Until the construction industry can become more focused on quality workmanship based on best practices, our buildings will be vulnerable to durability and life safety issues. We speak with Derek Hodgin, Founder of Construction Science and Engineering (CSE) who states that: “whilst CSE enjoys evaluating construction issues, we would like to educate the industry regarding what we have learned. The best way to improve our industry is to understand the failures that we have investigated and implement best practices into our design and construction practices to avoid the same mistakes in the future.”

Derek explains how each case that CSE is retained to evaluate provides an opportunity to learn about the effectiveness or failure of specific construction details. He expands to say: “This knowledge will provide the basis for improving construction practices in the future.”

He discusses with us the problems he sees in construction on a daily basis and ways in construction projects in the Caribbean addresses mother nature and natural disasters more effectively than the US.

 

What are common reasons to why you are called for expert advice during lawsuits?

Water intrusion is the most common building performance issue that CSE is called to investigate. The CSE team has expertise in building envelope issues (roofing, exterior walls, windows/doors, balconies, waterproofing, etc.) that are typically associated with water intrusion. CSE is also called to investigate product defects, foundations and structural framing, geotechnical issues, coastal structures such as docks and seawalls, construction specifications and premise liability.

 

How many of these issues that arise throughout construction are a result to budgeting problems? What way would you recommend clients to overcome this?

There is definitely a relationship between construction budgets and defects. Obviously, building to code-minimum standards represents the lowest cost building, but durability may be compromised or reduced. We recommend building beyond the code by incorporating “best practices” to improve durability. The cost of incorporating better construction details is considered to be small when compared to costs associated with typical litigation and/or post-construction repairs. Unless owners and developers are shown an immediate benefit to building above minimum standards, and proceed to build to those standards, our construction projects will continue to suffer from durability issues. Contractors that utilize competent and reliable subcontractors (and do not simply select subs based on price) will typically have more favourable results. General contractors should retain subcontractors that are familiar with the industry standards that apply to their work. These standards typically incorporate best practices that will improve durability and reduce the risk of problems.

 

What further considerations must you make when dealing with engineering assessments of natural disasters (flood, hurricane, etc.) damages?

It is always important to keep an open mind when evaluating natural disasters and to never underestimate the power of mother nature. That segment of the forensic engineering market is now dominated by young, less experienced engineers, employed by large firms that can offer the insurance company a low price. The lack of experience and desire to provide reports favourable to insurance clients has resulted in improper evaluations that have served as a “black eye” for forensic engineering. CSE is typically retained by insurance clients to settle disputes arising from differing evaluations. It is most important to provide an objective engineering analysis of each claim, with little to no emphasis on what is covered or not covered by an insurance policy. We provide our expertise regarding the cause and extent of the loss and let the insurance company provide their expertise regarding the insurance coverage.

 

How do construction based issues differ in the US in comparison to the Caribbean?

The construction pace in the United States is much faster than the Caribbean. Unfortunately, the construction industry in the United States can be focused more on schedules and profit, and less on quality. In the Caribbean, the pace is much slower, but the quality is typically better. There seems to be a higher appreciation for the environmental conditions that can damage buildings in the Caribbean, such as wind and rain events, salt-laden air that can cause corrosion, strong sunlight (UV) exposure and storm events such as hurricanes. For this reason, the materials used in the Caribbean (typically reinforced concrete) are less vulnerable to water damage than the wood framing that dominates the residential and light commercial projects in the United States.

In the United States, CSE typically investigates building performance issues in the context of construction litigation. Most buildings are less than 8 years old. Some buildings have significant damage and require extensive repairs. In the Caribbean, CSE is typically retained by property owners to document existing building conditions and provide maintenance and/or repair recommendations. Most projects are many decades old and simply require updated building components such as roofing, windows, doors, etc.

 

How have you seen the two jurisdictions develop in relation to the regulations behind construction?

The United States put forth the International Codes (I Codes) in 2000 and every 3 years after. The current code is the 2015 International Building Code (IBC). The United States certainly seems to be more regulated, but has more issues with construction defects. While the building codes are enforced in the Caribbean, the construction seems to be based more on accepted best practices that exceed building code requirements, resulting in less problems.

 

Do you think one jurisdiction could adopt the other’s regulations in order to better develop? If so, which and why?

No, I do not believe that additional regulations will improve construction, particularly since the regulations that we have are not completely effective. This opinion is based on the last 2 decades of building code revisions and the extent of construction defects that CSE investigates. All of the buildings that we investigate were intended to meet building code requirements, but typically fell short, compromising durability and safety. In order to improve construction, best practices need to be promoted.

 

Derek A. Hodgin, P.E., RBEC, CCCA

Construction Science & Engineering, Inc.

218 East Main St.

Westminster, SC 29693

derekhodgin@constructionscience.org

Office: 864-647-1065

 

My name is Derek Hodgin. I am the Owner and Founder of Construction Science and Engineering, Inc. (CSE). CSE is a forensic engineering and architecture firm that investigates performance issues in the built environment. CSE is typically retained by owners, property managers, insurance carriers and attorneys to determine the cause and extent of damages. CSE provides opinions regarding design, construction and product defects and offers effective repair solutions. The CSE team is retained by a good balance of both plaintiff and defense parties. CSE also offers design and repair services to building owners to maximize the service life of building components.

