Understand Your Rights. Solve Your Legal Problems
Suicide is the second common cause of death in jails and prisons. The suicide rate, number of suicides per 100,000 inmates, is substantially higher among prisoners compared to general population, with the rate in jails far exceeding the prison rates.
Anasseril E. Daniel shares: “As the mandatory medical and mental health treatment have become common place, the rate of suicide has been on the decline during the last two decades or so.”
Anasseril, a forensic psychiatrist and expert in wrongful deaths and suicide in prisons, discusses more about the issues surrounding malpractice and indifference claims, why it is so commonplace and subsequent litigation which follows such unfortunate cases.
Firstly, can you briefly summarise the most common causes of litigation in correctional institutions.
The most common cause of litigation in correctional settings is the suicide of a detainee or an inmate. Two types of claims are common: 1] malpractice, mostly against healthcare providers, which is often litigated in state courts and 2] 1983 civil rights violation claims which are litigated in Federal Courts. Sometimes, both types of claims can be made simultaneously.
More often than not, inmates who are vulnerable to suicide present known obvious and substantial risk factors for suicide. Failure to assess such risk or take action would be the basis of liability.
What process do you undergo when first instructed on a case? Can you share with Lawyer Monthly your step by step process?
The process depends on whether the litigation is about malpractice and or deliberate indifference claim.
In a malpractice claim, the analysis focusses on whether a health care provider deviated from the standard of care and such negligence had any nexus to the injury or death of the inmate.
Analysis of a deliberate indifference claim is a more complicated process. This may involve a review of the administrative structure, staff organisation, contracts with the providers, policies, and procedures concerning access to medical and mental health care, suicide prevention and monitoring of care and staff training and any other aspect of care. The goal is to determine whether the correctional organisation and the staff, having known the serious medical and mental health needs of an inmate deliberately disregarded such needs, which caused or contributed to the injury or death.
In my experience, a significant number of lawsuits are settled after the discovery and depositions are completed.
Court cases have found that deliberate indifference can be supported when an official knows of a prisoner’s need for medical [or mental health] treatment and intentionally: a) refuses to provide it; b) delays medical treatment based on a non-medical reason; or c) prevents a prisoner from receiving needed or recommended treatment [Innis v. Wilson 334 F. App’x 454, 456 [3RD CIRCUIT 2009]
Failure to assess an inmate’s vulnerability to suicide is a critical factor. More often than not, inmates who are vulnerable to suicide present known obvious and substantial risk factors for suicide. Failure to assess such risk or take action would be the basis of liability. Sometimes, a provider would discontinue the appropriate level of care prematurely, without proper risk assessment, which can be basis of a deliberte indifference claim.
Recently, a Federal Judge opined that in §1983 claims the court consider “a patient’s history of suicidal propensities, decedent’s diagnosis upon detention, suicide rating, and mental health status in determining whether a prison official has acted with deliberate indifference [ Judge Joy Flowers Conti, Western District of Pennsylvania, September 2018]. The court further stated that “while the prison official cannot guarantee that the prisoners will not commit suicide, officials are nevertheless obligated by the fourteenth amendment [to] not act with reckless indifference to an inmate’s vulnerability[,] if that vulnerability is known or should be known by the official.”
Prison officials should make sure that a comprehensive suicide prevention policy and procedure is developed and implemented. Implementation of the policy and procedure is critical.
The expert consultant analyses, not only the specific aspects of care provided to a decedent, but also the overall structure and organisation to determine whether reasonable care was provided to inmates to support or refute such a claim. Upon completing the analysis and review, a well-reasoned and thorough report outlining the expert opinions is prepared and made available to the attorneys. After the report, the consultant may be asked to provide a deposition or present testimony during the trial. In my experience, a significant number of lawsuits are settled after the discovery and depositions are completed.
Regarding suicide in jails: what should prison officials be aware of? In your opinion, what can be done to reduce such cases?
Suicide prevention in a prison is a collaborative responsibility of administrative, medical, mental health and custodial staff. While not all suicides can be prevented, a high degree of suspicion of the potential for suicide by inmates is essential.
Prison officials should make sure that a comprehensive suicide prevention policy and procedure is developed and implemented. Implementation of the policy and procedure is critical. Officials should make sure that not only adequate staff are available for identification, assessment and intervention of all potential suicidal inmates, but also provide the necessary tools to identify and monitor suicidal inmates.
For instance, a suicide screening instrument which queries the common risk factors of suicide at the time of booking should be mandatory. Training of all staff about suicide prevention policy and procedure should be done on a regular basis. Adequate resources to hire mental health staff, particularly psychiatrists, should be made available.
Because the most common method of suicide in jails and prisons is hanging, prison administration should make every effort to eliminate all possible anchors from inmate cells and make them suicide resistant. World Health Organization’s Update of the Resource Guide For Prevention of suicide in Jails and Prisons [2007], of which I am one of the authors, have outlined what the stakeholders could do to minimise the incidence of suicide and suicide attempts.
From a litigation stand point, the emphasis should be to determine what actions and inactions by the prison officials and the health care providers were causatively related to the death of the inmate.
How complicated can these cases get? What do you do when trying to determine the cause of death?
The cause of death of a decedent is generally known, which is usually suicide by hanging. The second most cause of death is drug overdose, mostly by prescription medications.
From a litigation stand point, the emphasis should be to determine what actions and inactions by the prison officials and the health care providers were causatively related to the death of the inmate. The question is: did the prison officials know or should have known the inmate’s vulnerability, and whether reasonable steps, administratively and clinically were taken to prevent the inmate from injuring himself/herself.
In my experience, one of the common failures by the clinical staff is not to adequately consider an inmate’s history of suicide attempt, the single most predictor of future suicide and the impact of dual diagnosis of mental disorders and substance abuse.
Determination of these elements is sometimes difficult due to the problems inherently associated with the setting, because the primary goal of jails and prisons are custody, safety and security of the inmates, not to mention the other goals such as deterrence, retribution and rehabilitation.
