation which is offering the apprenticeship. Culturally, adjustments may need to be made to maximise the benefits that can be gained from apprentices.

A number of factors led firms in both the public and private legal sector to embrace these early forms of legal apprenticeship, but in this year of major change, where are we heading next? Perhaps more importantly, what is the best way of maximising the opportunities available and making a programme a success?

Impact of the Levy

The government’s strategy for improving the nation’s skills and productivity is to generate significant growth in the number of people starting apprenticeships, with a target of three million between 2015 and 2020 (up from 2.4 million). As well as several carrots, the stick of the apprenticeship levy is being used to drive (and pay for) the achievement of this ambitious target. After all, there is nothing like a tax to help to focus the mind and achieve a policy aim. There is no doubt that the introduction of the levy is a major catalyst in some employers’ decision to look at apprenticeships for the first time. This has been spurred on in many cases by finance and HR directors keen to consider options both for recruitment and upskilling of existing staff. The funding of apprenticeships has never been straightforward, and even diehard employers who have been involved for years are having to grapple with the complexities of the apprenticeship levy and funding arrangements for non-levy paying employers.

A quick recap on some key facts:

• From April 2017 employers with a payroll in excess of £3 million have to pay an amount equal to 0.5% of monthly UK salaries to the government. This goes into a digital account from which employers can buy apprenticeship training and assessment services from approved providers. • There are fewer than 300 law firms nationally who are paying the levy who will need to develop a strategy for possible recoupment of their levy payments. For some this will mean acceptance of the payment of an element of the levy as a tax. • Smaller employers, as well as larger employers who have spent all of their levy, are able to access heavily subsidised apprenticeship training, so there is something in this for all employers. • In addition, most public-sector employers will be expected to demonstrate progress towards an apprenticeship quota set at 2.3% of their workforce. • Currently the levy can only be spent to support apprentices who work in England more than 50% of the time. • Employers national insurance contributions for apprentices aged under 25 have been abolished since April 2016 • Non levy paying firms will be able to use the wider eligibility rules to attract graduates and develop the skills of existing colleagues who were previously ineligible, with the government paying at least 90% of the cost.

So what should we do next?

About 350 new standards are being developed currently, so there is plenty of choice and opportunities beyond the fee earning community for legal sector employers.

If you are a levy-paying organisation that hasn’t yet finalised its plans, some key considerations to bear in mind include: • Time is of the essence. Ensure that you are registered with the Apprenticeship Service and identify a colleague who will manage your levy account. • For larger organisations without a dedicated apprenticeships team, you may find that appointing a training provider partner as lead provider to help you manage the budget and relationships with other providers is useful. • More widely, don’t think of the levy as a “pot” that needs spending. Rather, think of it as an investment. As with any investment, you need a business case. So, what are your organisation’s biggest areas of pain or missed opportunities and can apprenticeships be used to address these? • Get your senior leadership team and prospective apprentice line managers on-side early. Your provider should be happy to come and speak to them. • Don’t forget that apprenticeships can also be used in some cases to upskill existing staff. • With your training provider, “map” the job roles in your organisation (particularly at entry level) against the apprenticeships that currently exist or are in development. If you already have apprentices, speak to your provider about the most appropriate qualifications for starts from May 1st 2017. In many cases, there will be a new apprenticeship standard that is a better fit with your needs. If you are a non-levy paying employer, then my advice is: • Don’t worry, the changes are good news. In most cases the costs will be broadly the same or less than before and you will be able to access an improved range of apprenticeships. • You will be able to use the wider eligibility rules to attract graduates and develop the skills of existing colleagues who were previously ineligible, with the government paying at least 90% of the cost. In the new environment that the legal sector seems to find itself in, the new changes should not deter our willingness and aim to broaden access to the profession. Rather, we should embrace this and further contribute to developing successful programmes, which will shape the future of the legal profession for many years to come. Jason O’Malley, Director of Apprenticeships at the University of Law (ULaw).

While the incentives are there, employers need to plan and think carefully about how best to use funding. Thorough consideration

08 Modern Law

June 2017


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INTERVIEW

Sally Swift Sally Swift, Browne Jacobson, spoke with Modern Law about the rising profile of the apprenticeship route to the legal sector, and the benefits this can provide for both law firms and the apprentice.

Q

What are the key differences between the standard entry route into the legal profession and the apprenticeship route, and what are the benefits and challenges they present to apprentices?

A

The standard entry route to qualifying as a lawyer is a long-established one, which sees school leavers going off to university and then applying for a training contract at a law firm after they graduate. The legal apprenticeship is a new and exciting alternative route to becoming a lawyer, which combines a paid job at a law firm together with academic study for formal qualifications, paid for by the government and employer. The new apprenticeships open up the profession through the creation of alternative routes to qualification. Apprenticeships will contribute to increasing diversity and social mobility amongst school leavers and undergraduates. When we launched our first apprentice scheme in 2012, it was a very new concept in the legal sector, but we were determined to give access to those who may not ordinarily have thought a career in law was available for them, or who wanted to earn and learn as an alternative to university.

Q A

How have attitudes towards apprenticeships in the legal sector changed in recent years? University isn’t for everyone, but that shouldn’t be a barrier to those who want, and are able, to pursue a career in law.

In a time of high tuition fees and increasing personal debt, apprenticeships certainly are attractive. They now provide an alternative for people who prefer to go straight into the world of work, whilst also offering a route to a professional career. New apprenticeship routes have allowed change; they have challenged our traditional and well served route to qualification. The introduction of new routes to qualify has sometimes been met along the way by challenges, which were welcomed, to ensure that the new apprenticeships are robust enough and have enough rigour to stand on par with the historic entry route. Through the work carried out by employer-led Trailblazer groups, new legal apprenticeship standards have been developed, providing a set of options that the profession truly needed. The new standards are now a fully established alternative path to a professional career and are welcomed by the profession.

Q A

New apprenticeship routes have allowed change; they have challenged our traditional and well served route to qualification.

What are some of the advantages for law firms that embrace apprenticeships?

Legal apprenticeships are good for apprentices, equipping them with knowledge, skills and experience while providing a pathway to a professional career and the opportunity to earn while they learn. This is not a one-way relationship though; apprenticeships have been hugely beneficial to our business too.

June 2017

Modern Law 13


INTERVIEW

The SQE will also change the legal education landscape, putting the pressure on the training provider to ensure their study programmes are robust enough to mirror the other routes into the profession Since launching our apprentice scheme we have experienced improved productivity, increased profits and reduced staff turnover. When Browne Jacobson recruited our first cohort of six apprentices back in 2012, we were hopeful for success, and since then our program has continued to go from strength to strength seeing us recruit over twenty apprentices since 2012. In doing so it has allowed us to improve our retention rates, develop and recognise new legal career paths and increase our overall talent pool. Our apprentices get to know our business straight away; they develop a real understanding of the organisation they are part of and the clients we work with. Their passion for learning and desire to progress is infectious; they want to make a difference and deliver exceptional client service. They are extremely committed and passionate about everything they do and all they get involved in.

Q

Do you believe the Apprenticeship Levy will be successful in encouraging adoption of the apprenticeship entry route into the legal profession?

A

Since the concept of the levy was introduced many more law firms have come forward to promote and offer legal apprenticeships.

Apprenticeships in the legal sector have existed for some time, but the government-backed apprenticeship levy has created interest and action from many firms, some now favouring the new apprenticeship route compared to their tried and tested trainee scheme. Over the next few years I believe apprenticeships will be strengthened further as more people embrace this new alternative route. This will allow improved diversity, social mobility and should also see improvements to gender balance. Law firms will achieve increased productivity brought by apprenticeship training that will in turn increase profitability whilst boosting the quality of apprenticeships. Introducing apprenticeship opportunities is a positive step for our profession.

Q A

What’s different about the attitudes and lifestyles of a millennial workforce, and are apprenticeships more suited to this?

Millennial attitudes and lifestyles continue to change; this generation isn’t following in the footsteps of their parents and grandparents. Millennials were the first generation to grow up constantly connected to the world and without a doubt have embraced technology like no other generation. Millennials also have more positive attitudes about technology than other generations. They expect technology to make life easier rather than harder, and they need technology to allow them to use their time more efficiently. With such an interest in processes and services that work and speed interactions, millennials prefer to learn quickly and practically. They expect a service to work and deliver results whilst also adding value. Their own careers must satisfy this fast paced hunger for a practical, hands-on approach to learning, and the new legal apprenticeships will definitely deliver just that. The ‘earn while you learn’ delivery style of an apprenticeship allows millennials to explore their entrepreneurial spirit, better understand about communication, think creatively, problem solve and think outside the box to meet the needs of our clients. They are not afraid

14 Modern Law

to disrupt tradition and change their own career expectations. The new legal standards provide flexibility and adaptability, yet with a robust solid base cemented in the rigour of the regulatory requirements that need to be met to qualify in this exciting alternative route.

Q A

What does Browne Jacobson do to introduce and integrate apprentices into the company culture?

Our first cohort of six apprentices joined Browne Jacobson’s Technical Claims, Social Care, Environment and Medical Negligence teams responsible for a range of file progression activities. Each apprentice had a mentor assigned to them to support them through their learning and day to day tasks. The firm pioneered one of the first legal apprenticeship schemes in the country for school leavers and developed a mentoring initiative that has broken new ground in addressing issues over social inclusion and diversity. Our mentoring initiative has: • Developed sustainable alternative routes into the profession for local school leavers. • Demonstrated effective partnership working with major stakeholders such as ILEX Tutorial College, the wholly owned college of The Chartered Institute of Legal Executives (CILEx). • Helped to develop our apprentice sector expertise and add real value so they become the firm’s future fee earners. • Provided school leavers with invaluable first hand insights into the legal profession, addressing perceptions over social inequality, especially those from lower socio-economic groupings, and supporting and aiding their transition into the profession. • Supported the firm’s future legal recruitment needs with many apprentices working with some of the firm’s most high profile clients. • Enhanced the skills of our mentors in areas such as leadership, interpersonal skills and communication. In addition to the above mentoring, our apprentices are included in all usual aspects of Browne Jacobson life. They receive the same employee benefits and support as their colleagues and they receive ongoing help and guidance with their studies in the form of a ‘buddy’. This is usually someone who has also studied and developed their career with the firm, often completing their own CILEx qualifications, who can relate to the apprenticeship challenges of juggling studies with a busy day job.

Q A

Do you believe the Solicitors Qualifying Examination will improve access into the legal profession?

The Solicitor Qualifying Examination (SQE) will increase the choices when considering routes into the profession. In developing the SQE, the Solicitors Regulatory Authority (SRA) now recognise the new apprenticeship pathway as an alternative route, which must ultimately achieve greater access to the profession than ever before. The introduction of the SQE will also give confidence that all those that qualify, regardless of career pathway or educational background, meet the standards set by the SRA. With everyone being assessed to the same standard greater transparency of competence will be achieved and overall standards should therefore increase over time.

June 2017


INTERVIEW

The ‘earn while you learn’ delivery style of an apprenticeship allows millennials to explore their entrepreneurial spirit, better understand about communication, think creatively, problem solve and think outside the box

Q

How will legal apprenticeships that provide an alternative route into other types of role in the sector, for example support roles, develop further?

A

The creation of a suite of new employer-designed Trailblazer apprenticeships means that, for the first time, there is a comprehensive range of Government backed qualifications for the profession. These changes, together with the levy, mean that interest in legal apprenticeships has never been so high. Legal education will therefore continue to grow and evolve; especially because employer led Trailblazers are at the heart of how the future of legal education may be shaped. All of the new legal apprenticeship standards have been developed, allowing for progression and a clear career pathway. The skills learnt are both valuable and transferrable, whichever route an apprentice takes. For example, the Paralegal Apprenticeship trains apprentices in the skills needed to practice in a certain legal practice area. Paralegals work alongside solicitors on legal matters, often performing many of the same tasks and responsibilities. The practice area that the apprentice moves into will be determined by their law firm. At Browne Jacobson, all of our apprentices work in our insurance and health sectors. We now see our apprenticeship programme as a core part of our people strategy, and the success that we’ve had with our legal apprenticeship scheme is allowing us to now move into other areas in the business, including HR, facilities services, marketing and IT.

Q

Do you predict the apprenticeship route could become the mainstream entry route into the legal profession, and how do you see apprenticeships continuing to evolve in the future?

A

Apprenticeships will definitely continue to evolve and develop in to the future. The new standards and specifically the Solicitor Apprenticeship Standard could easily replace the traditional training contract route, especially if funding can be used from a firm’s apprentice levy pot. The SQE will also change the legal education landscape, putting the pressure on the training provider to ensure their study programmes are robust enough to mirror the other routes into the profession. The introduction of the levy and the new routes to qualify has definitely forced law firms to rethink their knowledge and talent management. This really is an exciting time to enter the profession and access academic learning in a very different way to previous generations. Gaining work experience whilst earning and learning has never been more open to all. I truly believe that the apprentice levy and changing educational routes really will improve diversity, social mobility and widen access into the legal sector. With apprenticeships due to make a significant contribution to meeting employers’ skills needs and providing increased opportunities for young people, this is a very exciting time to consider all the different routes in to a career in law.

June 2017

Sally Swift Sally Swift is Head of Legal Support Services at Browne Jacobson and is responsible for performance management and project delivery of Browne Jacobson’s Apprenticeships and Legal Academy talent development program. In 2012, Sally, along with Browne Jacobson partner Susan Mabbott, Vision and CILEx, pioneered Browne Jacobson’s apprenticeship scheme, one of the first such schemes in the country. She has since gone on to work alongside BIS, the DoE, and Skills for Justice, as well as with other UK law firms, on developing the Trailblazers Apprenticeship in Law initiative, in partnership with bodies such as CILEx, the SRA and the Law Society. Browne Jacobson is one of the UK’s leading law firms, offering a comprehensive range of quality legal services, with expertise across a number of key private and public sector specialisms including retail, technology, financial services, education, health, local and central government, brands, international and insurance. The firm has consistently outperformed the sector, posting record levels of growth year-on-year - a reflection of its impressive international, national and regional private and public sector client portfolio and a commitment to delivering exceptional client service. Browne Jacobson was the first UK law firm to be awarded a three star rating by Investor in Customers and in 2016 was recognised by the Managing Partners’ Forum as the ‘Best Managed National Firm’.