Peter is a Partner in the Forensic Technology practice at Deloitte UK and runs their eDiscovery business. He has been with the firm for 19 years and has seen the Forensic Technology team grow from just two people in London to 150 people across four separate sites in the UK during that period. He has worked on many of the highest profile regulatory, litigation and investigation matters in the UK and across many other jurisdictions around the globe. During his career, Peter has seen Forensic Technology go from being a niche, rarely utilised service to the vital driving force behind Deloitte’s entire Forensic Accounting and Investigations practice. He discusses the ways in which he is seeing technology an AI affect corporate bodies and lawyers; he also touches on how computer forensics help during investigations, and how being ahead of the legal game now requires professionals to thoroughly embrace technology.

 

What has been the biggest challenge you have faced in order to be as established as you are now? What advice would you offer aspiring lawyers, in order to help them overcome potential hurdles?

When I started in the industry the technology team was very much viewed as being a support function for the lawyers and forensic accountants that was only engaged when all other, more manual, approaches had been exhausted. That has changed over recent years to the extent that the more forward-thinking firms have the technology team working right alongside the other professionals, often from day one of a matter, advising them on their approach in order to get to the heart of the issue as quickly as possible.

For aspiring lawyers, I would say that having a deep understanding of the latest technology can help you differentiate yourself from your peers and give you a step up in your career. In fact, I would say that it will soon be essential for effective legal counsel to be conversant with the latest cognitive technologies that enable them to quickly analyse and derive value from their client’s data. It is clear that technology will help the more advanced corporate clients move from a state of event ‘detection’ to ‘prediction’, and as such the role of the client’s lawyers will also change in its nature.

 

What was your main motivation behind specialising in the legal sector?

From my university days, I have always been fascinated by the investigative world, particularly large corporate frauds. There was always an interplay between business, regulators and government that showed how the world really works behind the scenes. It was only later on that I realised that the power of technology could not only help to understand these phenomenally complex issues, but could also dramatically reduce the associated timescales and costs.  While confidentiality precludes me from discussing my work, it is immensely satisfying to see many major matters being discussed in the press and on television and to think that it is our teams that have helped clients to address those important issues.

 

How have you seen the development of technology assist you in your role over the years?

In the early years forensic technology really was a cottage industry with many clever amateurs writing software to help our work. It was such a niche play that no large corporates were involved in. That has changed a lot over the past 10 years and the eDiscovery industry is now at the forefront of the practical use of machine learning and AI. We have already seen analytic technologies significantly reduce the levels of human input required in disciplines, such as document review, and its impact will be even more profound in the years to come. We see clients on all points of the maturity curve in terms of their use of technology to manage potential issues in their businesses. At the high-end we are seeing clients whose aspiration is to leverage analytics to predict potential issues (be it fraud, corruption or other conduct issues) before they occur. While we are many years away from the world of ‘Minority Report’ it is clear that predictive technologies will play a massive role in mitigating the risks of the future.

 

Moreover, what developments are you looking forward to witnessing in the new future? How will this affect your role?

Even though we’re at the forefront of what is happening around AI, I think we’re only at the beginning of this process. I think the next five years will see a revolution in how legal and regulatory matters are dealt with from a data perspective, with far reaching consequences for the legal and adjacent professions (such as forensic accounting). An exciting model for professional services firms of the future could offer clients value by bringing together the finest minds in the technology, legal, investigative and regulatory space under one roof. We will continue to see the more ‘process’ elements of legal practice being accelerated / replaced by cognitive technologies; already we have seen document review and contract analysis tasks being significantly automated by the effective use of machine learning and AI technologies.

 

What is the main challenge when leading teams during investigations using technology? How have you developed your expertise over the years to overcome the challenge?

Performing eDiscovery work on data with which you are familiar is hard enough but new projects always present specific data challenges regarding that industry. An example was the investigations into the manipulation of LIBOR and FOREX, where the collection and analysis of audio and instant messaging traffic was first undertaken on what I might call an industrial scale. Each manufacturer has production systems out of which data needs to be extracted and analysed. Therefore, you need to build a multi-disciplined team that has the skills to develop solutions and not just rely on off-the-shelf software. It also helps to have the world’s largest IT consulting practice sitting behind you for industry specific input and expertise. Working on matters overseas has presented significant data protection / privacy challenges and it is vital to have a clear understanding of local regulation and cultural considerations.

 

In what ways does computer forensics help during investigations and litigation?

Sometimes you have to leave no stone unturned in order to find the whole truth; this is particularly true if matters could turn criminal. There are also particular types of investigation or types of industry where computer forensic skills are needed. One example would be intellectual property theft where the protagonists are usually very careful in their attempts to cover their tracks. Another area which has grown rapidly over the past five years is cyber investigations; we have a crack team of cyber investigation specialists but sometimes this team finds itself up against highly skilled and highly motivated attackers and this can be a challenge to the very best.
What would you claim is key to being successful in your role?

It is a cliché but it is true: I try to surround myself with the best people and I listen to them. At the end of the day I have to make many of the key decisions, but I always feel that I am doing it on the back of a very informed debate with some of the brightest people in the industry. I am also lucky enough to be constantly inspired and motivated by the enthusiasm and creativity of the graduates who join our practice every year.
What is the most favourite aspect of your job, and why?