Analysis of the causation of death can become very complicated by lack of evidence of communication between clinical and custodial staff and failure by the clinical staff to perform suicide risk assessment and inadequate documentation of custodial supervision and clinical monitoring, although modern technology makes the communication easier.
In my experience, one of the common failures by the clinical staff is not to adequately consider an inmate’s history of suicide attempt, the single most predictor of future suicide and the impact of dual diagnosis of mental disorders and substance abuse.
The internal investigation report or post incident analysis by the jail personnel may provide additional information on causation. The expert consultant reviews every piece of data to arrive at reasonable conclusions which can be supported during deposition or trial testimony.
The Supreme Court and the Federal Courts have laid the legal foundation for appropriate and reasonable medical and mental health care.
Do you think any regulatory changes need to be made to ensure full justice is served post wrongful deaths?
I do not think any regulatory changes are needed now to ensure full justice is served post wrongful death. The Supreme Court and the Federal Courts have laid the legal foundation for appropriate and reasonable medical and mental health care. The National Council of Correctional Health care [NCCHC], American Psychiatric Association, American Psychological Association and American Correctional Association have all set the standards and guidelines for prevention of suicide and wrongful death in jails and prisons.
"I am a forensic psychiatrist with experience and expertise in correctional health care administration and clinical practice. My area of expertise is suicide, and wrongful death in jails and prisons. By research and analysis of risk factors of suicide by detainees and inmates, and developing prevention strategies, I had established considerable expertise in the field. As a consultant, I provide expert opinions and if appropriate medial opinion testimony on matters in dispute such as standard of care, deliberate indifference, and civil rights violations.. I have consulted on at least 45 cases under litigation in the United States and testified in at least 15 cases."
Law firms are having to work much harder to stand out – not only in the eyes of consumers, but also when it comes to attracting and retaining talent. After years of stagnation, acquisitions and mergers are back on the cards, as firms look to expand their portfolio of service. Consumers are shopping for legal services differently – they expect more, and much of the responsibility for addressing this lies at the doors of marketers.
What does the contraction of the legal market means?
Whilst the legal market has contracted overall, there has been significant growth from London law firms outside the top 100 and large regionals whose mainstay of legal work across private client and commercial work has continued to grow. Firms turning over £10-20m have seen an average of 9% growth in turnover this year.
With the request for ever growing transparency in how the sector charges, fixed fees are becoming standard.
Individuals and businesses of all sizes, C-suite professionals, entrepreneurs and in-house legal teams, still want great legal advice, but they are shopping around to find the services they need, sometime from more than one provider. The result has seen a number of law firms look at alternative ways of driving revenue.
Cost is a key factor behind the strategic approach of a number of law firms. With the request for ever growing transparency in how the sector charges, fixed fees are becoming standard. There are still a number of specialist boutique firms out there who will avoid going down this route – for now – but for all who operate in the more consumable legal services, it’s becoming unavoidable.
Law firm structures – how varying this can help pave the way to success
I can’t see the downside of adopting a working model that allows a law firm the freedom to run like a sole trader, limited company, LLP or corporate
The structures of law firms have been a topic of discussion for a while now, and a number of years ago we saw the arrival of Alternative Business Structures (ABS) (2007). The vast majority of law firms continue to work under the traditional model, but those who have changed their mindset and adopted a different way of investing, structuring and managing their business, are seeing the results. National firm Irwin Mitchell (21) and Magic Circle multinational DLA Piper (1) are amongst the biggest names to adopt an alternative structure and have been very public about the success this has brought them.
Whilst there are progressive law firms out there operating under the traditional partnership model, I can’t see the downside of adopting a working model that allows a law firm the freedom to run like a sole trader, limited company, LLP or corporate, and by so doing, adopt a far more commercial minded mentality. It can only pave the way to better business ideas, ways of delivering legal services, and marketing them.
Outside the Magic Circle, law firms who keep with the traditional model will likely find themselves being overtaken by far more dynamic and success-led ways of investing and working. Nowadays, successful firms are those that flip the status quo of equity partner first, before firm and client. It should be all about the client, like the model for every other market.
The legal profession is inheriting the impact of the changes adopted by B2C consumer brands to create better ways their clients can experience their brands, products and services.
What is influencing the changes in law firms?
The market is extremely competitive and law firms need to step up to the challenge in order to make an impact. As a result, it’s important for marketers to explore how this can be done. Technology is starting to play a major part in this, as law firms look to analyse the way they work, streamline process, reduce fees, change the way they charge and deliver a more accessible service to the consumer.
The legal profession is inheriting the impact of the changes adopted by B2C consumer brands to create better ways their clients can experience their brands, products and services. This is particularly true for Millennials. Driven by demand, firms and new entrants are exploring Blockchain AI, and online commoditised legal service solutions.
I don’t believe there is any doubt that technology will become an integral part of the operating infrastructure and service gateway for legal services. Especially for higher volume, lower value legal services. The early adopters have embraced these as part of their business models, however the use of this technology is still some way off providing a valued alternative to the traditional face-to-face service for the majority of business or private client legal services.
Law firms should never lose sight of this. A brand is an experience, and experiences make up your brand. Whilst technology is no doubt helpful in streamlining and speeding up the process, it should focus on being utilised where relevant, and only to improve the client experience. For example, services that need the personal touch, or when empathy or a listening ear is called for, technology can be a million miles off replicating how valuable sitting in front of someone is.
It’s about getting smart. A story that is less about the legal service, and more about the benefits of working with the law firm and one that addresses their wants, needs and fears.
Looking to the future
Whether you’re a magic circle, top 100 or regional law firm, the competition remains fierce.
Enterprise level companies, and larger SMEs have been forced through financial restraints, to look at saving money by using smaller firms. Big panel contracts are being reduced and broken up, meaning law firms are having to wake up to a new way of working.
