Understand Your Rights. Solve Your Legal Problems
Two cases dating back to August 2018 were considered by the Federal Court of Justice. Facebook had deleted comments that criticised Muslim migrants and other people of immigrant origin. The social media giant also suspended the users’ accounts. However, the Federal Court ordered Facebook to restore the posts, ruling that Facebook was not entitled to remove the posts or suspend the accounts under its April 2018 conditions of use. The conditions of use prohibited users from violating community standards and banned hate speech, however, “hate speech” was not clearly defined under the conditions.
The court said that the social media giant is, in principle, entitled to set standards that exceed legal requirements to reserve the right to delete posts and suspend user’s accounts. However, at a bare minimum, Facebook must commit to informing users about the removal of a post or provide advance notice of suspension and the reason for suspension.
In an emailed response, Facebook said it welcomes the Federal Court’s ruling.
A decade on from the Bribery Act coming into effect, Aziz Rahman considers whether or not it has lived up to the hopes and expectations that surrounded its arrival.
It is important to remember that when the Bribery Act was first proposed, its strongest advocates built it up as being the legal equivalent of a silver bullet, capable of removing a large proportion of the wrongdoing that exists in international business. As recently as two years ago, it was being referred to by members of the House of Lords as the international gold standard for anti-bribery legislation.
As it is ten years since it came into effect, perhaps now is the time to assess whether it is deserving of gold, silver or even bronze status. While those in the gold camp would argue it has set the standard for tackling corporate crime, its detractors would point to the fact that prosecutions under the Act have been few and far between. So just how effective has it been?
There is little doubt that the Act has come to be viewed as the starting point when other countries consider creating anti-corruption legislation. This is partly because of just how far-reaching it is. From 1 July 2011, when it came into effect, the Bribery Act has covered all companies of all sizes, either based in, or with a close connection to, the UK. Any such company can be prosecuted in the UK, under the Act, for bribery that was perpetrated on its behalf anywhere in the world by its staff, an intermediary, third party or even a trading partner acting on its behalf. With maximum punishments including unlimited fines and up to ten years’ imprisonment, it is a piece of legislation that could only be dismissed as ineffective if it was not being put to work by those who have it at their disposal.
That, perhaps, is what has prompted criticism. There can be little argument that the Act has been used sparingly in the past decade, with most convictions being of individuals for offering bribes (an offence under Section 1) or the Section 2 offence of taking bribes. The Section 7 strict liability offence of failing to prevent bribery was the part of the Act that caused most concern to the business world when it was set to become law. But the fact that Section 7 prosecutions have been rare does seem to have made such concerns look alarmist, in hindsight.
But although there have not been many prosecutions under the Act, this should not be taken as a sign that it is of little value. I can put forward at least three reasons for this. The first and most obvious one is that bribery investigations can be complex and time-consuming. As a result, the courts are never going to be swamped by a huge wave of bribery prosecutions. Secondly, the lack of Bribery Act prosecutions could be viewed as a sign of its success in persuading companies to ensure their anti-bribery procedures are fit for purpose. Its international reach and the severity of the penalties that can be imposed may well have focused minds on the need for compliance.
The third reason is deferred prosecution agreements (DPAs). Nine of the 12 DPAs that the Serious Fraud Office has concluded with companies have been related to bribery. A number of the offences were committed before the Bribery Act came into effect, and so could not have been prosecuted under it. But nevertheless, DPAs have been used enthusiastically by the SFO as an alternative to Bribery Act prosecutions. But this is arguably no reason to criticise the Bribery Act. If anything, it has been almost a facilitator for the SFO: the prospect of a Bribery Act prosecution can act as the menacing elephant in the room when the SFO is conducting DPA negotiations with a company that has become entangled in bribery. It was certainly enough of a frightening prospect to prompt Airbus to pay a fine and costs amounting to €991 million under its UK DPA, which formed part of its €3.6 billion global resolution for bribery.