Our graduate programme is around six years old now and every year we take around 20 of the brightest technology graduates into our team. Watching the contribution these people have made to the team over the years has been phenomenal. I’m sure that one of them will be my boss one day. It might be sooner than I think. More generally, I am truly grateful for having the opportunity to spend every working day with a diverse team of creative, hardworking and innovative individuals who constantly impress me with their commitment to the firm and to our clients.
Is there anything else you would like to add?
We spend a considerable amount of time educating lawyers and accountants in how technology can assist them to arrive at speedy and cost-effective conclusions to their matters. I would urge any newly qualified lawyer or forensic accountant to take the time to develop their knowledge of how technology is a now fundamental tool of their trade.

 

Peter Robinson
Partner
petrobinson@deloitte.co.uk
+44 (0)20 7303 2148
Athene Place
66 Shoe Lane
London
United Kingdom
EC4A 3BQ
www.deloitte.com

 

Peter leads Deloitte’s Electronic Discovery function in the UK. He has 18 years’ experience in helping clients marshal their data in response to legal, regulatory and investigative issues. Peter is also part of the leadership team in Deloitte Analytics, specializing in Information Management. Throughout his career Peter has led teams employing all the primary methods by which technology is used in investigations and dispute resolution.

 

“Deloitte” is the brand under which tens of thousands of dedicated professionals in independent firms throughout the world collaborate to provide audit, consulting, financial advisory, risk management, tax, and related services to select clients. These firms are members of Deloitte Touche Tohmatsu Limited, a UK private company limited by guarantee (“DTTL”). Each DTTL member firm provides services in particular geographic areas and is subject to the laws and professional regulations of the particular country or countries in which it operates.

 

Lawsuits are never an easy process, but when they come to light due to accidents, injuries and wrongful deaths, emotions and tensions rise that little bit further. We speak with James Magazine who is an attorney in Florida; he has a vast amount of experience regarding personal injury law and he discusses the tricks behind being a Top 100 Trial Lawyer, the challenges he faces when dealing with cases involving wrongful death and how his jurisdiction and its administration could be improved in order for the betterment of its citizens and James’ clients.

 

Ever since gaining your license in 1990 to practice law, how has your experience developed your expertise to be at the top of your game?

I think in order to be at the top of your game you cannot stop learning. I tried my first personal injury case in 1991 and to this day I learn something every time I try a case. I think it is very important to go to seminars on jury selection and go to trial boot camps where you can sharpen your skills. I bounce trial ideas off my fellow trial lawyers on a regular basis. I also think it is important to develop and try new ways to capture the jury’s attention. I would also state that I am a firm believer in visual aids. I think having all surgical and interventional procedures videotaped for use at trial is important. Juries can listen to a doctor testify all day about the procedure they performed but if the jury watches the procedure it has more of a profound impact. Overall, I would say never stop learning and continue to be creative; this most certainly helps me stay at the top of my game.

 

As Thought Leader, can you share what your main motivation was behind specialising in personal injury?

My main motivation for specialising in personal injury law is to help the helpless. The insurance industry, big businesses and big pharma industries have endless supplies of money to fight against the innocent victim and those giants have no intention of treating the injured victims fairly. I thrive on getting justice for those who need my help. Recently, a gentleman was referred to our office with a serious knee injury after a motorcycle accident. The offer from the big corporate defendant was $10,000. When we got into the case and retained the appropriate experts, we moved the case for trial and never stopped pressuring that corporate defendant until they settled for what was fair. What we deem as ‘fair’ is enough money for our client to have the opportunity to live the rest of his life without financial worries, since the leg injury and the infection that developed left him unable to work. After we reached the settlement, my client sent me a wonderful letter telling me that since his accident, the financial burden that he was dealing with was unbearable, but ever since I had resolved the case for him, he can now live the rest of his life without that troublesome burden.  It is stories like these that make me want to fight for justice.

 

Can you share with Lawyer Monthly what it means to you for being one of the TOP 100 Trial Lawyers in Florida? Moreover, what qualities do you think are needed in order to achieve such a status?

It was a tremendous and humbling honour to be named one of Florida Top 100 lawyers. I think the qualities that are needed to achieve this status are: a continued willingness to learn and to stay ahead of the defence bar. Listen to how the best of the best try their cases or what strategies they employ and if you can use them in your case, then do so effectively.  It is very important to always be prepared and thus I do tend to “over” prepare. You have to know every facet of your case and the defence’s cases long before the trial. Mock try your cases, learn what lay people think of your cases and your theories. Moreover, trial lawyers are famous for making things too technical or complicated, but I am a firm believer in keeping it simple. Make sure you have retained the best experts and make sure you thoroughly prepare them for trial.  I think that if your case is prepared for trial at the mediation, and the defence is aware of this, then you have the best chance for settlement. If not, you ought to prepare for war.

 

What is the most difficult aspect of dealing with cases involving wrongful death?

The most difficult aspect of dealing with wrongful death cases is containing my emotions. When you are working with a spouse that has lost their loved one of many years, or working with parents that have lost a child, being able to contain your emotions properly during your case in front of the jury is the most difficult aspect. I find that the best way to control this is through extensive work with my clients, getting to know them, the loved one they lost and the impact it has had on them. By thoroughly exploring each and every aspect of this loss as it pertains to my clients, helps me become laser focused. The emotions will always creep in, but the story is of better focus.

 

Are there any reformations to laws in the USA that you are keen to see change?