Individuals are also changing the way they buy legal services. In the past law firms could rely on 80%+ of their revenue coming in from repeat business; but now in a world of over 30 billion connected devices, legal consumers are very comfortable shopping around, especially if they don’t feel they are getting true value for the legal services they’ve purchased in the past.
The challenge that faces marketeers is how to stand out from the crowd on multiple fronts. It’s about getting smart. Building a brand story that is unique, relevant and compelling to clients, prospects and new talent, and bringing it alive at every stage of their journey. A story that is less about the legal service, and more about the benefits of working with the law firm and one that addresses their wants, needs and fears.
Whilst functional requirements like price and delivery must be met, addressing a client’s emotional concerns will bring your audience closer to your legal brand. Make them less anxious and in turn more confident. You’ll then be seen as a partner, and an ally in their legal struggle.
Bigdog is an award-winning marketing communication agency. As a law firm you get the best of both worlds - 20 years of experience working with some of the UKs leading consumer brands. And 20 years’ experience working with magic circle, top 100 and large regionals.
At bigdog we know the importance of finding the right agency. An agency that has all the specialist legal experience you demand. But you also want one that can deliver creativity your clients can’t ignore. One that understands that more clients and better talent equates to a better bottom line.
A new step for Lutech Group that they successfully completed the acquisition of the majority of the share capital of CST Tech Srl, a company operating in services and IT solutions for the financial services market since 1990. The group thus increases the its staff, made up of over 1600 people working on 12 companies.
Italian leader in solutions for fulfilment and regulatory requirements, CST Tech specialises in the financial, banking and insurance sectors.
"CST enriches the group's offer in the Financial Services area", says Tullio Pirovano, CEO Lutech Group, which already has a wide range of products and expertise to effectively face the challenge of digitising banking, financial and insurance systems.
CST contributes to this objective thanks to the considerable specialisation of its products in relation to regulatory and tax compliance. A strategic step that brings in our group a wealth of knowledge and skills represented by CST professionals to whom I welcome in the name of the whole Lutech group."
Interview with Marco Abramo Lanza at Studio Legale e Tributario Biscozzi Nobili
Please tell me about your involvement in the deal?
We, as Biscozzi Nobili were involved with the sellers in the first phase of negotiation with the Buyer's representatives to establish terms and conditions of the transaction. In addition, we took care of the all the process of vendors, accounting and tax due diligence.
Finally, since the buyer requested the vendor to include some preliminary reorganisation (carve out and amalgamation), we had advised the Company to this extent.
Why is this a good deal for all involved?
It is a good deal businesswise, since it enforces a strong integration between a luxury boutique in the IT world (like ICTEAM), with an innovative company like LUTECH supported by international investors.
What challenges arose for you and your team? How did you come up with new solutions to work around them?
The challenges are connected with the direct involvement of each seller as requested by LUTECH, thus the transaction involved more sellers than vendors. Solutions arose, as always, by mixing refined technique via the professionals who remain humble and carefully listen to their client's needs.
Every person facing divorce has something in common. A journey. A journey chosen by them or chosen for them. Stuart K. Skok, Owner and Principal of Stuart Skok Law LLC, a matrimonial and family law firm in Maryland, shares: “People think that they have little control over the divorce process. This is not true. Everything you do and don’t do in your divorce impacts the divorce results and your future life framed by those results. And those who are willing to focus on releasing the past, appreciating the present and visualizing a future that serves the top priorities of all involved invariably look back and appreciate the divorce journey that lead to their new and better life.”
Stuart shares more below on HNWI divorce, pre and post nuptials and the dissipation of marital assets.
When representing high net worth individuals, would you recommend a prenuptial agreement prior to marriage?
Where there are children from a previous marriage and/or the engaged couple has disproportionate assets and income, I recommend a prenuptial agreement prior to marriage, or, if time does not permit, a post-nuptial agreement after the marriage. These agreements help the couple have those critical conversations, necessary in all marriages, about their money and future.
A prenuptial or post-nuptial agreement allows for smart planning and concrete expectations that can avoid disputes down the road between the couple and their extended blended family.
The main focus for prenuptial agreements is not the possible dissolution of the marriage, but rather how to plan for the couple’s lives ahead, and their respective children through retirement, death, medical disability or divorce. There are important tax and estate planning considerations for high net worth individuals that need to be planned for in advance to guard against unintended tax consequences.
A prenuptial or post-nuptial agreement allows for smart planning and concrete expectations that can avoid disputes down the road between the couple and their extended blended family. Avoiding the discussion about money does not avoid future problems about money.
Furthermore, if a prenuptial was not signed, what should be a HNWI’s first line of action?
It depends on where the marriage stands. It is never too late to negotiate a post-nuptial agreement, which carries the same purpose and legal effect of a prenuptial agreement. Those spouses who do not wish to negotiate an agreement that addresses divorce, can alternatively engage an estate planning lawyer jointly to work out how the estate will be handled. This, at a minimum, allows for a smart and efficient probate of the estate, with minimised taxes, and management of the assets to divide or maintain after death among family members and business partners.
The advantage of keeping high conflict cases out of court, where possible, is that the lawyers and other professionals involved can come up with creative solutions, detailed to the specific needs of the family and any complex assets, which the court may not have the ability or legal jurisdiction to handle.
How complex can divorce cases get? Can you provide some cases you have dealt with and how you overcame the complexities?
Divorce cases are as complex as the parties make them. The goal in every case is to minimise the conflict, particularly for any children, and to reach a balanced settlement that serves the top priorities of all involved. But when that does not happen, a team approach can flesh out the information needed and bring creative solutions.
For example, when there are disputes about what is best for a child, a best interest attorney who can give a voice to the child, may give that perspective not yet heard or understood. That perspective can in turn create solutions that work for all involved.
Likewise, the right expert can resolve disputes over property value, methods for division and income allocation. The advantage of keeping high conflict cases out of court, where possible, is that the lawyers and other professionals involved can come up with creative solutions, detailed to the specific needs of the family and any complex assets, which the court may not have the ability or legal jurisdiction to handle.