Modern Law 15


INTERVIEW

Professor Elizabeth Smart As more focus is put on education and recruitment in the legal sector, Modern Law spoke to Professor Elizabeth Smart, Sheffield Hallam University, about how the attitudes of both students and recruiters are changing, and how the delivery of education must also change to adapt.

Q A

Has interest in the pursuit of a legal career changed greatly in the 21st century?

The pursuit of a degree in law has always been a popular choice for many aspiring students. It has become more and more popular in my view, with a significant increase in women choosing a law degree. Whilst not all who study a law degree wish to qualify as a solicitor or a barrister, there has been an expansion in the provision of legal services across a wide range of businesses, and the law pervades all aspects of our daily lives whether we recognise it or not; there has also been a shift in terms of perception and a greater value placed on a obtaining a law degree. A law firm is a business, and the transferable skills that a law degree provides prepare students for entry into a variety of different professions. It is for this reason that we have seen an increase in the number of applications. Businesses state that they prefer applicants to have a law degree above any other, so a law degree is attractive to any applicant who wishes to enter into any profession at graduate level.

Q A

How have the skills and attitudes students can bring to the legal sector changed in recent years?

The skills and attitudes required in the legal sector have always been of great importance, and they have not so much changed as they have expanded. Academic rigour, the ability to analyse, problem solve and work with clients are clear transferable skills. However, there has been an increased focus on business and commercial awareness and a heavy emphasis, quite rightly, in relation to practical legal research. In addition to commercial awareness, students are also required to have IT skills and have a grasp of stakeholder management, client relationship management and have a clear set of values that defines their personal profile.

Q

Do you feel the legal sector is modernising quickly enough to meet the skills of a millennial workforce and the expectations of the modern consumer?

A

Change in any profession takes time, and the legal profession has made great strides in responding to a global world and the age of digitalisation. Positive changes have been made, and we have seen the creation of remote court hearings, electronic exchange and submission of documentation and beginnings of online courts. Protecting the interests of clients and ensuring our legal system is robust are key aspects when considering changes; this does mean that it takes time, but it ensures quality and the protection of standards. That said, the pace of change has been fairly conservative and not as widespread as it could have been.

16 Modern Law

Traditional methods such as lectures are an efficient model in terms of delivery of teaching, but are not necessarily the best way for students to learn

June 2017


INTERVIEW

The pace of change has been fairly conservative and not as widespread as it could have been

Q A

Are there any underserved areas of law where the risk of a skills shortage exists?

The savage cuts to legal aid have had a significant impact upon the legal system, with many areas left completely unserved, domestic violence being a good example. There has been an unprecedented increase in the number of litigants in person, and there are swathes of people who have been denied access to justice as a result of these cuts. Many firms and of course many universities provide legal advice on a pro bono basis, but it is only the tip of the iceberg. Where I work, in the Helena Kennedy Centre for international Justice, we have seen pro bono work increase exponentially. Providing access to justice for those who need it most is the cornerstone of the work that we do, but it is an issue for the legal profession as a whole, not just universities. The legal profession, particularly larger law firms, has responded to the increased levels of need, but it is not as widespread as it perhaps could be, and there is no actual requirement for firms and students to engage in this type of work, in contrast to the US as an example.

Q

How has the content or method of teaching law evolved to meet the needs of the contemporary student and a contemporary legal sector?

A

Teaching generally has evolved to meet the needs of the contemporary student, not just in law. Teaching takes place both online and face-to-face, and many courses are blended or online only to ensure flexibility of delivery. Online lectures and podcasts are commonplace and are not always used to replace face-to-face teaching, but to act as a consolidation tool and also to support those students who have not been able to attend the face-to-face teaching. There are still law schools that deliver the traditional method of law teaching and those who choose to set their teaching against a more practical, commercially aware back drop and use skills teaching as a predominant method of delivery. There has been a distinct increase in the number of universities offering clinical legal education and the number of university law clinics has risen exponentially. In some cases the law clinic work is part of the curriculum and in others is offered as a voluntary option. The increase is because of the vast numbers requiring access to justice as a result of the cuts to legal aid, but also because universities recognise the need to enhance their employability offer. Traditional methods such as lectures are an efficient model in terms of delivery of teaching, but are not necessarily the best way for students to learn; there is a tension between being able to deliver a cost effective degree and the need to provide cutting edge legal education, which in a perfect world should combine both the academic rigour or the discipline together with a clear practical. Teaching law has evolved, but perhaps not as much as it should have done or indeed needs to.

June 2017

Q

How can law schools ensure the theoretical teaching of law remains relevant and translatable to its practical applications?

A

Law schools have at their disposal a plethora of ways in which they can ensure that the study of law is not taught in isolation but against the back drop of practice. Many universities are increasingly adopting an applied approach to their delivery and creating innovative technique through which students may study the law. Providing a practical framework to teach through does not dilute academic rigour. I would argue that it enhances it. It is only when the law is viewed in a practical context that it begins to make sense for many students. It enriches their overall experience and provides them with key graduate attributes that serve them well in real life. The combination of theoretical law, skills and practice is a gold standard of legal education. It is demanding work, but it helps create better lawyers.

Q A

What effect do you predict the Solicitors Qualifying Examination will have on access to a career in the legal profession?

One of the key drivers of the SQE was to open access to the legal profession to all those who wished to study it. There are a variety of different pathways to qualification that it recognises, not least the solicitor apprenticeship route. By recognising the different ways that students learn it will open up avenues that were previously closed. Reducing the cost of legal qualification is also a key factor that should increase the numbers of those wishing to enter the legal profession, however, the cost of the SQE has yet to be quantified and that barrier may well remain, albeit it will have been lowered. The potential increase does not however mean that there will always be a job to go into, and whilst controlling the number of those who enter the legal profession is not part of the SRA’s remit, there is a concern that there will be too many solicitors and they may be forced to take on legal services roles for which they are overqualified in order to survive.

Q

How do you see the position of apprenticeships as an alternative entry route into the profession changing in the future?

A

Solicitor apprenticeships are an excellent way to earn whilst you learn and avoid significant amounts of debt. They have already been embraced by the larger firms in the sector, and there is a keen amount of interest from small to medium sized firms. I see no reason why this route will not increase in popularity. The issue at the moment is raising awareness in schools and sixth form colleges that the route is just as valid as a traditional three year degree with no cost to the student. The challenge lies in persuading students to immediately enter the work place and in their eyes forego the ‘university experience’.

Modern Law 17


INTERVIEW

It is only when the law is viewed in a practical context that it begins to make sense for many students

Q

What do you predict will be some of the biggest changes in the legal sector that legal professionals of the future will need to be prepared for?

A

The legal profession has been warned that it faces a threat to the work that it does as a result of the development of AI. That may be the case, but what is clear is that legal services have diversified tremendously over the past fifteen years, and I suspect that diversification will continue well into the future as the profession responds and adapts to the changes in the way that it already has begun to do so. However, one of the biggest changes must be the outcome of Brexit; the challenges lawyers will face are too numerous to count. The impact of the Great Repeal Bill, currently in seven separate parts and counting, will have wide ranging ramifications for how we do business for many years to come. The impact on an individual’s rights and freedoms will need protecting, and in a global society and economy it will be impossible for the legal profession to operate in isolation. The legal profession will need to be very well prepared for the challenges that the process of Brexit will bring for many years to come.

Q A

How else will legal education adapt and evolve in the future?

How legal education adapts and evolves in the future will depend to a certain extent on the regulatory bodies of the SRA and BSB and also how well universities respond and perform in the TEF. The introduction of SQE has forced legal education providers to rethink their entire position, and for some this may mean business as usual; but for many it will mean the creation of new law degrees that adapt to powerful external factors. The SQE has been five years in the making and will not be introduced until 2020. Beyond that, my view is that there will come a point when the profession will become increasingly specialised, and as a result the current breadth of knowledge required at point of entry will contract. Legal education has the capacity to be a lot more flexible in terms of delivery methods than it currently is, and to a certain extent this is driven by the face-to-face requirements that universities need to show in order to prove that they are delivering value for money in the eyes of the student. Legal education should allow a person to study when, how and where they like and build a rich portfolio of experience in areas that interest them the most so that they become specialists and experts best placed to provide cutting edge legal advice.

18 Modern Law

Professor Elizabeth Smart Professor Elizabeth Smart is currently Head of Law at Sheffield Hallam University, which recently received national recognition as Legal Education Provider of the Year 2017 at the Solicitors’ Journal Awards. Recognised as a National Teaching Fellow in 2016 and Principal Fellow of the Higher Education Academy in 2015, she endeavours to create the best legal education possible, with a particular focus on clinical legal education, inspiring students academically and emotionally with the confidence to succeed. She creates flexible, dynamic clinical learning environments which are reflective of real life practice, seeking out opportunities for students to enhance their employability and graduate attributes. She inspires her students with her enthusiasm and possesses an outstanding aptitude in her chosen career. Elizabeth creates a distinctive cutting edge to her curriculum design, and the work of her team in the Helena Kennedy Centre for International Justice has received national recognition as Highly Commended in the Access to Justice Awards 2016. She helped establish and grow The Sheffield Hallam Court Help Desk which was Highly Commended in the Law Society Excellence Awards 2014 and awarded the Faculty Excellence Team Award 2016.

June 2017


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EDITORIAL BOARD

Digitalisation, and the rest of the horizon e believe that risk management is a vital tool for all law firms. We are operating in a fast-moving legal services world, and any change, as well as bringing opportunities, also carries risk. Similarly, not adapting to this evolving environment and hoping that standing still will be okay is also a risk. We have a role to play in keeping everyone up to date on what we are seeing in the sector.

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Evolving technology and its uses is one area at the forefront of everyone’s thinking, especially because of the alarming increase in reported cybercrime incidents that can catch even the most ITsavvy firms by surprise. But as this issue discusses, there are other areas too. And really, the Government’s drive towards digitalisation in the courts should not really be a surprise to anyone. From a purely administrative point of view, making all documents electronic surely makes total sense; notwithstanding the fact that it is easier to keep client information confidential when using electronic documents, they are also cheaper, take less time to prepare and copy and are easy to carry. They are also easier to refer to. Colleagues have told me about how proceedings at the Solicitors Disciplinary Tribunal can sound like bizarre games of bingo or battleships as representatives give reference numbers to tell the panel which document in which bundle to go to. I can imagine those of you who spend a number of hours in court rooms can relate to similar situations of this analogy. We produce the Risk Outlook, with updates every spring and autumn, outlining the key risks and supplying additional papers that add context to particular issues that have arisen or have moved on. The Outlook, which can be found at www.sra.org.uk/risk, details what we think are the key risks currently threatening the profession and the delivery of high-quality legal services to the public and offers information on how to mitigate against these risks. Our priority risks, the ones we think pose the biggest threat to the public and are most prevalent, currently include the threat of money launderers infiltrating the legal system, and the increasing menace of cybercrime, as we mentioned, which makes up the majority of incidents reported to the police in the UK. Others include a lack of access to legal services and independence and integrity, particularly when dealing with personal injury cases or investment schemes.

We are operating in a fastmoving legal services world, and any change, as well as bringing opportunities, also carries risk up of the process, but for members of the public too. Vulnerable clients involved in proceedings can pre-record their testimony. This improves their access to justice, and helps with the proper administration of the rule of law. Inevitably, there are risks too. Not least the fact that not everyone in the UK has access to the internet, or is IT-savvy. While for many of us, computers are now second nature, that is not true for all, and by moving to a digital system, a section of the public could be prevented from accessing legal services. Those risks will need to be managed. Moving to online systems could also impact on solicitors’ skills. If a lot of work moves to the virtual arena, then practice skills will have to change to keep up. Principle 5 says solicitors must provide a proper standard of service to clients, and this is linked to our Competence Statement, which sets out in more detail how this looks. The core professional standards are laid out, with the onus on firms to add whatever skills suit their business, and allowing solicitors to improve on their specialist areas. We will do further work on this area, and update you on our thinking. I would like to think that regular readers of Modern Law Magazine are familiar with the support we provide on risk, which we talk regularly about in these pages. But if this is new to you, then you can find out more by going to the Risk Outlook, familiarising yourself with the priority risks, and reading through some of the papers we have produced. You never know, they might contain something you had not previously thought about, ultimately preventing you, your firm and your client from a headache that did not need to happen. Crispin Passmore, Executive Director, Policy, Solicitors Regulation Authority (SRA).

But now we are turning our attention to both the risks and opportunities around digitalisation in the courts. We are still developing our thinking, and would welcome your views on this, but our initial scan of the horizon suggests that there will be more benefits than risks. That isn’t just in terms of the speeding

June 2017

Modern Law 23


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EDITORIAL BOARD

Being Fair to Claimants and the Court Equally Addressing Customer Responsiveness and Claim Validity

Research by Lexis Nexis found significant differences in expectations of service quality and advice given between law firms and their clients, with key quality issues surrounding cost of good service, visibility and accessibility, and, overall, a desire for and expectation of greater process improvement. This is especially relevant at times of new market entrants with more aggressive pricing and business models, and requires a Total Quality approach to service, which can increase productivity and client engagement (April, 2017). At the same time, the building of any one particular claim requires significant focus on the reliability and validity on the ‘facts’ and evidence, especially scientific evidence. Practitioner research into how credibility and truthfulness are assessed is essential both at

expert witness level (e.g. obtaining claimant data and arriving at a robust expert opinion) and judicial decision-making levels (e.g. how do judges manage impartiality when faced with problematic claimant presentation?). Several universities are supporting these types of academic and practitioner research both in the UK (Birmingham City; Portsmouth), Europe (Stockholm University) and North America (Regina University, Canada). The ‘connect’ between law firms and the court, on the one hand, and the claimant, on the other, is a complex dual partnership with a need to maintain a pragmatic ‘visibility’ both internally and externally for all work done. Time spent building effective relationships between law firms, clients, and the court continue to be essential and require support from researchers and all practitioners to increase satisfaction and coherence in a complex field. Collaboration and trust between internal and external parties builds up effective relationships, improves service and reinforces the high quality civil claims process that currently exists in the UK. Dr Hugh Koch, Clinical Psychologist and Director, Hugh Koch Associates and Visiting Professor to School of Law, University of Stockholm.

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EDITORIAL BOARD

The rising rate of fraud within the legal sector

The employer levy

Following the high profile Mishcon de Reya case, how can firms ensure they are protected against fraud?