All three of these factors have influenced just how the Bribery Act is being used. So, it would be a mistake to argue that just because there have only been occasional prosecutions it has somehow been a failure. That is down to its use by the authorities rather than any fault with the Act itself.
Speaking virtually at the Austrian World Summit 2021, climate activist Greta Thunberg attacked global leaders, accusing them of “role-playing” and failing to take purposeful action as fossil fuel usage continues to climb. As well as the globe’s leaders, big corporations have also come under attack by Thunberg for the detrimental impact their operations have on the planet.
Businesses and political leaders are not only expedited to action by activists such as Thunberg, but also the increased deployment of climate litigation. According to a study by the London School of Economics, the number of disputes relating to the climate crisis has more than doubled over the past five years. This is what we are coming to know as the climate litigation boom. Over the coming years, the effects of the climate crisis will inevitably worsen, leading to further climate-related disputes.
Litigation against companies is already increasing in the form of private legal claims, and this is a trend that is expected to increase further in the years to come.
November 2015 saw the first case in Europe seeking to clarify the environmental responsibilities of oil and gas companies. Peruvian farmer Saúl Luciano Lliuya brought a claim against Germany’s largest electricity producer RWE over allegations that RWE excessively contributed to the climate crisis by emitting substantial amounts of greenhouse gases. The farmer claimed that this contributed to the melting of a glacial lake near the farmer’s home town of Huaraz, Peru.
Claims against energy companies by states are also becoming an increasingly frequent occurrence. In 2018, for example, Rhode Island launched a lawsuit seeking to hold 21 fossil companies to account for causing climate change impacts that adversely affected the Rhode Island state and its residents.
Another example of this comes later on in 2018 when New York City revived its claim against several fossil fuel companies. The city sought costs for the measures it established to protect its residents from the impacts of the climate crisis. New York City claimed that the defendants were responsible for 11% of carbon and methane pollution from industrial sources. In April of this year, New York City also sued oil giants Exxon, BP, and Shell, claiming that the companies had been misrepresenting themselves by selling fuels as “cleaner” and promoting themselves to be leaders in the fight against the climate crisis.
It is not only big corporations that are increasingly being held to account, but also the world’s governments. 2018 saw a landmark ruling, upheld by The Hague Court of Appeal, in which an environmental group and approximately 900 Dutch citizens succeeded in their rights-based claim against their government. It was ruled that the Dutch government must reduce CO2 emissions by at least 25% compared to 1990 levels after it was found to have both a constitutional duty and a duty to protect its citizens against the impacts of the climate crisis. The outcome of the Urgenda Foundation v the Kingdom of Netherlands was the first decision by any court in the world to order a state to reduce its greenhouse gas emissions for a reason beyond statutory mandates.
Claims related to the climate crisis are also being brought forward by activist shareholders and investors. Towards the end of 2018, environmental law organisation ClientEarth sued Polish utility company Enea SA over its approval to construct a coal-fired power plant. ClientEarth argued that the climate crisis-related financial risks of the power plant would harm the economic interests of the company. The claim explored whether or not Enea SA’s approval of the power plant breached the duty of its board members to act in the company’s best interests.
Similarly, this year shareholders rebuked Exxon Mobil for its climate change strategy. At the annual company meeting held in May, shareholders voted to replace two of their twelve board members, with nominees supported by the Engine No.1 activist hedge fund. The vote sent a clear message to company CEO Darren Woods that shareholders were not impressed with Exxon’s current efforts to reduce its environmental impact.
Although not all the aforementioned claims have seen success, it is clear that climate change litigation is a trend rapidly on the rise. In the years to come, the climate litigation boom will only expand further as the need to hold the globe’s governments and big corporations to account intensifies.