I think that our legislators in our state and local governments need to stop focusing on tort reform. Our legislators keep stripping our individual rights to hold businesses, medical device companies, big pharma and nursing homes accountable for the harm that they cause. Unfortunately, our legislators care more about the profits companies can earn instead of the harm that they can cause to the citizens that originally had elected them [the legislators]. I wish that we could do a better job at educating the public as to what our legislators are doing and trying to do to them. If the public knew that their rights were being stripped away without having a say in that, they would be outraged and hopefully vote those legislators out of office.

 

James Magazine
Personal Injury Attorney
+ 727-849-5353
www.lucasmagazine.com
8606 Government Dr, New Port Richey, FL 34654, USA

 

James Magazine was born and raised in Cleveland, Ohio. Jim graduated in 1986 from Baldwin Wallace College, located in Berea, Ohio, with a Bachelor of Arts in political science. He received his Juris Doctor from Cleveland Marshall College of Law located in Cleveland, Ohio in 1989. Jim was licensed to practice law in the State of Florida in 1990. He is admitted to practice before the United States Middle and Southern District Courts in Florida, the 11th Circuit Court of Appeals, and the United States Supreme Court.

 

The Law Offices of Lucas Magazine was founded in February 2000. Since its inception, the New Port Richey Law Firm has grown considerably due to the basic principles of hard work and dedication to our clients’ needs. Our top-notch staff takes pride in handling every detail of our clients. Members of our support staff are also bilingual in Spanish, Portuguese, Polish and Greek. At Lucas Magazine, our attorneys are dedicated to aggressively representing their clients against powerful insurance companies. The firm litigates a substantial portion of its cases and often handles the litigation work for other attorneys.

 

 

 

 

Arie Blitz is an independent cardiac surgeon who, after training at UCLA Medical Centre, has been practicing in the field for 20 years. He spent most of his career in the academic environment, having achieved full professorship, serving on numerous national committees, performing a broad range of cardiac surgical procedures, presenting at national and international meetings, and publishing articles in peer reviewed journals. With such extensive experience and knowledge in the medical field, he shares with us the reasons to why he is often called to act as an expert in legal cases, and how to overcome the difficulties of drawing to an opinion during tricky cases.

 

Throughout your years of experience as an expert, what common mistakes do other medical professionals make, which thus has the potential to lead to lawsuits?

In the medical field, the most common and egregious errors that lead to liability include a lack of transparency and misrepresentation. All human beings make errors, and physicians are no exception. Most errors do not constitute negligence. However, ‘negligence’ can be a grey area, and if a physician does not communicate honestly with the patient or the patient’s family about a mistake that occurred - i.e., either not coming clean about the mistake or mischaracterising the mistake - that action itself can push the perception of the mistake beyond the grey area, to a clear breach of the standard of care in the eyes of the trier of fact. Be honest, own your error, and answer questions frankly. That is the best advice I can give to a physician regarding protecting himself from liability.

 

 

How have you seen surgery guidelines change over the years- do you think this has affected the occurrence of legal cases?

One thing I need to clarify is that guidelines do not define the standard of care. One challenge in medicine, like in law, is that every case is unique in some dimension. Clinical guidelines constitute a proposed template of how one might proceed in the generic case. The expert’s role here is to explain ways in which the guidelines are relevant to the case at hand. Now, given the above, if guidelines change - as they always do with accumulating evidence - that does impact whether the specific guidelines are relevant to a case. However, I do not feel that the evolution of guidelines has any meaningful impact on the occurrence of legal cases.

 

What common misconceptions do those outside the industry have about heart surgery; how does this pose difficulty on your role, especially as an expert witness?

The most common misconception I encounter is a lack of appreciation as to how every cardiac surgical procedure is unique. Each case presents its own unexpected challenges, and surprises are plentiful; however, the key distinguisher of the reasonably prudent surgeon is the ability to cope and address the surprises as they arise.

 

Are there any ways in which the legal industry in the US could adapt in order to make your role as an expert witness easier?

For any medical expert, I think the most helpful change would be for the hiring attorney to offer the following in writing, which is really a truncation of the usual IRAC (Issue, Rule, Application, and Conclusion) format for evaluating cases: Provide your expert with all the ‘I’s and ‘R’s before he reviews the case. In other words, formalise all the issue questions and provide all the applicable rules of law for the state in which the alleged tort occurred. Making the issues and rules concrete will allow you to get the most out of your expert.

 

In what instances are reaching a conclusion of opinion difficult, and how do you overcome said difficulty?

Obtaining clarity regarding the standard of care and its breach can sometimes pose difficulties. For any alleged breach, I ask myself the following questions: (1) Could this happen to me? (2) How would I react in this situation? (3) Is the conduct and/or reaction a representation of what a reasonably prudent surgeon would do? An expert needs to keep at the forefront of their mind that they need to continually ensure that their own bias about how something should be done does not cloud their judgment of what a reasonable surgeon might do. These issues are clearly distinguishable, and the surgeon who does not take care to clearly observe and apply this distinction will not serve their client, or justice, well.

 

Arie Blitz, MD, MBA

Cardiac Surgeon, Consultant, Forensics, JD Candidate

http://www.linkedin.com/in/ArieBlitzMD

216-798-2260

The combination of my medical degree, management degree, and ultimately a JD degree provides me with a unique and advantageous vantage point from which to provide expert witness services. In my experience, there are deep chasms that exist among the clinical, administrative, and legal fields in terms of communication and thought processes. My background in the three fields allows me to communicate more effectively and logically, thereby crossing and bridging the chasm. 