Will the introduction of the employer levy change the future of legal training?

he Mishcon de Reya case has major implications for the legal profession as a whole, proving not only relevant to solicitors that deal with property transactions, but to any matters where funds are held in a client account for an intended transaction.

he simple answer is yes! It is inconceivable that employers who are compelled to pay the levy will continue to fund training as they have in the past, which means that they will target their staff development on the apprenticeship route.

Regrettably, fraud, and in particular property fraud, is on the rise within the legal sector. According to the NatWest 2017 Legal Benchmarking Report, of 269 firms surveyed 24% have been hit by cyber-crime or fraud within the last year, which could be a result of an increased pressure to reduce due diligence activities in order to cater for higher volumes of work.

It’s a double whammy for the old law degree LPC training contract route. The SRA’s announcement that the Solicitors Qualification Exam will replace the traditional route to qualification comes at almost the same time that the employer levy takes effect.

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Although fraud is a rapidly growing trend within the industry, there are a few fundamental steps to mitigate the risks: Workflow technology Unfortunately, and perhaps unfairly, solicitor negligence is often blamed for being the biggest fraud risk by lenders. Using the right legal software will provide the control required over working processes and practices, with minimal manual input from the team, and therefore a reduced risk of human error. ID, AML and KYC checks As part of any client inception process, reliable and accurate ID/ AML checking needs to be carried out. Despite increased pressures, it’s important that this isn’t looked at as a ‘tick-box’ exercise; good case management software should have the required integration with such software, enabling busy solicitors to seamlessly conduct checks and receive instant verification of ID documents. Lawyer Checker Following the above, verifying details of the law firm on the other side of the transaction, particularly when purchasing a property for a client, is a crucial step. This can be done via a number of databases, but perhaps the most thorough method is through Lawyer Checker. This online service identifies whether the bank details provided have a track record of use in conveyancing, and this can be seamlessly achieved at the click of a button if successfully integrated with your legal software. Educate your clients Clients don’t always realise their actions aren’t secure, yet it’s law firms that are at risk of blame if clients’ details are exposed. Firms therefore need to thoroughly ‘train’ clients on methods of communication and how best to use them.

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It sounds the death knell for the solicitors’ qualification route that has become familiar to a whole generation of lawyers. For larger employers, the levy is paid at the rate of 0.5% of an employer’s pay bill, for exclusive use on apprenticeship training. Essentially, the levy is a hypothecated training tax, and while businesses generally oppose such taxes, this does have the great advantage of encouraging social mobility through apprenticeships. Our experience at CILEx Law School has been that employers generally don’t look back once they have engaged legal apprentices, and are usually delighted to see that the investment in future talent matches the rhetoric. One example is a local authority in the midlands whose legal apprentice was named apprentice of the year. And in many other cases our employers have told us that their paralegal apprentices are working at LPC level within nine months of being engaged. So if employers are compelled to pay the levy, what should they do to ensure that they get the best return? To benefit most from the talent pipeline, it is important that employers consider how they find and select potential apprentices. One very effective approach is to have an internship programme in place. A survey by Citibank showed that 78% of young people considered an internship to be an essential element of their career development. Career Ready (a charity that supports diversity in the professions by mentoring promising youngsters from less privileged backgrounds) asserts that an internship of 140 hours is ideal for spotting talent. Many interns supported by Career Ready have graduated into valued apprentices, with some already serving apprenticeships in the legal sector. The key to successful selection of apprentices through internship is to ensure the programme has structure and identifiable outcomes.

Unfortunately, the sophistication of fraud is ever-evolving and the repercussions to law firms are often disastrous. The greatest risks, however, can usually be eradicated by taking straightforward preventative measures and exercising extreme vigilance.

Time will tell, but the impact of the employer levy may be to change working cultures and the structure of the workforce of the future more than we expect.

Sarah Roberts, Marketing Executive, Eclipse Legal Systems.

Noel Inge, Managing Director, CILEx Law School.

June 2017

Modern Law 27


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Catering for the 21st Century Customer How have consumer expectations of legal services changed in the 21st century, and are law firms doing enough to meet these? xpectations have changed massively over the last few years and continue to do so. It has almost become a cliché to say that the modern day consumer of legal services has come to expect the same level of online interaction as they would when consuming any other type of product or service. This ‘truth’ is now widely acknowledged and taken as a ‘given’. The majority of law firms now realise how important this aspect of service delivery is to their future success and perhaps even survival.   The ongoing challenge is to determine the detail of what facilities and features need to be provided and to ensure they are made available in a secure and intuitive format. Customers are no longer satisfied with a simple ‘online enquiry’ or ‘SMS text update’, they want true pro-active involvement by electronic means. There are also huge pressures being brought to bear by data protection legislation and the rise in cybercrime.   Software providers are putting a great deal of energy into the creation of ‘client facing’ components. These applications take the headache of production away from law firms whilst allowing them to compete for business and satisfy the internet generation. Linetime has, for example, created a Liberate Self-Serve module that allows clients of any type and from any walk of life to access information relating to their legal matters. Clients can access documents and status reports, receive timely notifications and interact directly with the firm. The other huge advantage offered by such systems is that they provide more secure communication than traditional email. Emails are ‘out there’ and can be hacked or intercepted. With a product like Liberate Self-Serve the communication occurs securely within the firm’s own firewall. Nothing leaves the building.   Another contemporary expectation is that people want to be able to enter information online. The ability to fill in forms over the internet gives clients the freedom to choose when they want to provide the information and also (with the right technology in place) avoids the law firms having to re-key any data into their central system. Worthy of particular mention is the ability to allow the payment of bills online. Customers will pay for pretty much everything else in this way. Why should legal services be any different?   The legal market remains very competitive and any investment or outlay needs to be considered and managed carefully. For this reason many firms have perhaps been relatively cautious when embracing some of the more advanced facilities that are now available. However, in our experience, firms are generally aware of the changing requirements, and if they haven’t already put the appropriate technology in place, they are at least thinking about doing so.

E

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The data analytics technology revolution What do you predict will be the ‘next big thing’ in terms of legal technology? he age of putting ‘Big Data’ to practical use has dawned. Legal analytics technology is leading the way in revealing patterns, relationships and trends in key data, which can offer a depth of perspective to legal businesses, previously buried deep in the paper mountain around them.

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Analytics technology, which uses digital data capture as a starting point, can be used in many areas of legal work. Whether it is a question of litigation documents, e-discovery collections or transactional documents, this technology enables lawyers, law firms, litigants, judges and courts to better inform themselves on key aspects of their work, improve their decision-making processes and business strategies. When used as a predictive tool the technology helps law firms improve their case cost management or provides a competitive advantage in court cases. Many law firms are using predictive analytics to predict the behaviour of judges, juries and venues from past cases. This allows firms to prepare more efficiently for trials, which can have a significant impact on case outcome. In order to adopt this technology, firms must first have their paper documents and data in a digitised format. If digitisation of the business is not yet complete or even underway, it may seem a monumental task – although help is at hand. By outsourcing this repetitive, timeconsuming and yet vital step to a support service partner, businesses get an easy route to the completion of full digitisation. This strategy brings with it expertise; not only in specialist scanning and digitisation processes but also in impeccable accuracy and document security. Reputable document management firms’ employees are all DBS checked and law firms are safe in the knowledge that they use software that is compliant with UK Government security standards in terms of encryption. Data digitisation by scanning is a cost-effective way to enable quicker information retrieval and it facilitates data analysis, whilst at the same time reduces reliance on paper document storage, cuts administrative costs, avoids duplication of tasks, and strengthens audit trails. Being able to review, analyse and summarize their records online, from any device home or away, to suit their business means lawyers’ productivity improves, cases become less protracted and more efficient, customer service is quickened and fee-earners are freer to engage in higher-level data analysis to gain more of a tactical advantage. Current evidence points to the fact that the data analytics technology revolution is already in full swing. Being part of it depends largely on whether or not a law firm has yet scanned and digitised its documents. Competitive edge can clearly be gained through digitisation. Paul Moonan, Managing Director, Restore Plc.

June 2017

Modern Law 29


MSc in Construction Law & Dispute Resolution King’s College London Centre of Construction Law The Dickson Poon School of Law

Applications are invited for this highly regarded post-graduate programme: • two-year part-time, post-experience, cross-professional programme for lawyers and construction professionals, now in its thirtieth year, covering the law and its application to construction projects, practices, people and problems • four taught modules and a dissertation, including foundation modules on law for construction professionals or construction technology for lawyers • international, multi-disciplinary student cohort with strong alumni association • nine full days’ tuition each term in central London ( three weekends of Thursdays, Fridays and Saturdays) plus regular online tutorials • academic staff led by Professor David Mosey, Professor Renato Nazzini and Professor Phillip Capper, supported by leading academics and practitioners • access to leading UK and international research in fields such as alliancing, arbitration and BIM • specialist library resources and online facilities available to students • qualifies for professional CPD and, with the additional award-writing examination, exemption from the CIArb Fellowship examination • next intake September 2017 – early applications are encouraged (with a final deadline of 30 July 2017) Applicants must have a degree and/or acceptable professional qualifications plus, (for construction professionals and non-practising lawyers), at least two years’ relevant work experience; or (for practising lawyers), at least completed pupillage or one year of training contract. For a copy of the on-line prospectus and details of the application procedure, visit the College website: www.kcl.ac.uk (click School of Law/MSc Construction Law on home page). For further information visit the Centre of Construction Law website at: www.kcl.ac.uk/law/research/centres/construction/about.aspx, or contact Sue Hart on 020 7848 2643, or email ccldr@kcl.ac.uk.

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EDITORIAL BOARD

The need for need-to-know security What changes are being driven by new and emerging technology within law firms? n today’s modern work environment, law firms need complete confidence and peace of mind that their critical work product is readily accessible and protected by solutions designed for today’s security threats. Keeping information secure given relentless cyberattacks on law firms is non-negotiable; even with regular steps taken to secure the perimeter, the likelihood of a breach remains high.

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Segregating and securing sensitive content on a need-to-know basis rather than utilising the traditional “open access” approach is a critical part of any strategy to limit the exposure and keep this information safe. Segregation by matter, client, practice group or any other metadata property ensures that in the event of a breach, exposure is limited to the subset of documents accessible to the user whose credentials have been compromised, minimising the potential damage. The Association of Corporate Counsel (ACC) recently released their “Model Information Protection and Security Controls for Outside Counsel Possessing Company Confidential Information,” defining the new standard of care with regards to the handling of client data, and these reinforce the importance of need-to-know access and data segregation. The guidelines effectively call an end to the practice of open security that law firms have operated in the past.

The future of Legal Services in the 21st Century he legal profession has a noble history replete with great achievements. Times are changing and work remains to be done. The legal profession has a choice; it can sit back and rest on what has been accomplished, or it can resolve to venture forth to seek a newer world. It is vital to provide justice to individuals and to support the economy to ensure that it remains strong, independent and relevant in the 21st century. The profession must meet the challenges of our times, adapt and move forward with conviction, hope and optimism.

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So where does the profession stand? A fair share of the blame is laid at the feet of big law firms. Discontent within the legal profession extends to the culture of law firms, a culture where long hours and escalating billable hours are equated with value to clients and commitment to the firm. Other criticisms are more substantive. The main one is that justice is no longer accessible. Solicitor fees are too expensive. Court proceedings are too complicated. The sad truth is that around the world the legal profession and the courts are often not fulfilling the expectations of consumers of legal services. Legal systems everywhere are experiencing an access to justice crisis that cries out for innovative solutions. The first step is to accept the idea of change. Solicitors and judges need to stop fearing change. Change should not be an evil but rather the source of new opportunities. Over the next few decades, entirely innovative ways of delivering legal services will emerge, new providers will enter the market, and the workings of our courts will be transformed. Unless law firms adapt, many traditional legal businesses will fail.

Unfortunately, many of the legacy tools that enforce need-to-know security struggle to operate at scale and do not represent a good foundation for this closed security model. Setting up an ethical wall within a document management system can seriously tax the resources of the system and impact user productivity. Anyone who has ever had their document management system be slow for long periods while a wall is applied to a large workspace knows this is no minor issue.

On the other hand, a complete set of fresh opportunities will present themselves to entrepreneurial and creative young lawyers. One source of opportunity for the profession lies in making innovative use of technology and service-delivery models without sacrificing quality. It goes without saying that Solicitors of the future will need to be efficient if they are to remain competitive and relevant in the fast-paced modern world.

New approaches are needed that can handle the volume and complexity of control required to meet need-to-know access. Ultimately this means that your security policies, ethical walls and barriers need to be evaluated as part of the standard access algorithms of the document management system. Only document management system software vendors can deliver on this vision, through a combined content management and security platform.

The task of the legal profession is to examine how work can be done better and more efficiently, while maintaining the high professional standards to which it has always been committed. The integrity of legal processes and the interests of the client must never be sacrificed to efficiency. Flexibility and innovation, always. Abandonment of core professional values, never. Therein lies the challenge and the opportunity of the future.

As we move into a world where need-to-know security is becoming more of the default, emerging technologies are enabling law firms to meet these challenges head-on and implement barriers and walls at scale to meet client demands without getting in the way of firm workflows.

Melissa Hull, Business Development Manager, VFS.

Ian Raine, Director of Product Management, iManage.

June 2017

Modern Law 31


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EDITORIAL BOARD

Packaging and productisation

Is bigger better?

Do changing consumer approaches to products in contemporary society warrant a change in pricing and or structure of legal services?

How can smaller law firms keep up with the technological pace set by larger firms?

product is defined as an article or substance, whereas a service is the act of helping or doing work for someone. At one level, the line between products and services is perfectly transparent and obvious. At another level, smart providers of what were traditionally regarded as products or services increasingly understand there has been a blurring or conflation of the two, which can be highly advantageous in helping to increase market share and/or attract premium pricing.