Bishop & Sewell is a 110-strong law firm with bold ambitions to be ranked in the top 100 places to work in the UK, having already earned its status as an independent top 100 law firm. The firm believes technology is central to achieving its ambition and have brought Access Legal in to help free up critical time currently dedicated to legacy systems. Bishop & Sewell is looking to achieve greater efficiencies across its business, ultimately ensuring the firm’s people are equipped to reach their full potential.
Access Legal will assist the firm in the rollout of a proven intuitive browser-based practice management system, and a new risk and compliance platform. Bishop & Sewell also purchase Access Legal’s customer relationship management system (CRM) which helps the team to better track enquiries, identify the source of new business, improve the handling experience, and more easily identify potential cross-sell opportunities.
In a comment, the firm’s Managing Partner Michael Kashis said: “We’re an ambitious law firm and wanted an equally ambitious technology partner. Access’ current and future strategy and product direction really appealed to us.”
“It’s important that we are fully accessible to clients but also it is just as critical that we help our people and our wider firm become more efficient. This meant looking beyond just an easy to use true Saas practice management system but investing in a more holistic software ecosystem that supports multiple areas of our practice – from managing our cases, our documents, our finances and communicating with clients to remaining compliant and staying ahead of regulations. This will give time back to our people, allowing them to embrace their passions within the business that aren’t just bringing in a fee, such as CSR activities, championing mental health and wellbeing or investing time into learning and upskilling. At the same time, we will be able to offer an enhanced customer experience with the arrival of our new CRM.”
Neil Messenger, Director of Client Markets at 1825, explains what being made a partner could mean for your personal finances.
By taking on this new position, there will be a whole host of changes. But on top of that, new partners mustn’t overlook the financial implications that their new role brings.
With greater responsibility comes the potential for greater financial liabilities. By stepping up to become a partner, individuals may make the shift from being a salaried employee to being self-employed and owning a stake in their business – bringing changes to how they’re paid, their pension and their tax liabilities, and making their financial and work lives more intertwined as a result.
One of the biggest financial changes for new partners is the way in which they are paid, and therefore how much tax they are liable for. These individuals will now be viewed as self-employed so taxed as a sole trader, even though their partnership will usually handle tax returns and payments. However, tax and national insurance are still a personal responsibility.
The tax liabilities owed by an individual will likely depend on the type of partner an individual is. Typically, there are three different levels: salaried partner, fixed-share equity partner and full equity partner:
Whilst full equity partners usually earn more, this doesn’t come without risk. A robust financial plan is important to build security outside of the business and mitigate those risks. Speaking to a tax planner or financial adviser will allow new partners to fully understand their tax liabilities and how best to prepare for any difficulties when their income may be unpredictable.
After an employee becomes a partner, they will no longer be eligible for their company’s pension scheme. Instead, partners must start their own private pension or, if the firm offers a partners pension, they can enter that. But the bottom line is that, by leaving the company pension scheme, a new partner gives up their employer contribution – which can be as much as 10% for older, salaried employees. With partners now responsible for making their own contributions, without the additional top-up provided by the employer, individuals can see their contributions tail off.
It will be important that partners continue to save as much as they can into their pension. However, higher earners may have their contributions limited by taper rules on tax relief, which could reduce how much they can pay into their pot to £10,000 a year – a figure that partners could hit or even exceed without noticing. Because the rules around a partner’s pension contributions apply to total income, it can be especially difficult to assess how much can be made in the way of pension savings until the end of the year. A professional adviser can help a partner understand their pension limits, and plan to ensure they’re maximising the growth and value of their retirement savings.
Many companies will aim to instil good governance for their partners’ finances by contractually requiring that partners have an updated will and estate plan in place within their first year. However, there are still risks associated with becoming a partner and protecting one’s assets.
In extreme cases, a partner’s personal assets – including their home – may be liable to practice debts, should the firm enter financial difficulties. If there are insufficient funds in the partnership to cover the liabilities, creditors can pursue the individual partners. A common way to limit the impact that a firm’s potential financial difficulties might have on a partner is to hold assets in trusts, a limited company, or in the name of another close family member. However, this can leave partners without any assets to their name, so it is important to strike a balance.