The burden is on the spouse asserting dissipation to prove what funds were spent without consent, which can sometimes require hiring an expert to trace the funds.
Moreover, how do you tackle cases involving the dissipation of marital assets? What should clients be aware of?
Handling the sensitive issue of dissipation, whether one spouse has wasted marital assets, starts with understanding the standard applied by the court and the relief that can be afforded. A court will only find assets are dissipated if the assets were disposed of without consent by the spouse claiming dissipation, and were disposed of for purposes that are not legitimate family purposes, which includes: day to day expenses, business expenses to produce income, and even legal fees. It often comes down to the legitimacy of the expenditure and the circumstances in the marriage around that time.
The burden is on the spouse asserting dissipation to prove what funds were spent without consent, which can sometimes require hiring an expert to trace the funds. If the court finds dissipation, the court can award the other spouse a monetary award from the marital estate to adjust for that inequity at the time of the final divorce.
Stuart K. Skok, is the Owner and Principal of Stuart Skok Law LLC, a matrimonial and family law firm in Maryland, serving Montgomery and Frederick Counties.
As an experienced Matrimonial and Family Law lawyer for over 20 years, her practice is devoted to separation, divorce, custody and other family law matters, in and out of court, at the lower court level and on appeal. She also handles post-divorce modification and contempt, domestic violence proceedings, prenuptial and separation agreements. She is certified in Collaborative Law, where parties agree to resolve their family law disputes out of court in a private team-approached process. She is also certified in Divorce Mediation, where she is appointed by the Court or hired by parties to mediate their family law dispute
Criminal law is no easy path. Often needing thick skin, to be street smart and work long, tiring hours, criminal law is no longer as appealing to young lawyers, according to Mark Dooley, Partner and Section Head of the Criminal Department at Oxley and Coward Solicitors LLP. He gives inside information on what it is like being a criminal lawyer, and why there is a decline in criminal lawyers.
As an expert in criminal defence, can you share any aspects of the law which can cause frustrations, either with legal experts or with your clients?
This has to be the constant undervaluing of our entire criminal justice system.
The last few years have seen even further cuts to legal aid fees and the closure of many local courts. Local justice is becoming a thing of the past. There is a real shortage of criminal defence lawyers at the moment. I qualified five years ago and I do not know of anyone else qualifying after I did in my local area. In another 10 to 15 years, this will become a real problem. It is down to constant slashing of legal aid fees and the fact that remuneration in this field is not what it once was as a result. Graduates no longer see this area as a good career prospect and that is a real shame and a big concern for our criminal justice system, which is held out to be one of the best in the world.
From your experience, what do you think is the most challenging part of being a police station representative? How do you prepare yourself for such a role?
The police station stage of a case is crucial. This can often be where a case is won or lost. For me, the biggest challenge we representatives face is being expected to advise suspects at any time of day or night, on often complex and serious matters and often in anti social hours having already completed a full working day or week. It can be daunting when you start out, especially at 3am when the rest of the world is asleep, and your client is upset and distressed after already being held for a number of hours. Despite this, you need to obtain instruction and advise clearly and rationally in a way they will understand and appreciate.
The biggest lesson I have learnt to date is that in this job, you never stop learning.
There is nothing that can prepare you for being a representative at the station other than experience itself. You have to have the mindset that being a defence solicitor, this is all part and parcel of the job. It requires patience, dedication and above all else you must trust in your own ability and training.
From finishing law school up until now, what has been the biggest lesson you have learnt, in relation to working in criminal law?
The biggest lesson I have learnt to date is that in this job, you never stop learning. You do not simply qualify and become a great lawyer. Advocacy is a skill that you develop over time. The law changes often. Each case is different to the last in some unique way. Your people skills and negotiation skills increase with time and experience.
With most areas of law, the day you qualify is often of little difference to your last day as a trainee. That cannot be said of criminal defence lawyers. The day you qualify is the first time you will appear in court yourself, which is a huge learning curve.
There are some incredible advocates in my local Courts and over the years I have tried to observe them on their feet whenever possible. The day when you think you know everything in this job is probably the day you should pack in and go home.
"I am a Partner and Section Head of the Criminal Department at Oxley and Coward Solicitors LLP. I joined the firm in 2009 and trained with the firm before qualifying as a solicitor in 2013. I am a duty solicitor and Higher Court Advocate. I undertake both legal aid and privately paid work. I am also a prison law specialist."
Oxley and Coward Solicitors LLP is a multi disciplinary High Street firm based in Rotherham, South Yorkshire. The firm has just celebrated its 225th anniversary. It has a young and vibrant partnership with six of its eight partners being homegrown.
Tullio Capasso gives a brief introduction into employment discrimination disputes, especially those involving skilled immigrants.
As a specialist dealing with a wide variety of employment discrimination disputes, would you say that there are any sectors that are more susceptible to such disputes?
I would say that any sector that indicates that race, ethnicity, religion, age or gender play a role in the requirements for a role, lends itself susceptible to greater claims of discrimination.
Do employment discriminatory disputes undergo a different process when involving a skilled immigrant? If not, have you noticed any differences in such cases?
Generally, we don’t see many differences in discrimination cases when a skilled immigrant is involved, however, the fact that one is also an immigrant can add a potential claim to a plaintiff’s complaint if there is sufficient evidence to suggest that the individual was also discriminated against due to an immutable characteristic or immigration status. However, it is important to note that some discrimination is allowable in certain circumstances based upon an individual’s immigration status.
What other significant changes might we see in the employment law spectrum in your state and in the US in general?
In our opinion, in Massachusetts, as well as in some other states, many will most likely see an increase in legislation protecting against discrimination based upon sexual orientation, gender identity, and sex change.
What are common immigration disputes you deal with and how, in your opinion, can these disputes be avoided?