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Take for example Apple computers, which occupy the premium end of the market. You only have to go into an Apple Store to see that there is something materially different when compared with other traditional electronics retailers. Apple understands that it is not sufficient to have a technologically great product; it also understands that great service is critical. This is why in every Apple Store you will see the place teaming with their employed geeks who are only too happy to demonstrate their deep product knowledge and helpfully supply you with the answers to the most idiotic and asinine questions with a smile. You also notice that many have an Apple Genius Bar where you can go for ten or fifteen minutes of technical advice, all at no additional cost, although obviously built into the product price. On the flipside, services are being increasingly ‘productised’ and turned into discrete saleable packages. There are countless examples, particularly in the digital and tech environment, such as mobile phone packages and Sky television packages. In the legal sector, we have seen nascent attempts at productising and packaging, including access to generic online precedents and templates, HR support and the new General Data Protection Regulation (GDPR). Another example of packaging that some firms engage in is in the context of retainers. There are many ways in which to configure a retainer, one example of which is the client purchasing blocks of hours at pre-agreed and often discounted rates. Without getting bogged down in the semantics, a service obviously doesn’t become a product simply because it is ‘packaged’, but law firms shouldn’t lose sight of the fact that one of the reasons why packaging and productising legal services is worth considering is because products generally have two great advantages over services; the buyer knows precisely what they are getting and how much it’s going to cost. Richard Burcher, Chairman, Burcher Jennings.

ncreasingly law firms are embracing technology as part of a brave new future. Yet what is the expense of implementing these technological advances, and are they only for the larger law firms, with smaller practices at risk of being left behind?

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We hear of big data and analytics, and firms finding better ways to deal with huge levels of information, utilising software capable of reviewing thousands of data points - saving money for the firm and clients. Artificial intelligence is a term that has been around for some time now as we are told of smart computers able to think like humans. Whilst artificial intelligence and big data analytics may not be accessible to all, it may be that smaller firms have no such requirements because of a difference in work type. Smaller outfits can take advantage of cloud based software. This is easy to access, use and update. All that is required is internet connectivity. Lawyers can work remotely in an agile manner. Savings can be made, there is no need for large infrastructure, the firm can pay for what is required and IT support is invariably provided. At Olliers we moved to the cloud in 2015 to coincide with digitalisation within the criminal justice system and we haven’t looked back. Our staff work with paper free digital systems whether they are providing representation at a police station, in the magistrate’s court or on crown court litigation. We encourage the use of mobile apps. In particular we use dictation apps to facilitate remote dictation as well as scanning apps. We have embraced video conference software for meetings and we have separate video conference facilities for prison visits, allowing us to represent clients in custody throughout the country. We regard ourselves as a smaller outfit with something like 30 lawyers. Training is straightforward and embraced by all. When it comes to digital marketing a smaller team is often more likely to be on message, and at Olliers all our lawyers regard themselves as brand ambassadors, providing web and social media content as part of our SEO and SMO marketing strategies. So yes, there is a risk of the smaller firms being unable to access some of the technology available, but many such firms do not have a requirement for such technology at this stage of their development. Other more accessible technology can be utilised to great advantage, allowing the smaller outfits to concentrate on their core areas and be adaptable and agile at the same time. Matthew Claughton, Managing Director, Olliers Solicitors.

June 2017

Modern Law 33


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EDITORIAL BOARD

Online signatures – why not? think that there is something inherently satisfying about being able to do everything from my desk rather than having to organise printing, scanning and postage. Maybe it’s just me, but when we have technology that makes signing documents faster, easier and paper-free, it’s a no-brainer. So with the Law Society releasing their practice of accepting the use of electronic signatures in July last year, I am curious about the slow rate of adoption.

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Industries such as accounting and finance are increasingly using electronic signatures, and it makes sense for the legal sector to continue the trend and remove paper from the transaction where possible. In what situation can eSignatures be used in law? Virtually any - from the initial beginnings of the transaction, such as the client care letter, to the completion of contract packs and SDLT forms. In the consumer world and often in professional lives too, electronic signatures are used to finalise documents. So it makes perfect sense to provide your clients with the same sort of efficient and enjoyable technology. Speaking to lawyers, it appears that the biggest barrier to adopting eSignatures is the understanding of security. But what if I told you that electronic signatures are arguably more secure than a wet signature? An electronic signature creates a rich and robust data trail that details the when, where and how, where a wet signature does not. An eSignature solution can capture information about the signatories including email and IP addresses as well as mobile phone numbers, cross verifying the information, providing authenticity behind the signature and sealing it against tampering. In fact, this clever technology effectively becomes a ‘witness’. In short, eSignatures package up so much information that using them can actually help minimise fraud. Indeed, at a recent Conveyancing Association meeting I attended, almost all the firms in attendance said they would be using them. That’s because uploading and signing documents electronically is simple, with modern interfaces including easy tools to add fields. Ideally, electronic signature solutions should also fit in seamlessly with your existing systems, and pull forms or data from your other matters. With this in mind, SignIT from InfoTrack has been created to slot within your workflow, allowing you to sign any document at any stage of your matter, or to use independently, allowing you to upload any document and have it signed from anywhere, any time. Technology such as this is certainly functional but it should also be enjoyable, and help your firm grow into a progressive and competitive business.

Funding Pension Contributions for Children P

arents are often reluctant to gift assets to their children, which they could access immediately, in case it impacts their career efforts.

Gifting using pension contributions can be a tax efficient way of reducing your future inheritance tax. (IHT) liability, while ensuring your children don’t have immediate access to the funds (with no access until at least 55). In addition, if your child is a higher rate tax payer, the overall family tax saving could be significant. Let’s assume your child’s earnings are limited to those from their employer (£85,000 gross), and they have no other pension arrangements. This tax year, a contribution of £40,000 gross could be made on which 40% income tax relief would be received. The higher rate income tax threshold is currently £45,000 and, therefore, higher rate relief would be received on the full annual allowance of £40,000 (£85,000 earnings less £45,000). While a greater amount could actually be contributed using carry forward relief, any excess may not receive higher rate tax relief.

Advantages

Contributing to children’s pensions will reduce the overall value of your estate, and subsequent IHT liability. If out of surplus income and of a habitual nature, the contributions are immediately free from IHT. Funding pensions will enable your children to provision for retirement, with their earnings directed elsewhere (for example, a house deposit or school fees). The majority of income and gains on investments within a UK pension are tax-free. Pensions are also outside of the children’s estate for IHT purposes, and up to 25% could be drawn tax free.

Overall Family Tax Relief

For example, to facilitate a contribution of £40,000 gross, your child will need to contribute £32,000 (net of 20%). The provider will claim 20% tax relief on their behalf, and they will claim the remaining 20% via self-assessment, reducing the net cost to £24,000. Should you survive 7 years after making the gift, you will also have effectively saved 40% IHT on the £32,000 gift.

Adam Bullion, Head of Marketing, InfoTrack.

For your overall family situation, the effective tax relief for a £40,000 gross contribution is £28,800, equating to 72%! Pensions and estate planning are tricky areas to navigate, though with significant advantages if tackled correctly. Premal Dattani, Chartered Financial Planner, Saunderson House.

June 2017

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EDITORIAL BOARD

Anti money laundering for law firms What effect will the introduction of the Fourth Money Laundering Directive have on the way firms conduct their antimoney laundering procedures? he European Union’s Fourth Anti-Money Laundering Directive (EU4MLD) will be implemented into UK law by June 26th 2017. Updated legislation includes the Money Laundering Regulations, Policing and Crime Act and Proceeds of Crime Act.

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The directive includes fundamental changes to AML procedures at law firms, including changes to customer due diligence (CDD) and a strong focus on risk assessments.

What’s changing?

• Under current Money Laundering Regulations (EU3MLD), firms could automatically apply simplified CDD under certain circumstances. Under new regulations, firms will be able to use these circumstances as a partial justification for simplified CDD only after conducting a documented risk assessment. • Exemption from enhanced CDD is no longer automatic. A decision to apply simplified CDD will need to be evidenced by a documented risk assessment and include PEP and Financial Sanctions screening. • Local politically-exposed persons (PEPs) must now be identified and will be subject to the same scrutiny as foreign PEPs. • The regulations direct firms to develop risk-based policies, and practitioners to conduct client risk assessments as a part of their CDD. • UK regulations already incorporate a risk-based approach, but the new directive goes considerably further requiring documented client risk assessments.

For law firms this means:

• Demonstrating that risk assessments are conducted and kept up-to date, including: clients, countries or geographic areas, products, services, relationships, transactions or delivery channels. • Policies and procedures that take the firm’s risk assessment into consideration. • Testing of internal policies, controls and procedures. • Training staff in conducting risk assessments, CDD and ongoing due-diligence. • Compliance reporting, electronic and hard copy records management. Law firms with majority-owned subsidiaries in other countries where minimum AML requirements are not as stringent, must also implement the same procedures with the subsidiaries. Additionally, for all businesses, CDD will be required when trading goods in cash with a value over €10,000 (rather than €15,000).

What can law firms do to prepare?

• Review existing providers of CDD services for compliance with new regulations. • Review integrating AML risk assessment and compliance systems to reduce costs, streamline and unify procedures firm-wide. • Implement staff training. • Money laundering reporting officers should perform and document an internal risk assessment; update policies to incorporate Client Risk Assessments, ongoing due diligence, documentary evidence and compliance reporting, and audit and test procedures. • Policies should be reviewed and approved by senior management.

Embracing innovation What changes are being driven by new and emerging technology within law firms? n increase in competition is currently driving innovation across sectors of all kinds, and the legal sector is no exception. As consumer demands continue to change in accordance with the digital era, businesses within this sector are having to deploy new technologies in order to remain as efficient and agile as ever.

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While this is a notable trend across the entire sector, the technology in question varies. Larger firms will most likely be replacing existing technology such as legacy document management platforms, whereas smaller firms might only be adopting technology for the first time. Although this increased need for technology is helping to drive greater efficiency, and therefore greater profits, its widespread adoption is allowing firms to undercut the competition, which in turn can negatively impact revenues. To mitigate this, firms must begin to explore alternative services that can help them to further differentiate their services, and incorporating the right technology can make this much easier. For instance, firms that have embraced business process management systems have the benefit of understanding their current efforts and efficiencies far better, and can therefore make good use of the technology to implement rapid changes as and when it is necessary. The growing awareness around cyber security is also something that is driving the implementation of new technologies. Just under half of all UK businesses1 suffered at least one cyber-attack in the past twelve months, which is an indicator of the threat faced on a daily basis. As the frequency and sophistication of these attacks continue to grow, so too must the sophistication of the technology used by businesses to prevent these attacks from impacting their daily operations. Looking towards the horizon, there are more disruptive technologies on their way. Artificial intelligence (AI) and machine learning could potentially revolutionise the legal sector as we know it by enabling firms to automate a range of legal activities. As adoption begins to pick up the pace over the coming years, firms who haven’t invested in the technology simply won’t be able to undercut their competition in the ways they previously would have, leaving them with no other option but to focus all their efforts on innovation. With all this in mind, technology is best embraced as a means to provide a platform to support change and growth, all while keeping firms safe from the constant cyber threat. 1. https://www.gov.uk/government/uploads/system/uploads/attachment_data/ file/609186/Cyber_Security_Breaches_Survey_2017_main_report_PUBLIC.pdf

Gavin Russell, CEO and Founder, Wavex.

Jonathan Davies, Product Manager, Geodesys.

June 2017

Modern Law 37


The next generation: solicitor apprenticeships Jason Wainwright, Muckle LLP, discusses establishing the UK’s first regional solicitor apprenticeship programme, and what the initiative will mean for both law firms and prospective legal professionals. olicitor apprenticeships are now a reality. It means school leavers can qualify as a lawyer without going to university - which we know isn’t for everyone. A handful of law firms have set up individual schemes but here, at Muckle LLP, we’ve taken a different approach.

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A little over three years ago we started looking at developing a solicitor apprenticeship scheme for the North East. We knew if we could get other law firms on board we could make a difference to aspiring lawyers in the region. Now Muckle LLP, Bond Dickinson, McDaniel & Co. Solicitors, QualitySolicitors Smith Roddam, Sintons Law and North Tyneside Council have come together to form the North East Solicitor Apprenticeship (NESA) programme. It is the first time a consortium of law firms has collaborated in this way and the region will have at least nine solicitor apprenticeships starting in September 2017.

How can competing law firms work together? The answer is incredibly well.

I’m not saying it was easy. There was no blueprint and it involved a lot of hard work from a lot of dedicated people, but working with some of our closest competitors has been a truly enlightening experience. There are many advantages too, such as economies of scale. We have shared practical things, like pooling resources for the recruitment process. We have shared best practice and we will continue to hold joint training events to help everyone’s apprentices form a peer group and support each other through the process. Most importantly, we have been able to offer far more opportunities to aspiring solicitors than if Muckle had gone it alone. The support, enthusiasm and commitment of the other firms involved have been amazing.

How does this help the next generation?

Fair and open access to the legal profession is something I have always felt passionately about. I was the first person in my extended family to go to university and grew up in an environment where post-16 education wasn’t valued or encouraged. And with the current system of loans and debt I am 100% sure I would not have gone on to higher education. Our apprenticeship scheme tackles that issue head on. It is a six-year programme and a fantastic alternative to university. Apprentices can earn while they learn, achieve an LLB (Hons) in Legal Practice and qualify as a solicitor, with no tuition fees to pay. They will gain not just the academic and technical skills, but also the practical skills required to become a lawyer, and I’m really excited to see how that extra experience helps.

June 2017

A career in law is becoming less of an option for many school leavers, no matter how much they have to offer. Through this disenchantment, our profession risks losing talented people to other sectors We launched NESA in December 2016 and we’ve been blown away by the response. Initially at Muckle, we intended to recruit two solicitor apprentices, but the calibre of the candidates was so high we decided to take on three.

Why are apprenticeships important for our future?

Today the average student leaves university £44,000 in debt.1 The burden is likely to be even greater for law graduates with university costs and the prospect of the LPC to consider. It means that a career in law is becoming less of an option for many school leavers, no matter how much they have to offer. Through this disenchantment, our profession risks losing talented people to other sectors. Not anymore. Solicitor apprenticeships open the door for hundreds of students who might previously have been put off by the crippling costs of higher education.

Fresh attitudes

I can understand the apprehension out there. You always get that with something new. But the North East is proof that solicitor apprenticeships are possible for practices of all sizes, and interest is growing. We’ve already been contacted by a number of organisations wanting to find out how they might start up a similar scheme. The first step is finding the right providers to deliver the apprenticeship. For us, that was CILEx Law School and City, University of London. Both previously worked together on a solicitor apprenticeship scheme and their experience has been invaluable. Now, particularly with the Government’s drive to establish 3 million apprenticeships by 2020, we are predicting a bright future for the next generation of lawyers. Watch this space. 1. See Degrees of Debt study by the Sutton Trust - http://www.suttontrust.com/ researcharchive/degrees-of-debt/

Jason Wainwright is Managing Partner at Muckle LLP.