Once a partner reaches retirement, it’s common to receive a guarantee from the ongoing partnership against any future claims against the business, but this is not the case in all situations. It is therefore important that partners make sure they understand their specific contractual stipulations pre-retirement.
It’s easy to find a change in your financial situation overwhelming when becoming a partner, particularly in the first year of a partnership, but this is where financial advisers can play a key role. They can ensure that everything has been considered when it comes to your finances and will help you take the necessary steps to limit any future financial difficulty.
Three of Clarke Willmott’s regional offices have placed highly in the guide which recognises leading law firms and legal advisors for high-value legal matters. Five of the firm’s lawyers have also been named individually in the guide.
The firm’s Taunton office has retained its Band 1 ranking, while its Manchester office received a Band 2 ranking, and its Bristol office obtained a Band 3 ranking.
Clarke Willmott has also been recognised for its work in Private Wealth Disputes in the South West of the country, with a further three lawyers named as leading practitioners in the field.
Head of Clarke Willmott’s Private Client team, Antony Fairweather, commented: “We are delighted to once again have been named as one of the leading private client law firms in this year’s High Net Worth Guide. It is a testament to our hard-working and conscientious lawyers that we have retained or improved on last year’s impressive results, showcasing the strength and consistency of our practice. Our strong and growing presence in all regions of the UK highlights Clarke Willmott’s private client practice as one of the best and most diverse in the country.”
Christophe Frèrebeau, CEO and co-founder of Della, discusses the evolution of AI in law.
AI-driven contract lifecycle management and analysis technology has been receiving lots of attention in the law firm and enterprise space recently. With Ironclad recently valued at $1 billion, Evisort raising $35 Million in Series B funding and Agiloft raising £45 Million. Not to mention Docusign’s acquisition of Seal Software for $188 million last year. So, it’s unsurprising that the spotlight is fixed firmly on this space. With adoption, market consolidation and sales also increasing, it is clear that contract analysis is now seen as an investment with huge potential for both buyers and investors.
What is also clear is that the spike in interest, adoption, and investment comes from a universal need across the business world to boost productivity. Increased client pressures, the volume of work and, of course, Covid-19 have all accelerated digital adoption and the need to drive efficiencies in the way organisations are run. However, despite recent interest, contract analysis tools are not exactly new kids on the block, and as a nascent technology, there is still plenty of room for AI-driven contract lifecycle management and analysis technology to evolve to meet the ongoing needs of end-users, whether they are in law firms or corporate legal departments.
Contracts define who does what, at a defined price or prices, over a specified time. Contracts also determine who is responsible when things go wrong, whether in a transaction or in an overall relationship. Businesses have run on contracts for centuries. As a result, early attempts at using AI in law have focused on managing, or should I say ‘detecting’ clauses in contracts. I like to imagine this as AI being used like a yellow highlighter going through your contracts and flagging the bits that require your attention. There is no question that this was, and still is a very significant step in the digitisation of the legal sector, enabling technology to take some of the burden from lawyers.
The crucial point is that this type of contract analysis technology isn’t true AI. A lawyer still has to manually review a clause and spend time finding the answer to their specific question. If we want to use AI to its full potential in this process, we need a tool that does more than just ‘highlights’ the clause that you need to review, but actually finds the answers to your questions, thereby providing you with actionable information quickly.
From a law firm standpoint, the new direction is clear: the client must come first. If not they will go elsewhere. From a technology standpoint, perhaps less so. Many solutions in the contract review market struggle to balance putting the client first and providing a solution that can service large numbers of customers with different needs. In an attempt to put their clients first, many in the contract analysis technology market train individual AI models for specific tasks. This training requires large amounts of niche legal data and human supervision to get the model up to speed. It is expensive and difficult to maintain. As a result, many legal tech vendors are oversimplifying a contract’s role, by defining it as a single document containing a set of clauses. In short, they are standardising legal processes to fit their “one size fits all” solution.