Our biggest immigration related disputes are with the US Department of Homeland Security (DHS) and are based on whether a particular job requires a degree in a particular field or related field. Additionally, we also have had a significant number of disputes with DHS as to whether a job requires an individual that possesses special knowledge of a company’s proprietary or unique tools or methodologies, etc. These disputes cannot be avoided under current policy, however, using a holistic approach to respond to DHS questioning is often helpful.
How does experience with the United States Department of Justice enable you to be ahead of the game?
My experience with the US Department of Justice as well as the legacy US Immigration and Naturalization Service and the American Federal of Government Employees provided me with knowledge of government procedures that most practitioners simply do not possess.
"My name is Tullio Capasso and I am the founder of Capasso Law Group, an award-winning law firm specialising in immigration and employment issues. I previously assisted large international law firms as well as the US Department of Justice, the legacy Immigration and Naturalization Service, the American Federation of Government Employees, and the United States Postal Service. I was also previously a certified educator."
Andrew Reid introduces a new perspective of how social justice can truly be achieved with gaining the right outcomes in civil litigation. He is a child of the ‘60s, with roots in the counter-culture and social change that guide his practice today: as a legal warrior over the past 40 years, Andy has taken up the struggles of Native peoples and nations for liberation from colonial rule and exploitation; campaigned to protect the environment and the rights of nature and Mother Earth; stood with the Native, peace, environmental and spiritual communities against the military and weapons of mass destruction; pursued damages for many victims of police and prison abuse, and, among many other matters of great social impact, fought to give a progressive voice to mass gatherings of US citizens.
As you can gather from the impressive introduction, the following interview offers insights into the importance of civil law, and how Andy wishes to witness US law shift in the upcoming years.
Why is being an attorney specialising in civil litigation so important to you? You have been practising for over 40 years; can you expand on how you go about serving those who have been subjected to negligence?
I’ve handled quite a few criminal appeals, but find that civil litigation provides a better opportunity to accomplish social justice. Criminal law generally benefits specific individuals who may have themselves engaged in injury to the public, victims of crimes who often are overlooked by social activists when campaigning for those who are abused by the American system of criminal justice.
Ultimately, corporations and governmental agencies and others that adopt ethical and socially and environmentally beneficial approaches, will discover that the long-term financial benefits outweigh the short-term financial rewards.
With civil law, a litigator is more in control of the issues, the parties, and the dialogue, so that it can be more effective in producing a broader and more focused result and have a greater social impact, while still providing the successful litigator with the financial reward necessary to sustain and continue the work.
For example, bringing toxic tort litigation against industries and corporations engaged in activities that harm or put at risk large sectors of the public, often has much more impact on discouraging such future harmful activity due to the hit on corporate profits, than government regulation, because the regulation and enforcement is often under the indirect control - or even direct control - of those very corporations and industries subject to regulation. Suing bad cops or jailers who injure those who come in contact with the criminal justice system for damages, is more likely to result in fundamental policy changes than political pressure, because large damage awards significantly affect the budgets of law enforcement and corrections agencies. Going after doctors, lawyers, and others for damages from their professional negligence or discrimination leads to the provision of better and more ethical services to the public.
Ultimately, corporations and governmental agencies and others that adopt ethical and socially and environmentally beneficial approaches, will discover that the long-term financial benefits outweigh the short-term financial rewards.
In the 1980s, you sued the United States over nuclear proliferation and won; can you share the challenges you overcame for this case? How did this change the way in which you handled your future cases?
Civil litigation can lead to dramatic social changes. In the 1980s for example, the United States had plans to deploy the MX nuclear weapons system having some 1000 times the destructive power of the bomb that destroyed Hiroshima, Japan.
A very broad coalition of peace, anti-nuclear, Native, farm and ranch, environmental, and religious leaders and organisations successfully challenged the deployment and obtained an order stopping the deployment, a first within the peace movement.
In a precedent-setting decision, the appellate court held that President Reagan and the military could not hide behind arguments of national security and classified records to avoid compliance with environmental laws. One of the claims we raised then was a precursor to the current litigation over the impacts of climate change, the responsibility for the destruction of the earth itself.
I find that law is built upon a spirit of justice and fairness that I use to guide all of my work and as a source of support when its seems the dynamics of power, legislation, and court rulings offer little else.
Moreover, what do you think is the key behind winning a case?
From my experience, the key to winning a high-profile case lies first in the merits and righteousness of your client’s claims, one’s own honesty and fairness, fearlessness, creative thought (I’ve found there’s almost always a way around a legal barrier), knowing the other side, and tenacity (commitment and hard work).
As I do not possess a particularly flamboyant personality or oratory skills, I have to make up for it in other ways. Although I am well aware that our legal system often neglects the poor, unpopular, and people of colour, I find that law is built upon a spirit of justice and fairness that I use to guide all of my work and as a source of support when its seems the dynamics of power, legislation, and court rulings offer little else.
The United States may assert its “exceptionalism” in the face of it being an outlier in its refusal to sign or implement various human rights treaties, but it still reacts to global humiliation for its conduct.
As a member of the US Human Rights Network, what regulations do you think your jurisdiction needs to address, for the betterment of society?
Domestic law in the United States offers little to those of us who are active practitioners and teachers of human (and earth) rights law. Although the United States persistently avoids the obvious, America is a well-known major human rights abuser both domestically and globally. However, I have found that all is not lost. Domestic human rights organisations, like the US HRN, can have an impact by exposing such abuses and the isolation of the United States within the international community of nations. I believe that human rights arguments have led to domestic changes, for example, in US practices of torture, the death penalty, corporate social responsibility, gender discrimination, and, to a limited extent, climate change responses. The United States may assert its “exceptionalism” in the face of it being an outlier in its refusal to sign or implement various human rights treaties, but it still reacts to global humiliation for its conduct.
Do you expect any changes in law in the upcoming years? Are there any influences which may encourage a paradigm shift?