Modern Law 39


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FEATURES

The Eclipse Proclaim Modern Law Conveyancing Conference 2017 Modern Law takes a look at the discussions from the second Eclipse Proclaim Modern Law Conveyancing Conference, which this year took place on 23rd May 2017 at the Etihad Stadium, Manchester, asking conveyancers how future-proof they are. he Eclipse Proclaim Modern Law Conveyancing Conference returned in May, taking place at the home of Manchester City FC, the Etihad Stadium, welcoming professionals from across the conveyancing sector to discuss and debate the current market. This year’s conference was jointly chaired by Tony Piccorillo, Partner, AVRillo and Chris Harris, Managing Director, Managing Director, Lawyer Checker, and sought to make conveyancing firms question how future-proof their businesses are in light of current political and economical changes and increasing client expectations.

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Mark Easton, Broadcaster and Journalist, was this year’s keynote speaker, and he discussed the direction of the housing market and the impact the outcome of the General Election may have on this, but stressed that at the heart of the market is “a profound, primal need” for a “safe, warm personal space”. Easton went on to explain each party’s policies that pertained to housing, noting a similar rhetoric in each manifesto around the need for more homes. Easton also described the issue of housing as “deeply tribal”, pointing out that among homeowners “more than twice as many voted Conservative as Labour”, while among renters “twice as many voted Labour as Conservative”, demonstrating the fact that “an Englishman’s home is his castle”.

Supply and demand

Easton examined the current government’s approach to housing, and how this would alter the market in the event of a Conservative win. He said the building process “must be sped up”, with a shorter time between planning permission and the start of building. He told delegates that Help to Buy is safe until “at least 2021”, and that under any government the programme will be around “for some time to come”. Moving on to Right to Buy, Easton said that new council houses will be sold “within ten to fifteen years”, with tenants offered first refusal and the money going towards building new homes for social renting. He explained that whoever won the election would be “committed to increasing supply”. However, Easton said, this is dependent on the building sector being able to meet the demand, and there are “acute shortages” of labour to build the houses already in the pipeline, sharing the statistic that “14% of builders” are “struggling to fill” vacancies. He suggested that if the next government limits immigration, then there will be “worries of real shortages” of the labour required to build enough new homes. He also pointed out a likely drop in the number of EU nationals coming to work in the UK in the lead up to Brexit, calling immigration a “two-way street.” Easton said that therefore there will need to be more focus on training “significantly more” UK citizens. Easton closed his address by explaining the abnormality of the EU Referendum, and what it meant for the General Election. He stated that “It’s not red versus blue” anymore, but more “nationalism versus globalism”, and that the real challenge for the next

June 2017

Mark Easton took to the stage for the keynote address

Whatever happens with the market, there are always opportunities for people that run businesses well to make money […] The CMA Report is potentially the chance for us to take responsibility Paul Saunders, Legal Eye government would be to tell people that “they still have a voice” and “hopefully a home to go with it”.

Breaking down barriers

The first panel of the day, “Client Care – Breaking Down Barriers”, was chaired by Piccorillo and comprised Graham Murphy, Product Manager, The Law Society; Mark McLaren, Council Member, Property Ombudsman and Panel Member, Legal Services Consumer Panel; Darren Cox, Ombudsman, Legal Ombudsman and Mark Montgomery, Customer Strategy & Marketing Director, My Home Move. Piccorillo first asked the panel how consumer expectations of conveyancing have changed. Cox responded saying “customers demand more”, making it more difficult for conveyancers to make a living. Piccorillo agreed, referencing today’s “Amazon culture” and stating “50% of all buyers by 2020 will be millennials”.

Modern Law 41


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If a law firm has got some really good reviews, the price becomes less significant Dawn Tew, Shakespeare Martineau He then asked the panel what the biggest pitfalls are for conveyancers in respect of client care. McLaren said LSCP research had focused on client care letters and revealed these receive a “mixed level of engagement” with clients. He described them as “difficult to read” and “lengthy”, and put forward three findings on how to change this, citing “personalised information with a clear purpose”, “information to be concise” and “key elements to be highlighted, easy to read and presented in plain English”. McLaren went on to explain the five things that consumers wanted to be personalised: “confirmation of a named contact, the scope of the agreed work, associated fees and charges, likely timescales and details of next steps or actions that are required”. Cox suggested the challenge was “a cultural thing”, saying that it’s easy to forget “behind every transaction there’s a human story.” He also described the difficulty his organisation sometimes has in reaching the complaints handler of a firm, saying “I wonder what it’s like for a consumer”. Next, Piccorillo asked what the largest areas of complaints are for conveyancers. Cox answered that “24%” of complaints were about delay, while “22%” are about failure to follow instructions. He surmised that “at the heart of complaints is communication”. He said the Legal Ombudsman would prefer conveyancers to have a “difficult conversation at the start” about expectations. He also said that without such conversations, clients “assume the delay is the fault of the conveyancer”, when this may not be the case. Murphy discussed the high expectations of clients, and how social media has caused “a real disconnect” between the marketplace and “the reality of the client”, while Montgomery identified three trends clients are seeking, these being “trust, control and flexibility”.

The panel were then asked how consumer perceptions of small and large firms differ. Montgomery responded that some smaller firms lack “the ability to invest in the sorts of services clients are starting to expect”. Though the panel agreed with this, McLaren said their stats show customer service “tends to be better with smaller firms” because “there’s a more personal touch”. Montgomery warned that “it’s a mistake to assume” that larger firms have no personal contact. Law Society research seemed to support this, as Murphy stated they have found “no real correlation between size and effectiveness in the market”.

Taking responsibility

Next up was the “Managing Your Firm” panel, made up of Paul Saunders, Managing Director, Legal Eye; Sheila Kumar, Chief Executive, Council for Licensed Conveyancers; Edward Donne, Director, Professional Indemnity, Howden UK Group Limited and Mike Ockenden, Director, Thornby Associates and Society of Licensed Conveyancers. Piccorillo also chaired this panel, and first asked the panellists what challenges smaller firms face that larger ones don’t. Kumar discussed the need for smaller firms to demonstrate a “sustainable business model”, and encouraged them to ask who would pick up the “regulatory and compliance burden” if the person who usually deals with it isn’t there. Ockenden highlighted training and recruitment as challenges for smaller firms, though pointed out there’s “no inherently greater risk to a small firm than a larger firm”. Saunders claimed that regardless of industry or size, if firms “run a strong business”, “the compliance and risk aspects should complement” it. The panel were asked how firms are modernising their day-to-day approach to the conveyancing process. Ockenden discussed an ever-growing list of the things conveyancers are expected to do,

Delegates filled the Etihad Stadium to discuss the conveyancing market

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A panel of industry experts discuss client care

Communication in the chain is an inherently messy process David Jabbari, Connect2Law mentioning “Japanese Knotweed and HS2 checks” as examples, and said new technologies can assist with a lot of the extra work and “take the risk out of the process” for conveyancers. Donne continued on the topic of risk, stating that insurers are looking for “financial performance”. He went on to say a failing firm will have a lot more pressures, and warned that currently the insurance market is “very soft”, but soon insurers will “tighten their criteria”. He claimed “the availability and cost of insurance” will “drive your processes” when the market hardens. Next, Piccorillo asked what impact the recent CMA report would have on price transparency. Saunders spoke about a feeling that everything conveyancers do “has driven down price”, and that using price comparison sites more could do the same. When asked about the influence of other external factors, Kumar expressed “the main difficulty is uncertainty”, particularly in regards to Brexit and cyber attacks. Saunders ended the panel on a note of optimism, stating there are always “opportunities for people that run businesses well”, and the CMA report could be a chance “to take responsibility”.

Trust no-one, assume nothing

Fraud and financial crime has been a hot topic in conveyancing recently, and therefore the next panel, “Identity Theft Cases”, chaired by Harris, reflected on fraud cases to help conveyancers be more vigilant around crime. This panel consisted of Rob Hailstone, Founder, Bold Legal Group; Trevor Hellawell, CEO, ExL Practice Development; Tim Prior, Director, PNCR Legal; Edward Powell, Director, BE Consultancy and Edward Donne, Director, Professional Indemnity, Howden UK Group Limited. Harris asked the panel what could be learned from recent high profile fraud cases. Hailstone advised “trust no-one, assume nothing”, and said fraudsters are

June 2017

constantly “adding more tricks to their repertoire”. Hellawell lauded fraud prevention technologies, but warned delegates to stay alert, as this could create the supposition that “because we’ve got a system everything’s fine”. Prior said that property “is and always will be endlessly attractive” to fraudsters, and therefore firms should constantly act as if they are “in the sight of the fraudster”. He also stressed the importance of speaking to clients about fraud, saying the majority of firms “think they’re covered in the paperwork”. Harris polled the delegates, asking how many speak to their clients about suspected fraud on the other side, and very few hands went up in response. Powell called conversations with clients about fraud a “great opportunity for firms to sell themselves” on how well they can protect their customers. Hailstone asked if holding the money is “a bigger burden than it needs to be”, and questioned if a different system was possible. Harris asked the panel what the key warning signs of fraud were. Donne said the same signs appear, noting “the trade needs to be done in a hurry” and “the proceeds are to be sent abroad” as common examples. Hellawell advised against underestimating what money laundering regulations require, as fraudsters are “so sophisticated now” that they can “fraudulently obtain a genuine document”. Powell questioned whether there was a problem with the system when the buyer’s conveyancer “is blind” to the information the seller has, calling it “a minefield of risk” that sits with the buyer. Donne explained that some conveyancers say they don’t send money abroad at the outset, which “raises an alarm for the fraudster”. Hailstone pointed out fraudsters target weaker firms, and firms on the other side get “caught in the spider’s web”. Powell revealed one fraud indicator as the service address, suggesting that if this is different from the transaction address it’s worth “having a closer look”. When asked what precautions firms who don’t see their clients should take, delegate Gareth Richards, Legal Director, Convey Law told the panel his firm asks clients to send selfies of themselves next to documents, saying “if nothing else, that’s a deterrent”

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The “Identity Theft Cases” panel looked at how firms can best protect themselves from fraud

and noting the one client who deinstructed them because of this policy turned out to be fraudulent. Prior recommended Skype as a similarly effective service for verification. However, Powell explained that fraudsters “prey on social engineering” and take advantage of people’s confidence in new systems, so suggested “a word of caution” with every new process, stating everything “comes back to the training”.

Industry leaders shared their advice in the “Leading the Field” panel

Speeding up the process

The Best Practice in Conveyancing panel was chaired by Harris and comprised David Jabbari, Chief Executive, Connect2Law; Mark Slade, Managing Partner, Fidler & Pepper; Justin Parkinson, Managing Director, Decision First and David Parton, Partner, Shoosmiths LLP. Harris started by asking the panel how relationships between conveyancers and lenders could be improved. Parkinson cited the first aspect as “secure technology”, as well as “maintaining dialogue” with lenders, keeping them up to date. Parkinson also said lenders had highlighted “it’s key” any issues in a transaction are brought to their attention “as soon as possible”, and they also advise “following what’s in their handbook”. Slade reiterated this, stating “communication is key”. Parton expressed frustration that lenders don’t offer “straightforward lines” for solicitors to get hold of them, claiming too much time is “wasted” with “talented staff waiting on phones”. Harris questioned whether the abundance of problems with lenders warranted more representation from conveyancing organisational bodies. He then asked the panel how communication between the numerous parties involved in a transaction could be improved. Jabbari called communication in the chain “an inherently messy process” and described his “own personal philosophy” as putting pressure on the work you’re responsible for. Slade believed Veyo “would have been the answer if it hadn’t been done in an amateurish and blind way”. Parton argued that with “clients now carrying computers in their pockets”, communication should be better. But Parkinson pointed out that it doesn’t all come down to speeding up, and that “you’ve got to move at the speed the client wants”. Harris asked how firms can work to improve information availability for clients, and Slade said lots of small information updates can work, adding that this counteracts “the desert of

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We’ve got a minefield of risk, and all the risk involved with the transaction sits with the buyer Edward Powell, BE Consultancy information” at more quiet points in the transaction, to which Parton agreed. Jabbari said he takes the opposite approach, but noted “you’ll never get it right”, as every client has their own expectations. Parkinson brought up the “conflict” between providing good customer service and meeting compliance. He said that while “everybody’s data hungry”, there are limits to what clients “can consume and understand”. There were mixed views on the effectiveness of pre-contract information packs, with Slade commenting “things were turned around pretty quickly” with Home Information Packs (HIPs), but Parton acknowledging that current consumer legislation is based on “a premise that people have time to reflect” and “the opportunity to change their mind”.

Blazing a trail

The final panel of the day, “Leading the Field”, was chaired by Piccorillo and included Sara Hutton, Head of Professionals Sector

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This conference was jointly chaired by Chris Harris and Tony Piccorillo

North West, Commercial Banking, RBS; Paul Hajek, Managing Director, Clutton Cox; Dawn Tew, Legal Services Director, Shakespeare Martineau; Lisa Gibbs, Partner, Shoosmiths LLP and Tom Bridge, Director of Conveyancing, Keoghs. Piccorillo first asked the panel about the pros and cons of being a big firm. Gibbs said one advantage was the “support” of IT and compliance departments, though acknowledged it can be easier for smaller firms to change more quickly. Tew noted the “investment in new technologies” as an advantage for large firms, but also said that regardless of size, “if you invest in your people you’re going to get a good return”. Bridge agreed, saying “it’s more a question of how the firm is run on a day-to-day basis”. When asked how leading law firms remain at the top of their game, Tew advised “educating the customer” and “listening to what they say” is “a large part of it”. Hutton told delegates to make sure all the people in your company “know what your vision is”. Hajek said to “never stop learning”, and Gibbs agreed, also mentioning “a constant conversation” with junior staff about how processes can be improved is beneficial. Bridge believed the companies that remain at the top of their games are “constantly trying to reinvent themselves”. Piccorillo asked how smaller firms can compete with larger ones, to which Hajek stressed the importance of being “proactive in answering what clients are looking for” through social media.