Some vendors have started to notice these limitations and are building capabilities within their solutions to overcome them. For example, adding custom fields and tracking user-generated data points. However, despite them adapting to meet the needs of their clients, these “bolt on” capabilities often lead to increased complexity. So, rather than trying to get your contracts to fit the narrow criteria of your legal technology, wouldn’t it be better if your contract analysis technology was flexible enough to provide the information your users actually need from any given contract? Rather than basing it on assumptions of what they might need on an oversimplified version of a contract.
The next step in contract analysis must be to help lawyers on both sides of the table to drive efficiencies in their contract management lifecycle. Moving from a traditional process, which requires a great deal of manual oversight, to true AI, which removes the burden of oversight and manual review from lawyers, while allowing them to remain in control. Contract analysis should not oversimplify legal processes. It should allow users to customise their tools to their specific needs and, crucially, it should be easy to use.
Ultimately, the goal of AI is to assist us, by making cumbersome tasks as painless as possible.
Della’s platform launched in January (2020), but it is already being used by small and large law firms across multiple countries and several large multinational corporations. Those law firm partners range in size, from top UK and European law firms, to smaller boutique providers and enterprise organisations. Della’s customers include: Eversheds Sutherland, Fidal, BCLP, Wolters Kluwer, and Content Square (USA). The smallest law firm currently using Della has 12 lawyers. Last year, Della launched a partnership with Wolters Kluwer to provide Della to their contract management platform customers.
On Monday, US district judge Loretta Preska found Steven Donziger to be guilty of six contempt charges brought against him for refusing to transfer evidence in a complex legal dispute that set Donziger directly against oil company Chevron.
Preska said that the lawyer had “repeatedly and willfully” defied court orders and said it was time for Donziger to pay the price of his wrongdoing. Donziger will now face six months in jail. However, the lawyer has said that he will appeal against the ruling.
Donziger has already been confined to his New York City apartment for almost two years under a court order, with a monitoring bracelet fitted to his ankle at all times. Donziger’s detention has gained him the support of several celebrities and environmental activists, including Pink Floyd singer Roger Water and actor Alec Baldwin.
The decade-long legal saga stems from a 2011 judgement in Ecuador where oil company Chevron was ordered to pay out $9.5 billion in damages to people who suffered decades of polluted air and water. Donziger, who represented the people affected by the pollution, accused Chevron of polluting the area through its oil drilling operations. However, Chevron has never accepted Donziger’s accusations and has accused the lawyer of bribing the judge in Ecuador and composing the final verdict. Donziger has strongly denied these claims.
However, back in 2016, US judge Lewis Kaplan, ruled that Donziger was involved in racketeering activity. The judge granted the oil company’s seizure of Donziger’s mobile phone and laptop, and when the lawyer appealed, he was put under house arrest with charges of contempt.
Kristen Motzer, Learning Director at LRN, explains how law firms can benefit from diversity, equity, and inclusion (DEI) programmes.
Standard corporate training is not enough to create an inclusive workplace culture. Law firms need to go beyond settling for subpar training and, instead, seek creative ways to both educate and inspire their employees. As diversity, equity, and inclusion (DEI) increases in organisational priority, having a welcoming environment is essential, as workers need to feel a sense of belonging.
An effective DEI training programme can help to achieve this, as it sets out a plan for how to apply learning and communication initiatives and how to help your organisation understand systemic DEI issues, share experiences, build empathy, and reflect on how they can drive change. When all these factors are included within a firm’s DEI curriculum alongside best learning design practices, this can ensure that the material is both effective and meaningful.
The key to achieving a successful DEI training programme is creating a curriculum with an engaging, connected, and inspiring learning strategy. Consider these six factors as you begin designing your curriculum.