I frequently lecture on the role of the expert witness in medical malpractice cases. One of my goals during these presentations is to convey to the audience a sense of responsibility.  The role of the expert witness is to measure the acts of the defendant according to the standard of care that the expert himself brings to the table. In this process, it is imperative to follow the code of being honest and objective. The expert should neither be a hired gun nor perceived as one. If one adheres to such a code, one brings tremendous value and integrity to the process.

 

 

For many years in the past, Italy was considered a country for counterfeiters. On the contrary, as further mentioned below, the growing consciousness of the importance of the IP rights in Italy, together with the modern legal instruments now in force, make Italy increasingly aware of IP rights and increasingly effective in their legal protection.

Furthermore, Italy is taking very seriously the changes that are embracing the IP world over the last years. The industry – and in particular those sectors of the industry involved in the protection of the world-known “masterpieces” of the Made-in-Italy culture - are claiming for short-term decisions and verdicts, for stable and settled case-law, for customs safety and customs task-forces devoted to the fight against counterfeiting and organised-crime. Andrea Marietti and Nicola Tarantini expand on this, by saying: “The new system of opposition against trademark applications is working extremely well, and it should be seen as an essential and vital remedy to the long-standing backlog of the local Court of Justice and Tribunals.

“We are ready to take and win the challenge, and we are striving for a possible introduction of the Administrative Cancellation action against registered trademarks as well.”

Both experts in the patent world, Andrea and Nicola speak on how Italy has progressed over the years in regard to their patent applications. They also speak on how the Unitary Patent Court will change the patent industry, and the changes the EPO could make which would benefit their respective jurisdiction.

 

What changes have you witnessed in the past few years regarding patents in Italy?

In recent years, I have observed a growing awareness by national industries in Italy, of the importance of patents and IP rights. Following the regulatory reform of July 2007, which introduced the substantive examination of national patent applications, and thanks to the growing competence and quickness of specialised IP Courts, alongside the effective EU and national customs rules concerning importation of alleged counterfeiting products, patents in Italy are considered more and more as an indispensable tool for competition. Italian manufacturing companies that got through the financial and industrial crisis of 2008 and 2012, due to their ability to sell "made in Italy" abroad, have deeply realised that IP rights, and in particular patents, play a key role in allowing growth of their market share.

 

The Supreme Court in the US rules that patent law cannot stop the resale of products; as Thought Leader, what is your stance on this ruling?

As a devoted patent attorney, I would consider first the interest of the IP right owners, and thus I would say that the thesis of the US Supreme Court in Impression Products, Inc. v. Lexmark International, Inc. cannot be shared. Indeed, if we consider the spirit of modern patent laws and jurisprudence seeking to find a balance between the interest of promoting innovation by granting a time-limited monopoly to the inventor and the public interest, which is contrary to the establishment of any monopoly, it should be clear that this sentence of the US Supreme Court follows this trend.

On the other hand, I would remember that in Italy the principle of community exhaustion of the IP rights provides that once a product has been sold by or with the consent of the legitimate IP owner in the EU or in the EEA[1] (also outside Italy), the reselling of this product in Italy is no more subjected to the control of the IP owner.

US Supreme Court seems to have widened this exhaustion principle to any sale of a product by, or with the consent, of the IP owner outside the USA. Moot, but in line with recent legal trends.

 

 What is the most challenging nature of your role? How do you overcome this?

As a professional consultant, my role is not limited to providing a stand-alone service to my clients, but it usually encompasses all the technical (and sometimes legal) aspects relating to patents. This briefly means that clients fairly expect that I give them the best advice in any situation involving patents.

Anyway, as in any human activity, there is no the “right way” in the field of patents, while a number of “just presumably” correct ways is usually available. Choosing the “right way” is really challenging.

I think it is not possible to fully overcome the challenging nature of my role with clients, but the constant professional updating, both technical and legal, helps to give my clients the best advice I can provide.

 

What changes would you like to see the EPO make that will benefit Italy?

EPO benefits Italy, and in general Europe, by providing a central and well-experienced patent office and, above all, by providing a substantially uniform interpretation of the legal requirements for validity of patents which affects any single country of Europe.

Homogenisation across Europe of the assessment of the legal requirements of novelty, inventive step and industrial applicability for patents is a big merit of the EPO.

In my view, EPO is still expensive for SMEs, and particularly for Italian SMEs, which further have the burden to translate Italian language in one of the official languages of the EPO. A further reduction in the fees for SMEs would be a reasonable benefit for Italy.

 

Nevertheless, are there any changes you are looking forward to that are occurring in the next year?

The most important change that is foreseen in the next year in EU is the introduction of the Unitary Patent Court. The Unitary Patent Court would have jurisdictions over any dispute concerning European Patents ‘with unitary effect’ in those States that are member of the agreement on UPC.

Like the EPO, which made the assessment of validity of the patents in the European Countries uniform, the Unitary Patent Court could play the important role of standardising patent infringement evaluation across Europe.

Italy already ratified this agreement, but Brexit and doubts of some countries make the entry into force of the UPC agreement still uncertain.

 

What industry do you think suffers the most in regard to their IP and patent protection?

Considering the Italian industry, I would say that the fashion industry, the food industry and the industry of components are daily stressed by the global competition, and in particular by the wild competition of some eastern countries.

Patents and IP protection are sometimes marginally effective in contrasting such a wide competition, even for the non-negligible costs that IP enforcement involves.