When asked about dealing with negative online feedback, Hajek recommended setting up Google alerts for your company name to be instantly informed of any bad publicity, and advised delegates to “deal with it in a positive way”. Piccorillo then questioned the panel about what the client of the future will look like. Bridge explained how clients are “far more tech-savvy” and want “instant gratification”, while Tew pointed out that if a law firm has good online reviews, “the price becomes less significant”. Hajek emphasised the importance of giving clients “what they want, not just what they need”. Hutton recommended outsourcing as a viable route to “sophisticated services” for smaller firms. Finally, Piccorillo asked how firms can protect themselves from external influences outside of their control. Hutton claimed they need to be “financially robust in the first place”, “have some cash reserves”, and only focus on “controlling the controllables”. Tew commented on the importance of planning ahead, advising delegates to “have a strategy for all scenarios”. Piccorillo closed the panel, and the conference, by discussing the “changing times” in the industry, but pointing out “there’s always been something on the horizon” and reminding delegates to “put what the client wants at the forefront”. Modern Law would like to thank everyone who attended, sponsored and spoke at this year’s conference.

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Modern Law Conveyancing Roundtable Modern Law gathered a roundtable of experts during our recent Modern Law Conveyancing Conference to focus on the quality of service and transparency of price within the conveyancing sector. Poppy Green reports on the discussion. SW: This Roundtable is quite timely as the regulators are going to be finalising their action plan in response to the CMA recommendations over the next few weeks and will consult in the autumn on the detail of those with the profession. This discussion will create great awareness and get the debate really started amongst the profession. We are going to be focusing on the transparency of price and service quality. In your view David, and the view of the firms that you work with, how have consumers changed the way that they select their legal service provider? DG: I think they have changed. Ultimately if you go and talk to many firms, they still do recommendations and referrals as primary choice, and the online part in some cases if they are cost conscious. The web has just aided the research process. Has it fundamentally changed it? I am not convinced, even as a web guy. PK: Our research found that recommendations and personal experience are still key and the internet isn’t being used that extensively. Only around a third of people buying and selling houses shop around, which is striking given the value of many property transactions, and only around a third of those that do shop around are using the internet. Conveyancing is interesting as it’s one of the few services that people may purchase multiple times throughout their lives, and many people return to a conveyancer they’ve previously engaged rather than shopping around. We think that personal recommendations are useful but are subjective and based on an individual’s own experience. MMont: There are some structural process elements and then some consumer behavioural elements. We know from research that consumers, probably 60%, get offered conveyancing by the estate agent that is selling their property, and historically around half of those go with that recommendation. The rest of the balance is made up of a big chunk who do choose based on previous experience or go with a personal recommendation through family and friends. Finally you’ve got another big chunk, which is as much as 40%, possibly more, who don’t know where to go to choose a conveyancer. About a third of the people who get a quote from us initially via the web are nowhere near needing a conveyancer. They are actually just in a process of figuring out what it’s going to cost them to move house, and the response that they get may shape their view of whether or not they are interested in using us.

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Attendees Chairman – Stephen Ward (SW), Director of Strategy and External Relations, Council for Licensed Conveyancers (CLC) Beth Rudolf (BR), Director of Delivery, Conveyancing Association Darren Cox (DC), Ombudsman, Legal Ombudsman David Gilroy (DG), Sales and Marketing Director, Conscious Mark McLaren (MMcL), Legal Services Consumer Panel Mark Montgomery (MMont), Customer Strategy and Marketing Director, My Home Move Matthew Pennington (MP), Tonic Works Paul Kellaway (PK), Assistant Director, Competition and Markets Authority Shelia Kumar (SK), Chief Executive, Council for Licensed Conveyancers (CLC) Valerie Holmes (VH), Licensed Conveyancer, Valerie Holmes Property Lawyer

The aspect of web search has changed a lot, and depending on the time frame you are looking at, the consumers are just so much savvier in how they interpret web results and how they dive down into the next level. SW: What do we know about the consumer’s approach? And what does this tell us about their view of conveyancing? There has been some discussion today about the value that consumers place on conveyancing. Speaking from the SLC, what do your members think their client’s perception of them is? VH: A lot of conveyancers feel that it doesn’t add value, and that it puts down our value because we are likened to comparethemarket. com, and it puts down your status as a conveyancer. My business comes off of the street and through referrals and recommendations, but what I’m confused about is why there is such a high volume in referral business, yet all the trends seem to say that work is coming from referrals and recommendations. MP: That’s down to the fact that people know that they can go online to compare conveyancing quotes, but usually they’ve already had someone say ‘put your house on the market with us and we know someone that can sort your conveyancing out’. It makes it harder to break that chain potentially. MMcL: The CMA is wanting the alternative business and liberalisation of the way law firms are structured and joining together. I know it hasn’t happened very much, but in the market you end up with perhaps more one stop shops, which will militate against price comparison because you just go to one place. You get everything so you wouldn’t need to do the price comparison.

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The challenge for lawyers is how we get beyond price in order to drive comparison and selection on service type and quality Stephen Ward, Council for Licensed Conveyancers (CLC) VH: How would a one stop shop not actually be a conflict though? MMcL: I think it can be. As we know, with estate agents and law firms, who do you owe duty of care to? It is the client.

people as conveyancers, so we are not going to push people and say the magic ‘would you like to go ahead with that’ quote. VH: But perhaps that is where we need to change.

BR: In Scotland, their biggest issue is not the one stop shops, it’s where that chain of one stop transaction is broken. It can work, but also consumers go into an estate agent, they will see a mortgage broker, get a referral, get a quote and then go online to establish whether that is a reasonable figure or not. At that point they might have difficulty, and that is what leads them back to the original quote.

SW: A lot of the response and discussion so far in the legal sector has been about price and the fear of a race. It seems to me that there is a great opportunity here for conveyancers and lawyers to start selling on quality instead of price. David mentioned that a lot of young people get the Google quote. Do we think there is an appetite from firms to embrace that?

SW: A minority of the firms you may work with have a quote generator, but presumably that works for them in creating leads and creating business for them?

DC: There is perhaps a fear from firms, because firms have been conditioned to the fact that it is all about price for a number of years. It would be a brave firm who actively markets themselves as ‘we are a bit more expensive but you get better quality with us’.

DG: It does – We have a firm in London and they are at the top end of pricing. They’re either very price sensitive or those that are particularly competitive still want to build that up. Whether they do that the right way is entirely different. For a group of 25 year olds, this is their first ever legal transaction of buying a house and the biggest thing they will do. And they just go straight to google, do all the research and make the decision that way, because their friends haven’t bought a house before. BR: One of my clients had an online quotation system and they had three sections to it – one that enabled the conveyancer to deliver the quote verbally, the other is just pure web, and the other was the estate agents, and what was interesting was that there was no difference in the conversion rate between the web and the solicitor’s office. The conversion rates doubled if you had an estate agent involved because they have sales people. But we are not sales

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MMcL: You gave the example of people buying a house for the first time; if they do go to the level of enquiring, what is going to come up? The first question those young people are going to ask is ‘what should this cost?’ MMont: I think the elephant in the room is the fact that some online quotes are added to over time with charges that aren’t really about extra work, whereas others are genuinely more all-inclusive. Our direct business is not especially price competitive in terms of headline prices in the online market; it is priced high but the price doesn’t go up. BR: How do you settle that with treating customers fairly? Surely it should be that you start with the registered freehold without a mortgage as your base, and then you’re adding in extra services such as leasehold or mortgage because they need that extra work. DC: I do wonder though if there is something in the service that we have a duty to provide to our customers, and I equate it to

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a garage where I take my car for a service. I want to know how much the service is going to cost, but I don’t expect to be told that it is £300 and here is a long list of additional costs for things that are part of the service anyway. BR: But also if you took it in for an MOT, you wouldn’t expect it to come back with new tyres included to get it through its MOT, unless you had agreed to pay for them. You are buying a title and then you find out about a defect; as long as the expectation of additional cost for the work is set from the start, then it does not impact the consumer experience. MMont: The commercial reality is that genuinely additional work, that couldn’t have been foreseen, needs to be charged for unless you want everyone else to subsidise the costs of clients with more complicated or unusual circumstances. You rarely get issues from clients where there is a clear explanation about additional fees and why they are being charged. BR: There is no way for consumers to identify whether there is a problem with a particular law firm, because you can look at Facebook and ratings, but actually you don’t know who has posted them. I’ve seen ones where they have posted a negative rating about my firm, but it is because they were the seller and there was a delay in their transaction. PK: One of our recommendations is that regulators should support professionals in engaging with online reviews. Lawyers shouldn’t be scared of the odd negative review as it can make the positive reviews believable. What is really valuable is for consumers to be able to see how a lawyer responds when things do go wrong. Our view is that regulation should reflect risks and shouldn’t stop innovation. Where there are artificial structures that prevent businesses delivering the service they want to, and barriers that prevent them from competing in innovative ways, that’s where we see the potential for regulatory reform. SW: And from your point of view, what are the sorts of information that conveyancers should be providing to allow the comparison? What do you think people find most useful? PK: Certainly, the press coverage on our findings and the response from the professionals has been heavily focused on price. Now price is quite easy because there is a pound sign in front of it, and people need to be able to be helped to understand what they are going

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There is perhaps a fear from firms, because firms have been conditioned to the fact that it is all about price for a number of years Darren Cox, Legal Ombudsman to pay. Quote generators are a clear and useful way of generating price, but there is more to choosing a lawyer than just price. Our mantra on this has always been about better information, not just more information. We are not experts in selling or offering legal services, but we do see a need for regulators and representative bodies to bring all these issues together and support professionals in helping their potential clients understand what it is that they can expect. SK: It just makes everybody think a little bit more about other sources of information. One of the challenges is trying to make sure that we have access to the right set of data information, because it is not necessarily something, and I don’t think the CMA are suggesting it in any way, that the regulators have to generate. But it is about making sure that we have got access to the right information, and to make sure that whatever does get produced can give a sensible picture of what is going on. PK: Certainly, to the extent that regulators are capturing information anyway, our view is that they should be looking to make that available on an open data licence and for re-use by aggregators in appropriate ways. We are trying to work together, collect similar data in a comparable way and so regulators can combine them into a single place so that solicitors and licenced conveyancers are brought together, and the average consumer that doesn’t know the difference between a licensed conveyancer and a solicitor isn’t presented with artificial boundaries and channelled into making a decision by default. MMcL: Is the consumer being overloaded with information? There is so much information already on the internet, that if anything, the majority might be driven back to other trusted partners, a brand that they are

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FEATURES aware of, or the recommendations from their parents or friends. And then in fact, you’ll end up with less choosing of conveyancers. SW: That is an interesting point you have made. In terms of brand, one of the things we are talking about here is how do law firms differentiate themselves from each other? How do you bring the right consumer to the right provider? MP: We have two different comparison sites. One is more geared towards people who want price, remote service and who are very comfortable in the realm of technology communication. We have also got a local conveyancing site which is geared towards people who want to go and see someone. The firm can be on one or both. We’ve been operating comparison sites for over seven years and haven’t seen the feared ‘race to the bottom’. Consumers do care about price; if you are twice as expensive as your competitors you need to be able to justify to the consumer why that is. Conversely, if you have the lowest fees but have poor ratings on independent review sites, consumers are savvy enough to find those reviews and make a judgement on whether it is worth the risk to use you. DC: For a number of years, we have published complaints data. The challenge with this is that the devil is in the detail in terms of what the data means. For example, a large firm processing thousands of transactions each month, we might get 100 complaints a year about them, but if 95% of the complaints are on poor service, then there are only five upheld complaints a year. Compare that with a much smaller firm who we get five complaints a year about, but all five are upheld so 100% of their complaints are poor service. It’s all about the context to make that information useful for consumers. The challenge for us is engaging with the market as it moves forward, to make sure that the data is of use to consumers. BR: If somebody is choosing on price and basing it on whether they will go with the £695 or the £995, where do referral fees fit in? SK: As part of the regulation now there has to be transparency. I don’t think that we would have any interest in saying that we’re going to try and be more transparent but in a way that could allow misleading information to be presented. PK: The challenge is how consumers respond to that information. Transparency is a good thing for consumers, but unless you get the presentation correct it can have unintended consequences. Ultimately it is a commercial decision. As long as people understand who they got the recommendation from, and how and why they received it, regardless of whether it is via a comparison site or an intermediary panel. MP: How do you ensure that you have still got a wide range of firms offering services if those comparison sites are relying on referral fees? At what point does it become not in the interest of the consumer anymore and in the interest of the firm? SW: Do people want to use conveyancing? I think the answer is that they don’t, but they have to. BR: But they don’t know why – and that is a really big problem. There is a thirst for knowledge and it would be much better if we looked to the consumer and what they want and how they would prefer the information.

The Council for Licensed Conveyancers (CLC) A history of innovation in specialisation The Council for Licensed Conveyancers was established in 1985 to foster competition and innovation in the conveyancing market. 30 years on we are still helping legal businesses thrive by finding new ways to meet changing customer expectations. Our approach is to support firms to achieve compliance and to accommodate different ways of working where we can. Our experience as a specialist regulator of conveyancing and probate allows us to tailor our regulation to those areas of property law. There has also been no need for an accreditation scheme for CLC-regulated firms or lawyers. Specialisation and the scale of firms as well as the effectiveness of regulation have meant that such schemes are unnecessary. This history, approach and experience may explain why CLC regulated firms have grown to enjoy a market share of transactions that is far greater than their numbers would suggest. CLC regulated firms make up just 4.4% of Land Registry account customers but generate more than 10% of transactions by value. To find out more about qualifying as a CLC lawyer, or how to set up your conveyancing or probate practice under CLC regulation, please visit our website www.clc-uk.org or call us on 020 7250 8465. SW: Do the SLC members talk much about this better engagement within the conveyancing process? VH: Communication is the key. Some of you are aware that the SLC have worked with Hannah McKinley producing informative leaflets, and so far the feedback from our members has been very positive. It is okay to send them information but at the end of the day is the consumer interpreting it in the way we intended it? DC: Traditionally we have always said that consumers should be given information in order to allow them to understand and make an informed decision. We have almost gone full circle here and gone back to the debate about price; there has to be a way of educating consumers on what the basic standards are and what they can expect. If I am a consumer and I have no knowledge of conveyancing, how do I know what the difference is between a quote for £300 and one for £700? It is getting across to people what those differences are and how we can justify those costs. SW: One thing that stands out from this session is that there is no brand in conveyancing that is so established that consumers understand and can relate to its values, and what they mean for the service they should expect from that brand. The challenge for lawyers is how we get beyond price in order to drive comparison and selection on service type and quality. How are firms going to find ways to explain to the consumer what their offer really is and what they can expect and are guaranteed to get from them? Kindly Sponsored by

PK: This returns to the point about having better information not just more information. DC: Most complaints are about communication. To me you have communicated when the person has understood the message you have sent to them.