I must say that one of the most unexpected and beneficial rewards I have received from my decades of law practice came from the least among us, my indigenous sisters and brothers. I initially became involved in their struggles out of outrage over their history of hundreds of years of colonial oppression, ethnocide, and genocide. Despite having been the first nations and occupiers of the Americas, they suffer from extreme poverty and cultural devastation under the continuing rule of the United States as a successor colonial power. Yet, they have always treated me, someone from the privileged race and an agent of the law that has been used to destroy them, with great warmth, respect, and acceptance. They have a spirituality and a seamless connection with their ancestors and future generations and with nature and mother earth that sustains them and that I have been able to experience in a small way.
They have their own “laws”, natural law, as reflections of their history, culture, and spirituality. As Western culture and laws drive us towards a global climate disaster and, according to some scientists, possible human extinction, I and many others are looking to our indigenous family for wisdom in developing other ways that might lead us to a sustainable future in harmony with our non-human living and non-living relatives that occupy the earth with us. I do not consider myself a religious person; but, my indigenous relations have convinced me that the one element Western culture and its laws lack is a connection to the natural world, to all the circumstances of our own existence, that compels us to seek balance and harmony and respect if just for the survival of our own species, our children and grandchildren.
But, with the help of our indigenous relations and our other relatives from the non-human natural world, we just might over the next few generations transform, embrace the paradigm shift, in a way that would ensure our children’s survival.
In many ways, the practice of law in America is the antithesis of an indigenous approach to resolving disputes and seeking fairness justice. I’ve tried to incorporate in my practice some of the wisdom from my indigenous relations, but it has been difficult. There are some openings in designing remedies, in settlement of claims which include more than money, remedial policy changes, in non-adversarial solutions to domestic relations disputes, in corporate social responsibility, and even in government regulation.
IMF and World Bank regulations, for example, now as part of funding development may include contract provisions for the protection of the environment and the communities hosting the development. Environmental law is beginning to trend more towards consideration of ecosystems and broader, even global, considerations. There is a growing movement within America for grassroots democracy, community empowerment, and decentralization of authority. It is slow and incremental. But, with the help of our indigenous relations and our other relatives from the non-human natural world, we just might over the next few generations transform, embrace the paradigm shift, in a way that would ensure our children’s survival. “Aho mitakuye oyasin” – All my relations.
Andrew (“Andy”) Reid is a non-conventional senior counsel with a mid-sized, Denver, Colorado, law firm serving primarily high-profile clients. He is an activist who views the law as potentially oppressive when used by the wealthy and powerful or, if taken on with great expertise and skill, as an effective tool for social liberation and justice. His work has resulted on over 60 often precedent-setting published opinions and has appeared in a large number of books, including law school textbooks, and other publications. Andy is an adjunct professor at the University of Denver Strum College of Law and a frequent presenter on matters of social justice.
Both the SRA and FCA have controls and restrictions to stop the misuse of client money accounts and the breaches or abuse that has happened within the financial services industry. There have been a number of high profile cases recently which incurred fines or liquidation, highlighting that even financial services firms are still struggling with the correct operation of these accounts. Since 2003, Global Currency Exchange Network (GCEN) & their sister company Global Custodial Services (GCS) have been successfully helping clients with their money management requirements. Being authorised and regulated by the FCA, we speak to their Director, who touches on why law firms need to tread carefully when handling client money.
Over £700,000 in fines, 20 solicitors and 3 firms prosecuted, 3 solicitors struck off – All in 12 months” SRA quote.[1]
Prior to the increased focus and tightening of regulation around the management and handling of client money, what were the most common ways in which these needs were serviced?
More common than not, client’s funds were deposited into a law firm’s main client bank account until the appropriate time for the funds to be transferred, as per the client’s instruction. This was problematic for numerous reasons and the client funds were susceptible to misuse, for example: being used for transactions that were outside of the remit that a lawyer’s client account can be used for.
The general lack of awareness of potential client money solution providers lead many to believe that banks were the only place to turn to, but often they were slow, inflexible and expensive to use. If using a bank was not an option, some would attempt to manage funds in-house without the knowledge or processes required to be regulatory compliant.
How big is this risk and why is it so prominent?
It is unsurprising that law firms are so susceptible to the sophisticated methods that criminal organisations employ to launder money; nowadays it is acknowledged as a global threat for the entire business world. Fulfilling ad-hoc payments on behalf of a client, which fall outside of the agreed legal representation may seem like a straight forward and value adding task and it often is, however this constitutes a breach of the SRA regulations.
“Law firms are not regulated to operate their client accounts as a banking facility for clients”
Paul Phillip Chief Executive Officer of the SRA
The client account must not be used as a banking facility, as not only does this present an increased money laundering risk - especially if acting on behalf of an overseas client -, but if managed in-house, it also requires an adherence to the most stringent processes and procedures as defined by the FCA.
The overheads in managing and monitoring each transaction to ensure its source legitimacy is critical, and this is where internal expertise is often found lacking or simply under resourced. Legal firms wishing to service this additional requirement for their clients have various ways to fulfil this need whilst ensuring compliance with the regulator.
Fines and prosecutions are on the increase. In the last 12 months, over 20 solicitors and three law firms have been prosecuted. Are there similar repercussions for other FCA regulated firms that have fallen foul of the aforementioned risks you see with SRA regulated firms?
Absolutely, there have been similar fines handed out by the FCA over the years due to non-compliance and this presents a heavy burden to firms who must stay abreast of the evolving regulatory position. If a legal practice is not enforcing the required policies and procedures to ensure compliance, the repercussions could be as severe as imposing custodial sentences. Regardless of the solution you choose to utilise, whether outsourcing or fulfilling in-house, it’s imperative that any legal practice understands and acknowledges the regulatory requirements in handling client money.
Banks are becoming more risk adverse. What other options or solutions have you seen within the legal sector. Do you need specific permissions to operate a client money account?