 

Andrea Marietti
Italian and European Patent Attorney

Nicola Tarantini
Italian and European Trademark and Design Attorney

MARIETTI, GISLON e TRUPIANO S.r.l.
Via Larga, 16
20122 Milano (ITALY)
Tel. (+39) 02.86464387
Fax. (+39) 02.86463303
www.mgtpatents.com

 

Andrea Marietti graduated in Industrial Engineering at the Politecnico of Milan. Andrea qualified as a national patent attorney in 2001 and as a European patent attorney in 2003. In 2007, he got a post-graduate diploma from the University of Strasbourg in "Patent Litigation in Europe". He joined Marietti and Gislon in 1998 and continued his career with Marietti, Gislon and Trupiano as a partner. He was founder of Torner, Juncosa i Associats in Barcelona (2003) and of Fabiano-Franke in Lugano (2015). During his career, he dealt with a big number of different tasks in the patent field, ranging from patent drafting and prosecutions to FTO opinions and by parte expertise in patent litigations. Andrea has been often – and still is – appointed as a Court Technical Expert by the IP specialised Civil Court of Milano and Bologna for patent matter concerning his technical field. Andrea is also a tutor in post-graduate courses concerning patents held at the Politecnico of Milan. From 2013 to 2016 he was deputy member of the Professional Conduct Committee of the EPI (European Patent Institute).

Nicola Tarantini fully qualified in 1999. After having obtained his degree in Law at the State University of Milan, he immediately started dealing with issues related to the protection - also in criminal proceedings - of Intellectual Property rights. Nicola has twenty years of experience that he gained while working at some of the most prestigious Italian Patent and Trademark Firms as well as at one of the British leading firms in the field of the registration and protection of Trademarks, Design and Patents. The expertise gained during the exciting professional career of Nicola ranges through all brand and design protection activities worldwide; however, the main feature of his professional profile consists in the care and effectiveness by which his clients are assisted in all steps concerning the negotiation of agreements as well as in the drafting and completion of license agreements and / or settlement of disputes concerning Intellectual Property rights. Nicola has authored a number of publications in the field of Intellectual Property both nationally and in Europe - the last in terms of time being the article published on the March 2017 Newsletter of the IP Consultants Institute; Nicola has also organised and held seminars on the above-described topics in Italy, England, in the United States and in China. He is Member of the A.I.P.P.I), partner of ECTA and of L.E.S..

Marietti, Gislon e Trupiano is an IP firm dealing with all the activities and procedures related to obtaining and protecting industrial property rights (patents of invention, trademarks, industrial designs, models and copyrights). The company is the result of the merger, in 2001, of two companies "Marietti and Gislon" and "BREVETTI EUROPA S.r.l.", active in the same field since mid-70s’ and the beginning of 80’s.

 

[1] European Economic Area

We speak with Paul McCoy, a Partner at Morgan Lewis. Paul has approximately 1,850 lawyers in 30 offices around the world and is the global leader of the private equity fund formation practice at Morgan Lewis. In this area, he represents clients in three broad categories: (i) fund sponsors who are launching private investment funds and myriad customized private capital formation structures in all private asset classes, (ii) institutional investors negotiating very large investments in private investment funds and (iii) buyers or sellers in the secondary market trading their existing interests in private investment funds. Among his clients are two global investment banks, several thought-leading private foundations, three of the largest US state retirement pensions, two US-based insurance companies, and a prestigious fund-of-funds.

With such an impressive background in private equity, Paul reveals the key behind his vast amount of achievements and how sacrifice ultimately feeds the eyes towards the path of success.

 

What has been the biggest challenge you have faced in order to be as established as you are now?

I cannot identify any one biggest challenge. Rather, I believe my position today is the result of an accumulation of small sacrifices. Every time a client needs an answer or a deliverable on a timeline that will require me to work very late at night, over the weekend or on a holiday, I must decide if I am interested in doing so. Looking back on an accumulated basis, those sacrifices add up. A lot of people think they know, in some vague sense, what it means to make sacrifices, but few stop to think of what it really means. In my career, it has meant missing out on other aspects of life. Frankly, among the countless evenings, weekends and holidays that I sacrificed in service of my clients, there are three or four that I genuinely regret. So, for me, the biggest challenge has been the sacrifice of personal time in the aggregate over many years.

 

What advice would you offer aspiring lawyers, in order to help them overcome potential hurdles?

My response dovetails with the answer above: my advice is to dedicate a reasonable portion of your personal time to learning about the area of law in which you are focused and the broad context in which your clients’ needs arise. I can tell immediately if a young lawyer will succeed. Those that buy a relevant legal treatise out of their own money and spend time on their weekends reading it will succeed. Once you have a deep knowledge of law and a strong grasp of the context in which your clients’ needs arise, you are well positioned to do the enjoyable part of practicing law – providing sound advice to guide clients through complex matters.

 

What was your main motivation behind specialising in Private Equity and Corporate Law?

I have always been interested in how society has organised itself. I recall learning at a very young age the key distinction between communism and capitalism – essentially that capitalism is the private ownership of the means of production. That made me very interested in how such private ownership was implemented, which of course led to learning about corporations, financial instruments and transactions. I then realised that knowing the what still left me ignorant of the how. Laws are needed to ensure fairness and protect against exploitation and fraud in relation to how the private right of ownership operates (i.e., capitalism). This was extremely appealing. Add to all of this the raw challenge of negotiating on behalf of clients when huge amounts of money are at stake – the private fund matters we handle are routinely hundreds of millions of dollars and not infrequently billions of dollars – and you can see why this area of law is very appealing.