Firms must consistently engage participants throughout the year. Quick one-off training sessions are no longer deemed recommendable. Instead, the new way of approaching learning development is by applying microlearning. This is the process of delivering mini and easily digestible learning bites to employees when and where they need it. This will increase the retention rate, and employees are more likely to apply the training material. DEI topics that focus on improving individual and company-wide behaviour will especially thrive using this tactic, as long as the learning material is reinforced over a period of time.
To see real behavioural change, a range of learning experiences also needs to be applied. For example, videos, infographics, and quizzes should be incorporated in order to keep people engaged.
DEI should be perceived as a journey of shared experiences instead of a written on-paper guide. It encompasses a wide range of sensitive topics, many of which will lead to conversation and self-reflection. Therefore, your DEI training programme should assess where it is essential to involve group discussions and aim to encourage asking questions, as learning individually is not enough to change behaviour.
Leaders should be active participants in the learning process in order to show that DEI is a part of the firm’s daily operation. Executives and managers need to be representatives for DEI, whether it be through facilitating or leading team exercises, employees need to see that they are directly involved. Change begins at the top; if the leader sets a good example, the rest of the pack will surely follow.
Your DEI plan needs to reflect the international scale of the firm. A way to do this is to remember that cultural differences must be incorporated into learning, even when it may seem universal. Using a global lens means going further than including more people of different nationalities in your imagery.
Even though this is a step forward, this does not necessarily mean the content will be more relatable. Cultural differences must be embraced. The unfortunate fact is that discrimination and racism are everywhere, and how it manifests can vary depending on where you are. This must be considered when developing DEI material, starting with the most fundamental message of seeing our commonalities with one another, then moving forward from there.
Hearing the experiences of real people and using real-world examples for case studies within your DEI curriculum is more likely to resonate with learners. By listening to unscripted stories based on DEI issues, employees are able to empathise by relating to the human experience.
Additionally, the practice of listening to one another encourages the action of being open to forming friendships outside of familiar territory. Therefore, offering guidance on how to apply the information learned during the training. This will ensure the learning experience extends beyond the firm’s office and into the real world.
In the past, ethics and compliance training often placed actions in two boxes: “do,” and “do not do.” However, DEI is much more nuanced than that. Your curriculum should be focused on understanding systemic issues and what needs to change and encouraging people to reflect on their own perceptions. By equipping people with the skills to navigate grey areas, they are more likely to cultivate a respectful workplace environment. The world is not black and white, this must be exhibited in your DEI curriculum as well.
At the end of the day, the most important takeaway is that employees should learn how to respect the experiences of other people. This can be achieved by ensuring there is a human-centred learning program in place. The goal of a successful DEI programme is to ensure workers feel like they can bring their whole selves to the workplace, without fear of judgement or being in culturally insensitive situations.
Kristen Motzer is a leader in values-based behaviour change and an experienced designer of engaging scalable learning solutions. As a Learning Director at LRN, she oversees the learning design of the company’s library of online and facilitated learning experiences on a variety of ethics and compliance, DEI, leadership, and other topics.
As the pandemic continues to shake up traditional ways of working across the legal sector, US law firm Gibson Dunn has encouraged its lawyers and trainees to work remotely whenever doing so is appropriate. Managing partner Barbara Becker said that both clients’ and the teams’ needs should be taken into consideration, as well as the lawyer’s own comfort. Becker said that balancing professional responsibilities with personal responsibilities was key to a vibrant and sustainable career.
However, the firm has also stated that lawyers, in particular juniors and trainees, will still need to come into the firm’s office’s from time to time. Becker stressed that the firm would not want any of its employees to miss out on the training, mentorship, and professional development benefits that come with in-person collaboration.
Gibson Dunn is amongst many other law firms that are adopting new ways of working in response to the lifting of lockdown measures. Several firms are already finding that flexible working initiatives are improving the productivity and mental well-being of lawyers and trainees alike.