Some banks have had their fingers burnt and have lost their appetite in managing client money accounts due to the increased risk of money laundering and due to the general transactional nature of such accounts. This heightened regulatory awareness across many industries (finance and legal included), has resulted in the arrival of a new ‘breed’ of client money specialists that compete with traditional banks. These new providers hold Part IV permissions granted by the FCA (under the FSMA 2000) and they allow for greater flexibility, fast track opening of bank accounts, streamlined and auditable processes allowing for the efficient management and handling of client money, all of which can sit alongside the existing law firms banking set up.
While most legal firms are aware of the rules associated with managing client money accounts, we see some potential issues when inadvertently conducting payments outside of the main legal representation.
This is obviously not a core part of a law firm’s business, and in most cases, will be ancillary to day to day business. Are there specialists in the financial services industry who can assist law firms with client money accounts?
There are specialist providers who focus purely on providing client money banking services enabling firms to offer a more transactional service to their clients. These specialists have purpose-built systems and processes which are regulatory compliant and operate with the necessary controls to mitigate the AML risk. Unlike banks, these specialist providers offer greater flexibility and can often adapt their systems to meet the needs of most organisations, regardless of transactional volume. Outsourcing this heavy lifting can be far more cost effective than building an in-house solution.
Delegating this burden to a client money provider can reduce much of the risk, as well as possibly lowering a firm’s overheads, including insurance premiums.
What are the common hurdles clients typically need assistance on?
While most legal firms are aware of the rules associated with managing client money accounts, we see some potential issues when inadvertently conducting payments outside of the main legal representation. Having the systems and processes in place is often the most challenging and cumbersome. Managing daily reconciliations, daily AML checks, complex transaction monitoring, daily calculations, breach reporting & staff training are some of the headline challenges that need specific expertise and to be managed day to day.
From your extensive experience working in the finance sector with banks and payments, can you give our readers some key areas to focus on to limit this obvious AML risk that needs managing?
Regulators constantly need to update and change their regulations, guidance and industry standards to combat the increased money laundering threat and as such, focus should be applied here on a regular basis.
Whether using in-house solution or outsourcing to a specialist third party you must ensure your accounting & IT systems adapt as the industry evolves. Relationships with banking providers, 24/7 access to account & customer support, extensive staff training and of course having a highly qualified team monitoring all the daily compliance requirements as mentioned above are key.
Andrew Fundell
Director
Andrew Fundell, Director of Global Custodial Services Ltd (GCS), a specialist financial services provider offering a portfolio of client banking solutions including payment & treasury services for corporates, law firms, investment firms, institutional investors, HNWI’s and Family offices. Authorized and regulated by the FCA and fully licensed to hold client money, GCEN and GCS transact over USD $4bn annually & strives to maximise efficiencies within the clients domestic or cross-border payment operations and adhere & operate to the most stringent set of client money rules, defined by the FCA as the “CASS money rules”.
[1] http://www.sra.org.uk/sra/news/press/client-banking-warning-notice.page
No one wishes for conflicts in the workplace, but sometimes people clash, which causes conflict. What is the main way to avoid disputes? With a background in behavioural psychology, Mediator Jeremy Scuse answers that communication is key. He shares more below on resolving relationship-base conflicts.
As a specialist in relationship-based conflicts, what three things do you think are vital for ensuring teams avoid disputes?
Communication, respect and trust, because each one leads to the other.
Communication skills are vital to our everyday lives and yet are not taught in schools or universities as standard. When we join a team we have to learn their rules and values of behaviour, and that absorbs a lot of resources. If we don’t have the communication skills, we can create misunderstandings with our team mates and won’t have the confidence in our language skills to ask what went wrong. The result is wasteful of a team’s energy, time, opportunities and requires a huge diversion of effort to rebuild the trust a team needs to function effectively. So, every time a new person joins the team, it benefits everyone for them to learn the team’s communication styles, values and behaviour rules.
Without the communication skills to front the behaviour and elicit agreements about what is and is not acceptable, a grievance would soon be raised with all sorts of negative impacts for the team.
From this, can you expand on where disputes commonly arise from?
Almost always poor communication. For example in a team, say one member deliberately starts to pick on another for whatever reason. Good communication skills in the team lead would stop that behaviour before it affects the whole team; it’s often known as “having a difficult conversation”, but you could also call it early dispute resolution.
Another example: someone has had a bad morning at home and ignores a colleague in a meeting, so the colleague feels publically disrespected. If they both had the language skills, they would sort it out before the end of the day, rather than let it fester. Or, in a sad attempt at humour one male colleague cracks a poor joke at a younger, female colleague’s expense. Without the communication skills to front the behaviour and elicit agreements about what is and is not acceptable, a grievance would soon be raised with all sorts of negative impacts for the team.
Listen hard, ask open ended questions to unpick statements, don’t judge - but be prepared to help those in conflict really understand the underlying problem.
Moreover, when entering a dispute, what would you advise the first course of action to be?
Listen hard, ask open ended questions to unpick statements, don’t judge - but be prepared to help those in conflict really understand the underlying problem. Initially they will present their “truth” about what happened, which they will have rehearsed, embellished and built defences around. Never challenge it, but ask them to analyse it, to identify the problem that led to the formalised dispute. Look for areas such as poor communication as a key issue, leading to feelings of being picked on, ignored or passed over, leading to a lack of respect and trust.
How does ‘attention to detail’ work in your favour when resolving disputes in the workplace?
For parties to resolve a dispute normally puts both sides on a steep learning curve around what happened and how to stop it happening again. Part of this is about behaviour change on both sides; the mediator’s attention to the detail is to clarify and bring certainty to who will do what, to whom, when and how and, crucially, what they will do or say when it goes wrong, which it will from time to time.
Jeremy Scuse is a behavioural psychologist by degree, spent most of his life in international marketing and came to mediation some 15 years ago at the suggestion of a legal friend. He has mediated commercial contract, partnership, Intellectual Property and Insurance claims, has a special interest in workplace conflict, is on the SMN’s Workplace Interest Group.
Catalyst was formed in 2005 and has since mediated in almost every sphere of conflict except between nations and provided training to hundreds of people in communication, leadership and conflict resolution. The one common factor across all of them is an understanding of the human being.