 

As a global leader, can you explain to Lawyer Monthly ways in which you must be ahead of your game to be globally based?

As the global leader of the private equity fund formation practice at Morgan Lewis, it is critical that I must constantly canvas developments in law and developments in the market that are important to our existing clients and that might be relevant to potential clients. It is very important that I understand the history of the private funds market as well as the trends, because you cannot really understand trends without understanding the history. The interconnectivity of markets around the world make this extremely interesting, as trends differ regionally while affecting each other globally.

 

Your clients include some of the world’s most prestigious funds of funds, global investment banks, state government pensions, world leading private foundations, insurance companies, private equity-styled real estate funds and sovereign wealth funds; can you walk Lawyer Monthly through how you prepare yourself for these clients, to ensure the process is smooth for them?

First and foremost, I listen to my clients and ask questions to make sure I understand their issues and goals. Many of my clients are operating at the very highest levels of the global asset management community; they have extraordinary intelligence and dedication – these are people making investment decisions in respect of billions of dollars. My greatest value-add is to find creative solutions to address my clients’ issues and help my clients achieve their goals. To do this, I must listen carefully and ask questions.

 

You are based in many regions, which do you think is the most competitive at this current time, in regard to private funds? Do you predict this to change over time?

The reality is that the private fund market is truly global, and competition is fierce everywhere, and it will always be so. That is bad news only if you view the world as presenting a finite amount of opportunity. I view the world as having an infinite amount of opportunity. To approach a world of infinite opportunity, Morgan Lewis has created a platform to represent clients in connection with private fund transactions all over the world. We have teams in North America, Asia, Europe and the Middle East handling private fund matters throughout the world in all aspects including: without limitation, fund formation; the secondary sales of private fund interests, individually, or as portfolios; customized private capital formation structures, such as complex separate accounts, captive funds, SMAs, IMAs, funds-of-one, co-investments, platform arrangements, consortia, and joint venture arrangements. Furthermore, our capabilities span all major private asset classes, including traditional private equity, venture capital, real estate, infrastructure, debt, real assets and more.

 

Throughout your years of practice, how have you seen investment trends change? What accounts towards these changes?

A very clear trend in private funds is that large investors are demanding increased customisation for their investments. The investment managers, as a result, are increasingly creative in finding ways to customise their financial products. The cause of this trend is multifaceted, but distilled to its most basic elements, the supply of investment management talent in private equity has increased to the point where investors have many, many options when deciding where to put their money to work. Investment managers are therefore using customisation as a means to differentiate themselves in a crowded market.

 

If you had the power to, what regulations would you change to enable your role to be easier? I would reduce the entirety of the securities laws and regulations to a simple law that prohibits engaging in fraud. I would then leave it to the courts and legal processes to resolve disputes. Adding a new regulation every time there is a bad actor is a fool’s errand that asymptotes near an infinite number of regulations, without adding substantively to protecting investors. Meanwhile, each additional regulation sends shockwaves through the industry as well-meaning market participants scramble to make sure they are in compliance with seemingly endless minutiae coming out of key government hubs.

 

You have dealt with several private fund sectors – which sector do you enjoy working with the most and why?

For me it is a three-way tie. First, I very much like representing funds-of-funds, because they have the most sophisticated and balanced view of the market. They must raise funds from investors, like any fund manager, but then they invest such money into other funds and as a result they experience the same frustrations as all other investors. Seeing both sides of the market is healthy. Second, representing real estate funds is very enjoyable, because real estate funds are often the most complex fund structures due to arcane tax rules that apply to real estate. Third, I very much enjoy representing pensions and foundations in connection with private funds, because such clients believe in missions greater than self-enrichment – the investment activity is a means to a goal beyond just turning money into more money.

 

What advice would you offer entrepreneurs that are seeking venture capital?

Venture capitalists might invest in a high-quality team with a mediocre business idea, but they will never invest in a mediocre team regardless of how high quality the business idea might be. Human talent is everything.

 

Is there anything else you are hoping to achieve in your professional career?

I have two key goals remaining: first, I would like to do my part in making the practice of law enjoyable for the generations who come after me. Simple things, that might seem obvious, go a long way. I encourage young lawyers to take vacations and not to worry about work while on vacation – nothing can be poured out of an empty cup. This only works if young lawyers are proactive in working with me to find coverage for matters while they are on vacation. Second, I would like to teach young people everything I know about navigating a career in law, to help them chart a course from the time they are in high school, through the day they wake as a partner in a major law firm. I had to find my way in the dark and it would be rewarding to shed some light on the topic for those coming after me.

 

What is the thing you like least about your career?

Many lawyers believe their role is to deceive others, in some fashion. Some will even boast of how they tricked an opposing lawyer or adverse party, whether through sneaky drafting of contracts or purposefully misleading statements during negotiations, or otherwise. I strongly disagree with this approach to practicing law. It undermines the reputations of lawyers, but much more importantly, it damages society. It puts an additional layer of misunderstanding between the parties. There is usually some level of misunderstanding between parties or they would not need lawyers in the first place, but for a lawyer themselves to purposefully add additional misunderstanding is wrong. The lawyers should be working to reduce, not increase, the amount of misunderstanding. On very rare occasions, clients have asked me to be devious in my approach to representing them and I have declined them. If some lawyers do not have the courage to do the right thing, they should at least have the courage to refuse to do the wrong thing.