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Brexit for lawyers: Obstacle or opportunity Dr Michael Arnheim, author of A Practical Guide to your Human Rights and Civil Liberties, explains why Brexit won’t solve all of the issues currently present in the UK legal sector. K law is in disarray – but this is not the fault of “Europe”. This article is being written after the triggering of Article 50 to leave the EU but before the negotiations have actually begun. Yet I can confidently predict that Brexit is not going to do anything to solve the serious malaise besetting UK law. The reason for this critical situation is twofold: domestic UK judicial activism on the one hand and, on the other, dereliction of duty on the part of the UK Parliament. Both of these factors will still be present after Brexit.

U

Why should this bother you?

Why should this bother you as a practising lawyer, as long as you can continue to make good money out of the system, regardless of how chaotic it may be? If you are interested in justice you should be concerned. And, with the law in an uncertain state, it is increasingly difficult to advise clients. Here are just a few examples of the problems besetting UK law: Tort: With Donoghue v. Stevenson, the well known 1932 case of the snail in the bottle, the law of negligence went into a tailspin from which it has never recovered. Lord Atkin’s “neighbour principle” was pure judge-made law. Lord Tomlin correctly pointed out in his strongly worded dissenting opinion that it was “not legitimate” for the court to deduce that supposed principle. In his dissent, Lord Buckmaster likewise sternly lectured Lord Atkin that judges could not just change the common law as they liked, which is what Lord Atkin, with the support of two Scottish law lords, had done. The current test requires that, in addition to foreseeability and proximity, for a duty of care to arise it must be “fair, just and reasonable” – a hopelessly vague and subjective standard. Contract: When is a prenuptial agreement not a binding contract? Answer: When a judge says so. At present, “prenups” are not generally recognised in the UK. Yet prenups are binding in most of Europe and the US. Why not here? Largely because it is left to the judges to decide, politically correct UK judges tend to favour the wife, and prenups are seen as favouring the husband. Divorce: “England is the divorce capital of Europe and out of step with other European countries.” Thus Baroness Deech, the former chair of the Bar Standards Board. “The notion that a wife should get half of the joint assets of a couple after even a short childless marriage has crept up on us without any parliamentary legislation to this effect – the judges have developed the law in a paternalistic and unprincipled fashion that has departed widely from parliamentary intentions.”

I can confidently predict that Brexit is not going to do anything to solve the serious malaise besetting UK law tend to do. Brexit will not change this, as the Human Rights Act will remain in force, incorporating as it does most of the European Convention on Human Rights, which is governed by the Strasbourg court. Dereliction of Duty: Besides judicial activism, the other underlying cause of the problems with the law is Parliament’s dereliction of duty. Judges are not supposed to make law, only to interpret it. Making law is legislation, which is the function of Parliament. But Parliament has failed dismally in this regard over a long period. The legislatures of most states of the United States have codified the common law - yes, the common law - leaving the judges very little scope for making up the law as they go along. Why could the UK Parliament not have done the same? Lord Neuberger: Lord Neuberger, the retiring President of the UK Supreme Court, ended a recent lecture with an important principle: “[I]n a speech concerned with the role of judges under a constitutional system based on Parliamentary sovereignty, it is perhaps appropriate to end with a reminder that any judicial decision can be revoked by Parliament through a statute.” Although Lord Neuberger called this a “reminder”, this important principle is evidently unknown to most lawyers – or to the Government. Yet there is no shortage of bad judicial decisions crying out for revocation. Let us hope that Brexit will provide an opportunity to embrace this practical principle in the name of justice and democracy. Dr Michael Arnheim, Barrister at Law, Sometime Fellow of St John’s College, Cambridge and author of A Practical Guide to your Human Rights and Civil Liberties (Straightforward Publishing).

Human Rights: Human rights law has become extremely “politically correct”, favouring special interest groups including terror suspects, illegal immigrants, failed asylum seekers and even convicted killers. Blame for this is usually laid at the door of the European Court of Human Rights in Strasbourg. But the domestic UK courts are not obliged to follow Strasbourg slavishly, as they

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FEATURES

The myth of the IT Department profit centre Our resident Tech commentator Charles Christian writes… ne of the great myths of law firm technology, one that tends to raise its head whenever a firm appoints a new managing partner, chief executive or similar senior leadership role, is that IT can be transformed from being a cost centre into becoming a profit centre.

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You can see why a firm might want to do this, as the average IT department budget does seem to involve a disproportionate amount of money spent on the purchase, rollout and training associated with upgrades to existing applications, plus annual software license and maintenance payments (what software companies call ‘recurring income’). Add in IT staff salaries and the cost of buying new and replacement hardware, laptops, tablets, servers, printers et cetera and that is a lot of money just to maintain the status quo before the firm even starts thinking of investing in new technologies that might deliver innovative and/or better services to clients. For equity partners, (and there are still plenty who can remember ‘the good old days’ of typewriters and carbon paper when technology played a relatively small role in most law firms) IT is frequently seen as a hungry and ever-expanding cost centre that bites into their drawings whilst doing little more than keeping the lights on. Not surprisingly, when someone comes along to suggest IT could be transformed into a profit centre that would actually generate revenues for the firm, their eyes spin like the mechanical reels on a fruit machine as they hear a loud Kerching! in their heads. Instead of paying larger and larger amounts of money to software suppliers, the firm could develop some of its own applications, and (this is the crunch argument that clinches the green light for many of these projects) because it is software ‘developed by lawyers for lawyers’, it will also be possible to sell the finished product to other law firms. It’s a beguiling argument, not least as it would appear that instead of starting from scratch writing an application, you can build upon industry standard platforms such Microsoft SharePoint and Microsoft Dynamics. Unfortunately this is as good as it gets. To begin with, the firm’s IT department will have to hire extra staff, including not only people with the specialist skills needed for platforms like Dynamics and SharePoint, but also general coders and developers, so existing staff are not overstretched trying to do both their regular projects and the new project (as a rule of thumb most law firm IT departments are understaffed).

For equity partners […] IT is frequently seen as a hungry and ever-expanding cost centre that bites into their drawings whilst doing little more than keeping the lights on If that is not enough to deter you, once the product is complete, the firm will need to hire sales and marketing people to try to sell it to other firms, as well as recruit trainers and helpdesk staff to support any customers it wins. Oh yes, and you’ll also need to confer with your fellow partners about all the contractual, intellectual property and product liability law issues that surround software products. Not least, as any software supplier will tell you, selling to law firms is a tricky business, as it costs them nothing to resort to legal action when anything goes wrong. Of course, don’t overlook the fact that each and every time Microsoft introduces upgrades to platforms such as Dynamics and SharePoint (and the latter has been totally transformed in scope and structure since it was first launched in 2001), you will have to change and rewrite your system to maintain the integration. It’s called the Tail Wagging the Dog. Then, in about five years’ time, the orders should start coming in, assuming anyone actually wants to buy your software in preference to the established products already available out there. You can also be certain that the competition will be offering attractive discounts to close the deals they want to win. The point to remember here is your software is not actually ‘developed by lawyers for lawyers’ – it is developed by lawyers in just one firm to address the needs of the lawyers in that firm. And how your firm operates may be entirely different to the ways of other firms. Charles Christian is the Roving Editor of the Legal IT Insider newsletter and also blogs about Tech & Stuff at www.gonzo.news and on Twitter at @ ChristianUncut

The firm will also have to factor in that some of its lawyers will be diverted from fee-earning to help with the product specification, design and functionality. That’s the ‘developed by lawyers for lawyers’ bit, and it can take a VERY long time. Even with professional software companies, new product development always takes far longer and costs way more than originally estimated and budgeted; and, unlike law firms, they do this for a living.

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Modern Law 53


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FEATURES

Busting the Litigation Funding Myths Maurice Power, Ferguson Litigation Funding, examines common misconceptions funders hear. itigation funding is a fast-growing sector, with investors placing more funds into the market, new providers emerging and the Courts acknowledging the value provided by the funders. However, there are many misconceptions and misunderstandings about what litigation funders do, who they can assist and how much they expect to get paid for their services.

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Below we identify the most common misconceptions and provide answers to bust common myths to go some way to put at ease those with concerns about litigation funding. 1) Litigation funders are only interested in multi million pound claims Providing that the litigation is meritorious, passes the funder’s risk assessment and, upon success, will generate enough to satisfy the costs of the action (legal and funder’s fees), whilst leaving the claimant with sufficient return for taking the action, then there are many funders who will look at claims of all sizes. 2) The funding supplied is a loan and has to be repaid with interest The funding supplied is a non-recourse investment in the litigation. Should the case be lost, then there is nothing to repay as the funder has accepted this risk when making their offer of funding. 3) I can afford to pay for my own legal costs therefore funding doesn’t apply to me This is true, however many claimants will look to use litigation funding to reduce the financial risk associated with litigation and/ or to remove the need for their finances to be tied up in, what could be, a lengthy legal process. 4) The Funders expect extortionate fees for providing assistance In many cases, the fee will be an agreed percentage of any win or a multiple of their committed investment. With competition increasing in the market, the funders are now becoming more creative in providing fee structures which better align the interests of the claimant and the funder. 5) Litigation funders are unregulated and cannot be trusted The Association of Litigation Funders (ALF) has a voluntary code of conduct for its members, however, membership is not mandatory and the majority of funders have chosen not to become members, preferring to rely on the terms of their Litigation Funding Agreement to provide comfort and protection for the claimant. 6) Funders will want to exert undue influence on the claim A professional and reputable funder will always want to review the progress made in the claim, however as they are only providing the funds by which a claimant can pursue a claim, they are unable to intervene, instruct or advise the acting solicitors.

By demystifying the process, our protocols and highlighting industry standards we can go some way in providing a greater access to justice 8) Litigation Funders will only consider funding all the legal costs Although this may be true for some funders, the majority will take a flexible view of the claimant’s needs. Many are able to fund only the disbursements and/or a percentage of the legal fees. 9) Funding poses a threat to the legal system and access to justice In actual fact, the opposite is true. The use of third party litigation funding has been ratified in the Courts in numerous cases. 10) Funding encourages frivolous litigation It is difficult to see how this would be the case because, as they are risking their money, all funders will only offer funding to cases that they believe have a high probability of success. 11) Funders are only interested in commercial disputes Provided that the funder believes that the case has a high probability of success, then most funders will be happy to review funding applications from other areas. 12) Funders would require after the event (ATE) insurance to be taken out when offering funding Since the implementation of the Jackson reforms, through the Legal Aid Sentencing and Punishment of Offenders Act 2012 (LASPO), the cost of ATE, which protects a claimant against adverse costs should they lose the case, is now not recoverable from the defendant. Therefore, the cost of ATE has to be factored in when the claimant is deciding whether to pursue an action. These are just some of the most common misconceptions and myths we hear about litigation funding. It is important that we as funders address these concerns and allay any fears our clients may have. By demystifying the process, our protocols and highlighting industry standards we can go some way in providing a greater access to justice. Maurice Power, Managing Director, Ferguson Litigation Funding.

7) Having funding will reduce the chances of the claim settling On the contrary, the presence of a funder in the claim will show the defendant that an experienced third party believes the claim is strong and that the claimant is well funded and able to go the course.

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FEATURES

Hillsborough: The Families’ Fight for Truth and Justice. Following the Hillsborough Inquests team winning Outstanding Achievement of the Year at both the 2016 Eclipse Proclaim Modern Law Awards and the 2017 Doctors Chambers Modern Claims Awards, Ruth Bundey, Harrison Bundey Solicitors, explains what the rest of the legal sector can take away from the case. hose of us privileged to act as lawyers for the families at the recent Hillsborough Inquests were honoured to receive Outstanding Achievement Awards at both the Modern Law and Modern Claims recent award ceremonies. We made it clear that we dedicated such awards to the families we represented, whose extraordinary persistence achieved vindication for their loved ones at the conclusion of the Inquests in April 2016, 27 years after the Hillsborough disaster. The inquests themselves had lasted for over two years, the longest running Jury Inquest in English history.

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As is now well known, the Jury concluded that many, many factors had played a part in the deaths that resulted from the crush in the pens on the 15th April 1989. These included the poor design of the stadium, defects in the crash barriers, a deficient safety certificate, errors by the Football Club preparing for the day, no steps being taken to delay the kick off when overcrowding became clear, failings of engineers, delays in the emergency response by the police and by the ambulance service, which could have resulted in many more lives being saved. But the crucial findings were the errors in police planning prior to the semi-final match, the errors in policing on the day, errors by commanding officers, which caused or contributed to the fatal crush, and errors when exit gates were opened in not ordering closure of the central tunnel which led to already overcrowded pens – amounting to the devastating conclusion that all 96 deceased were unlawfully killed. And as importantly, the jury concluded that there was no behaviour on the part of football supporters, which caused or contributed to the danger of the situation outside the football ground, or even which might have done, thus exonerating those who died and those who survived from years of vilification and cover-up. We now await the decisions of the Crown Prosecution Service as to what criminal prosecutions will ensue to bring about real accountability.

putting him or her and family members at the heart of the process. Uniquely, the proceedings began with pen portraits read out giving a real personalised description of each of those who died, whose ages ranged from 10 years to 67 years, often including humour, but always heart rending. Hopefully this centrality and emphasis will become the norm in the future. Another unique aspect was that for once the families were funded, without means testing, on a level commensurate with funding available to representatives of the State with full equality of arms. We can only hope that the present excruciating and intrusive system of attempting to obtain exceptional funding for bereaved families comes to an end for Inquests where the actions of the State are in question and where for example deaths in custody and other forms of detention are in issue. A further development, already embodied in a Private Members Bill of 29th March 2017 introduced by Andy Burnham MP, concerns changes to the law through a Public Authority (Accountability) Bill which would impose a duty of candour and a code of ethics on public bodies, with a legal requirement to cooperate with investigations into their conduct, something sadly lacking during the Hillsborough Inquests and which increased unjustifiably the length of time the Inquests took. Bishop James Jones, former Bishop of Liverpool and Chair of the Hillsborough Independent Panel, is soon to report to the Home Secretary on lessons that can be learned from the Hillsborough experience. We have all been humbled by the experience of working with and representing the Hillsborough families, an experience never to be forgotten. Ruth Bundey, Harrison Bundey Solicitors, is part of the Hillsborough Inquests team.