Earlier this month headlines took the papers with the first issue of an unexplained wealth order for a woman who had spent a shocking £16 million at one of the UK’s most prestigious and recognised high-end stores: Harrods. This bill is only a fraction of the money Zamira Hajiyeva has spent over the past few years, and with growing concerns of money laundering and bouts of corrupt money choking the financial atmosphere, we hear from Michael Harris, Director of Financial Crime Compliance at LexisNexis® Risk Solutions who speaks on this matter and how unexplained wealth orders may combat financial crime.
Unexplained Wealth Orders (UWOs) are a relatively new power granted to law enforcement by the government under the Proceeds of Crime Act 2002 (POCA) and the Criminal Finances Act. The legislation requires a person who is reasonably suspected of being involved in serious crime to explain the nature and extent of their interest in particular assets, and to disclose the sources of their wealth.
Unexplained Wealth Orders are part of a new arsenal of tools designed to stem the flow of laundered money passing through the UK.
Although this tool has been at the National Crime Agency’s (NCA) disposal since 31st January 2018, UWOs have recently been thrust into the spotlight due to the fact that the UK’s first ever UWO has been enacted against Zamira Hajiyeva. The Azerbaijani national spent over £50 million in the UK over the course of a decade, including the purchase of a Berkshire golf club, a jet and a £16 million spending spree in Harrods, the equivalent of more than £4,000 a day. Mrs. Hajiyeva will now have to explain the source of her wealth for buying the properties, and if she cannot, they will presumed to be the proceeds of unlawful conduct and will become open to civil recovery proceedings.
It is the first time that we have seen one of the so-called ‘super-powers’ from the Criminal Finances Act being used, and the industry will be watching with baited breath to see if a flood of further UWOs will be used by law enforcement in other cases to compel disclosure of funds and their legitimacy.
According to the International Centre for Asset Recovery’s 2018 Basel AML Index, there has been “little measurable progress in countering money laundering” globally
The case for using UWOs
Unexplained Wealth Orders are part of a new arsenal of tools designed to stem the flow of laundered money passing through the UK. Whilst undoubtedly a crucial part of law enforcement in this area, as a new power, there needs to be absolute certainty and confidence that they will be an effective measure against financial crime. In legal circles, UWOs are still a slightly controversial measure as proof of illicit wealth sources is not required by law enforcement to challenge politically exposed persons (PEPs) about the sources of their wealth.
According to the International Centre for Asset Recovery’s 2018 Basel AML Index, there has been “little measurable progress in countering money laundering” globally, with 64% of the 129 countries listed having a score over five, which is defined as a ‘significant risk of money laundering and terrorist financing’ occurring.
Across the board, effectiveness in stemming these dirty money flows is lagging behind technical compliance, and there is a low level of effective enforcement of anti-money laundering and counter-terrorist financing measures. Indeed, the Index also showed that 47% of countries assessed have a low level of effectiveness in investigating and prosecuting money laundering offences.
Law enforcement agencies globally are struggling with resource and therefore enforcement of regulations. The NCA is ahead of the game in this matter, and it is why we’re expecting to see UWOs be more extensively used in the future, but in the interim, it’s up to the financial services community to put in place far more rigorous anti-money laundering controls. Unless the right checks and balances are in place, dirty money can cross a border and be converted into other currencies or assets before anyone realises that a financial crime has been committed.
UWOs operate at the highest judicial level, with the NCA working alongside the High Court should the individual subject to the order not be able to prove a legitimate source of their wealth or property.
The Hajiyeva order
In the case of Mrs. Hajiyeva and her husband, there is allegedly a discrepancy between the apparent joint income of the family and their levels of spending, particularly when it came to the ownership and purchase of top-end assets such as real estate. This was the basis of the NCA filing the first UWO.
During the purchase of any real estate, commercial or otherwise, there should always be an appropriate level of due diligence conducted by both the estate agents and any solicitors involved in the process to ensure that the buyer’s sources of wealth are valid. In the case of Mrs. Hajiyeva’s golf club purchase, for example, questions are now being raised about whether adequate checks were conducted and indeed, how effectively these checks are being implemented more broadly in the purchase of premium real estate.
What’s next?
UWOs operate at the highest judicial level, with the NCA working alongside the High Court should the individual subject to the order not be able to prove a legitimate source of their wealth or property. There are further tools at law enforcement’s disposal at a more local level, however. Freezing orders, also called asset freezing orders, can be used by local courts at an operational level to freeze suspected high value assets very quickly.
There must be higher levels of information sharing between financial institutions, law enforcement agencies and regulators to learn from each other and share best practice, to up the ante in the fight against financial crime.
In addition to going after financial criminals directly, the government has made clear that it will also target those who may be enabling this type of crime, including lawyers, accountants and other intermediaries, so called ‘professional enablers’.
Using a combination of freezing orders and UWOs, it is likely that there will be a further clampdown on top-end assets, such as real estate, where money flows are from high-risk countries. Russian money is one of the biggest concerns here, but there are other areas such as Azerbaijan, the Middle East and areas of Africa which the Basel AML Index has noted to be of equally high, if not higher risk.
Whilst spotting red flags and ‘following the money’ should still be the basis of any due diligence when looking at suspicious wealth sources, the challenge is increasingly coming from new forms of money laundering schemes that have not been seen before. To combat this, there must be higher levels of information sharing between financial institutions, law enforcement agencies and regulators to learn from each other and share best practice, to up the ante in the fight against financial crime.
Michael is Director of Financial Crime Compliance and AML subject matter expert. He leads a team of sales specialists in the Financial Services Industry who provide expert guidance on entity identity verification, client data management, KYC/AML screening solutions and enhanced due diligence. By drawing on the global suite of products offered by LexisNexis Risk Solutions in Data, Analytics and Technology the team create innovative solutions that support the entire client journey in onboarding and ongoing monitoring of AML Risk.