Far reaching lessons

Lessons as to the conduct of Inquests generally learnt through the Hillsborough process will be far reaching. One such issue is that of the centrality in any Inquest of the individual who has died,

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Modern Law 57


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FEATURES

Interview with Alisa Gray Alisa Gray, Kaplan Altior, discusses the key skills and training needed to suit the modern workforce, and how law firms are developing in order to embrace skills development.

Q A

What are the key skills that young lawyers need in order to thrive in the 21st Century legal market?

Today, young lawyers need a whole armoury of skills. In terms of my top five: strong interpersonal skills, negotiation skills, management skills, commercial and financial acumen and a good understanding of technology. These skills have always been important and are becoming ever more so as the demands on lawyers increase due to the explosion of technological advancements and a continued squeeze on fees.

Clients want to see real value added input from their lawyers. They want pro-active lawyers who have commercial knowledge, can drive a deal forward and help develop a solution. These are difficult skills that you are not taught at law school. It is no longer enough to simply be a legal expert; lawyers are expected to be the accomplished project manager, the empathetic advisor and the top negotiator, among other things. We used to call these “soft skills” but that is now the term of yesteryear. They should now be realised as “essential skills”. To be successful nowadays, a lawyer has to strike a balance between technical competence and behavioural confidence. A lack of technical competence exposes you to risk, whereas a lack of behavioural confidence prevents you from realising your true potential and providing the added value that the client is looking for.

Q A

What are some of the key challenges facing the legal training sector in regards to skills and training?

We have got to ensure that our training delivery meets the challenges faced by law firms; optimising training time away from the desk. The legal market is currently experiencing a period of unprecedented change - from the way in which people qualify into the profession and continue their professional education to the pressures of globalisation and the use of artificial intelligence instead of human resource. We as training providers have to provide alternative means of helping young lawyers develop relevant skills and experience now that many jobs on which they used to “cut their teeth” are being done by computers. Given the necessary pressures of time recording and billing, our training has to be highly relevant in order to justify that time away from desks.

Q A

How has the method of delivery and content of training changed to suit the modern workforce?

We believe immersion in experiential exercises is key and that this style of training is a far better learning model than the old chalk and talk, not just in terms of the ability to retain and recall the knowledge you gain on a course but also in terms of practical application at the point of need afterwards. You don’t just read a book about how to swim and then jump in and compete in the deep end, and the same applies to developing essential skills.

June 2017

Law is a people business and a law firm’s biggest resource is its legal team This method of interactive learning also helps individuals gain a much better understanding of themselves and knowing your strengths (and weaknesses) is fundamental to skills development.

Q A

Has the removal of mandatory CPD affected the demand for and availability of skills development in the legal sector?

Truthfully, not as yet. Although we do expect to see a huge rise in demand for skills training because lawyers are going to spend more time identifying their own personal development needs in line with the SRA competence statement. Many are still coming to terms with the changes and grappling with the idea that you can no longer just rely on a box-ticking sixteen hours of CPD. We haven’t necessarily seen its true impact yet. This new regime is putting the burden on the individual and the law firms to ensure that lawyers are not only competent in the context of their practice area but also have a wide range of skills that are commensurate with their level of qualification. The profession is adjusting to the modern role of a lawyer and an honest analysis of needs will inevitably result in taking up more skills courses.

Q A

How can law firms foster and develop a company culture that promotes and embraces skills development?

It is all part of encouraging a growth mind-set where lawyers of all levels are comfortable with admitting that they are constantly learning and that learning is not always a linear process. Sometimes a setback can teach you more than a success. We have seen firms mixing skills training with business development by inviting their clients to join them on experiential skills courses for their staff and lawyers. Integrating clients into their learning process brings insight and generates a special connection and loyalty. Most of the firms we work with are highly evolved and extremely aware of the need for skills development in their lawyers and the immeasurable benefits that it brings. Law is a people business and a law firm’s biggest resource is its legal team.

Alisa Gray is Business Development Director at Kaplan Altior.

Modern Law 59


CASE STUDIES

Are you considering future developments for homebuyers? ouse prices can be influenced by a variety of factors. For example, the location, size or build of a property can all have an obvious impact. However, hidden factors can also significantly affect a property’s value and one of those is the future developments opportunity.

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At the beginning of this year the UK Government announced ambitious plans to build more homes to fix a ‘broken housing market’. Other measures include opening up more land for development, piloting public sector land auctions, streamlining planning applications with a fast track for major infrastructure projects and offering first time buyers an equity investment towards the deposit on new build homes. These measures, together with the Localism Bill that extends to a community right to build across England rather than just in rural areas, and the New Homes Bonus that offers cash to councils that allow new homes to be built in their area, demonstrate the Government’s determination to respond to the chronic national housing shortage, and to encourage property development. Development is increasingly likely to result in future planning applications, which could have a substantial impact on your client’s current or prospective property. To uncover development risk and provide your clients with a full picture of the investment they are making, Searches UK recommend DevAssess, just one of the valuable reports provided by DevAssist for property purchases.

This advanced search combines existing planning data with a detailed investigation that reveals unexploited development sites. It informs homebuyers of potential construction activity and nuisance planning applications that could influence the benefits of the property. View restrictions or loss of privacy are not just inconvenient, but can also significantly reduce the value of some properties. Key Features: • Unique, professional opinion about future development risks within a 75m radius of the property and any development potential of your client’s intended property • Site specific mapping showing any identified site, together with density predictions • Information about the size of each identified site, together with density predictions • Includes a full PlansearchPlus report, providing information about current commercial and residential planning applications (including larger and ‘minor applications’ such as single storey extensions and dormer windows within the immediate vicinity), together with information on land use designations, rights of way, mobile phone masts, housing and neighbourhood data, together with crime, amenities and education information • Aerial photography • Available nationwide For more information about any of the products and services from Searches UK visit their website and follow them on Facebook, Twitter, LinkedIn or Google+. Alternatively call them directly on 0800 043 1815 or email them at info@searchesuk.co.uk to speak to one of their dedicated team today.

Legal training that works for you Learning and professional development is important to us and we are focused on delivering a first class service to our clients. We offer a range of public, in-house and bespoke training programmes that provide you with the ideal solution to your training needs whilst also helping to meet the SRA competencies. Get in touch to see how Kaplan Altior can support your unique business training requirements.

Call 029 2045 1000 Email altior@kaplan.co.uk www.altior.co.uk


CASE STUDIES

Eclipse’s Proclaim Practice Management Software solution rolled out in 6-figure deal at Walker Foster Solicitors clipse Legal Systems, the Law Society’s sole endorsed legal software provider, today announced the implementation of its Proclaim Practice Management Software solution at Walker Foster Solicitors.

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The practice operates from offices across West Yorkshire, North Yorkshire Darren Gower and Lancashire, and prides itself on its reputation as a leading, local firm of expert solicitors. With an objective to provide clients with high quality and value-for-money legal services, fee earners strive to achieve pragmatic solutions to all client requirements. In a 6-figure deal, the Proclaim Practice Management Software solution is being rolled out to 50 staff across the Conveyancing and Probate departments. Proclaim will provide fee earners with a centralised and consistent approach to case management from instruction through to completion - whilst the accounting toolset will provide a detailed analysis of the firm’s operations. Furthermore, Eclipse’s Credit Control Centre will provide the

practice with a central dashboard display of key financial and payment information, with the ability to drill directly into bills, clients and matters. In addition, Walker Foster has opted for Eclipse’s legal Compliance toolset. Fully integrated within Proclaim, users will have access to a number of tools - including a Risk Register, a configurable reporting system and a Compliance Library - to assist with the extensive obligations required by the SRA. Keith Hardington, Managing Partner at Walker Foster Solicitors, comments: “As an established and respected practice, we chose Eclipse’s Proclaim system to meet our demands for a reliable and robust legal software solution that would scale with us as we grow. The integrated tools Eclipse offers to manage elements such as compliance further cemented our decision, and the overall solution will ensure we manage all elements of matter management efficiently and effectively on a day-to-day basis.” For further information, please contact Darren Gower, Marketing Director at Eclipse Legal Systems, part of Capita plc, via darren.gower@eclipselegal. co.uk or call 01274 704100. Alternatively, visit www.eclipselegal.co.uk

Landmark launches residential flood portfolio to support conveyancers and homebuyers in the digital age andmark Information, the environment, land and property data specialists, has launched an updated portfolio of flood due-diligence reports and assessments, which provide legal conveyancers and homebuyers with complete flood risk analysis for all residential transactions. The portfolio includes the updated Homecheck Flood report, which is the only report of its kind to automatically include a manual risk assessment from a specialist environmental consultant should significant flood risk be identified within close proximity of the property. This means that far more reports will be passed first time as any ‘risky’ sites will be manually assessed by Landmark’s in-house team of environmental consultants.   Homecheck Flood is also the first flood report of its kind to provide access to an online portal that displays risks on an interactive digital map. Plus, another unique feature is that property height (in relation to flood risk) is included within the automated risk model, resulting in fewer ‘false positives’ and a more accurate assessment of genuine risk.   In addition, a new FloodSolutions Consult report provides a clear summary of the risks, including impact analysis, details of what the flood risk is, the depth of flood waters and site-specific recommendations.  

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June 2017

Angela Gordon-Lennox, Senior Product Manager (Legal) at Landmark Information said: “Combining our experience in residential reporting, with our in-house data and flood risk expertise means our market-leading residential flood reports offer complete risk analysis for each and every transaction. Our portfolio consists of flood screening as the starting point and extends up to a full Flood Risk Assessment, plus everything in between, enabling full and thorough due diligence for conveyancers and peace-ofmind to homebuyers.” Endorsed by the Know Your Flood Risk campaign, the Homecheck Flood report is delivered in an easy-to-read PDF report, providing clear guidance to homebuyers relating to a property’s risk of a range of flood types, including coastal, river, surface water and groundwater flooding. The free online portal enables conveyancers to provide clients with a modern, digital conveyancing service where report findings are clearly presented on an interactive map. For more information visit www.landmark.co.uk/landmark-legal, telephone 0844 844 9966 or follow the team on Twitter.

Modern Law 61


10 MINUTES WITH

Robert Camp Q A

Did you expect the legal services sector to change so drastically when you started working in it?

Not at all. In fact, the sector has changed so much just over the last five years that it is hard to remember what it was like when I started out. The main change has been the speed of communication. Yes, it will sound alien to a lot of people reading this, but there was a time not long ago without e-mail and when I first started out you had exchange of contract meetings! There have been many other changes, for example the move to open plan working and now flexible/agile working, which has had a major influence on the way law firms now operate. Owners and managers of law firms have also had to become much more commercial in the way we run our businesses. No longer can we expect the work to come to us. We need to get to know our clients and markets, what is keeping them awake at night, how they wish to communicate and be far more proactive than we used to be. If we do not do this, someone else will. Also, successful law firms have had to become much more financially aware, constantly monitoring work in progress, recovery rates and, most importantly, cash.

Q A

What has been the key positive or negative impact of the liberalisation of legal services?

The key positive has been that innovative and progressive firms have been able to embrace new structures, new ways of working and new ways of engaging with our clients. An example being our MyLawyer app, which allows our clients to have access to information about their matters anytime, anywhere through their iPhone. The downside has been the constant noise that more competition means cheaper prices, which has led, in some instances, to quality and service delivery slipping, which, in turn, gives a negative impression of the sector. For forward-thinking firms who are willing to embrace change, invest for the future and create real and lasting engagement with their clients and staff, there are many exciting opportunities out there, from leveraging existing knowledge and delivery through IT and systems, different and new ways of engaging with clients, through to creating a culture that not only brings loyalty from existing members of staff, but also appeals to the next generation of lawyers.

Q

Who inspires you and why?

We need to get to know our clients and markets, what is keeping them awake at night, how they wish to communicate and be far more proactive than we used to be

A

For the big picture - Nelson Mandela. Who cannot be inspired by him and what he achieved?

More down to earth – anyone who is passionate about bringing change to their local community. In business we often miss fantastic opportunities and ideas because of our top down structure. Firms that learn how to capture the great ideas and knowledge of all members of staff will have a market edge over its competitors. Here at Stephens Scown we have tried to do this with our employee shared ownership scheme – or “Scownership” as we call it. This gives all eligible members of staff at the firm an equal share in our profits, regardless of their role or seniority. We are the first large law firm to introduce employee ownership and it wasn’t easy. However, I felt strongly that it would be the best way to show how everyone who works here is valued for the contribution they make.

Q A

Have you had a mentor? If so, what was the most valuable piece of advice they gave you?

No, but one of the first things that I did when taking over as Managing Partner at Stephens Scown was to appoint two Non Executive Directors, and I meet with one of them every month. The most valuable piece of advice has been to be true to myself and to keep going when things get difficult. If you want to create a law firm for the future, you need to inspire those who work for you. People want to know who you are, why you are doing something and will watch to see that you “walk the talk”. We can no longer just dictate; we have to engage with all levels of the business.

Q A

If you were not in your current position, what would you be doing?

Something involving getting the best out of people.

Robert Camp is the Managing Partner at Stephens Scown LLP.

SAVE THE DATE Eclipse Proclaim Modern Law Awards Thursday 18th January 2018 Nominations Close Friday 15th September 2017

The Lancaster Hotel, London CONTACT Event enquiries | ellie.campbell@charltongrant.co.uk | 01765 600909 Sponsorship enquiries | kate@charltongrant.co.uk | 01765 600909 62 Modern Law

June 2017


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Modern Law Magazine - Issue 30  

Modern Law focuses on the future of education and recruitment in the legal sector, analysing the impact of the SRA's Solicitors Qualifying E...

Modern Law Magazine - Issue 30  

Modern Law focuses on the future of education and recruitment in the legal sector, analysing the impact of the SRA's Solicitors Qualifying E...