 

What is the thing you like best about your career?

My clients and my colleagues are all extremely intelligent and motivated. They have pushed me to perform at the very highest level of my abilities. They have taught me endlessly; every day I learn from them. My proudest moments are when I am able to return the favour. When a client considers me a trusted adviser, or a colleague comes to me with a complex problem, that is when I enjoy my career the most. It is what I like best about my career.

 

Paul C. McCoy
Partner
New York
101 Park Ave.
New York, NY 10178-0060
United States

+1.212.309.6220
paul.mccoy@morganlewis.com
www.morganlewis.com

 

Paul C. McCoy represents and counsels clients in the development of, and investment in, private investment funds and myriad customized private capital formation structures in all asset classes. Global leader of the private equity funds practice for Morgan Lewis, his clients include some of the world’s most prestigious funds of funds, global investment banks, US state government pensions, world leading private foundations, insurance companies, private equity-styled real estate funds and sovereign wealth funds.

 

Morgan Lewis is always on—providing high-quality litigation, corporate, labour, and intellectual property services to clients across industry sectors and regions around the world.

 

 

Ways to Combat Stress – written by Roshina Khan

 With Lawyer Monthly focusing on the importance of mental health in the workplace, we decided to hear from Roshina Khan, Founder of Avid Coaching, on ways in which lawyers can combat stress. Many of you working in the field of Law have at one point or another encountered either being stressed yourself or know of a colleague who has taken time off work due to stress. So, you don’t need to be reminded of how much stress is prevalent in your profession today.

 

 Just in case you are one of the few who has managed to escape the stress trap here are a few facts:

·         50% of the profession felt stressed

·         19% suffered from clinical depression

·         1/5 suffering from avoidable and preventable mental ill health

·         95% out of 2,226 solicitors reported stress to be severe or extreme

·         39% said no support was offered by employers

·         35% were not aware of support available

·         36% of stress related calls to LawCare from junior solicitors

What Causes Stress?

Stress is a natural physical state when our body thinks that we are in danger which ignites the flight or fight response to situations. Stress hormones cortisol and adrenaline are released and the function of our body changes. Glucose and fats are released to give us increased energy. Our blood pressure rises, our muscles tense up and there is a change in our cognitive function as our emotional response is heightened leading to reduced decision making.

Are you thinking - I Work Best Under Stress?

Think again! The stress described above is not short time stress that gives you a short-term adrenaline rush to perform. We are talking about long-term stress that prevents you from thinking straight leading to irrational thinking, poor decision making and poor judgement.

A Junior Lawyers Division’s study “Resilience and wellbeing survey report’ (2017), states that 53% of respondents reported that they nearly made a mistake due to stress.

Roshina says: “This is not to be taken lightly as I wonder how many senior lawyers make errors due to stress that go unreported or increases the time they need to correct mistakes?”

Why is this Different to other Professions?

It has been pointed out that the legal profession is lagging behind other industries when

comes to alternative ways of working. Many people still have to work long hours spent in

an office environment on the phone or on a computer without the flexibility of home

working (Jackson, K., 2016).

It has also been highlighted that jobs, which are considered to be the most stressful such

as A&E, fire service and paramedics have the lowest reported levels of stress (Jackson, K.,

2016).

Why?

There is no stigma attached to being stressed. It is acknowledged and spoken about

openly.

 

What needs to Change?

Roshina lists below many changes which would help lawyers to tackle stress. She advises, “A starting point will be to start talking about stress. Alongside this, further points which would help, are:

employers to offer support; individuals to support each other, and introducing life coaching to support staff.”

Four Things That Lawyers Can Do?

·         Get to know yourself both physically and mentally so that you can identify the first sign of stress

·         Understand the difference between short-term and long-term stress for you

·         Follow the Seven Simple Steps to Combat Stress

·         Get yourself a Life Coach to help you identify and develop strategies for living a stress free life

Seven Simple Steps to Combat Stress

1         Sit in a comfortable position, set your timer for 5 minutes (make sure your buzzer sound is a gentle sound) and close your eyes.

2         Take a deep breath in hold it for a second and breathe out hold it for a second and repeat 3 Times.

3         Now start to breath normally keeping your eyes closed and as you breathe think of the most peaceful place you have been. Visualise that place, hear the sounds around you in the place, feel the air of that place.

4         Focus on how you feel in this place.

5         Just relax and enjoy this feeling until you hear the sound of your buzzer

6        On hearing the buzzer take a deep breath in hold it for a second and breathe out hold it for a second and repeat three times and slowly open your eyes.

Do make sure that you do this exercise at least once a day so that you get your mind and

body used to this state. Remember this exercise can be done anytime of the

day and as many times as you want.

If you have time why don’t you gradually begin to increase the time spent on steps 4-7

and see if you can reach 20 minutes in this peaceful state.

About Roshina and Avid Coaching

 Roshina Khan founded Avid Coaching after having a career spanning over 27 years in project management working with small and large organisations. Roshina realised that you can focus on processes make them lean and change operations but the key to success is people and their mindset.

Roshina found that ‘self-belief’ was a key factor that influenced individual performance.  When you begin to doubt your own ability and capabilities, this leads to lower levels of performance.

In addition, Roshina realised that in situations where a person is highly stressed, facing change, multi-tasking, task saturation or in a job that does not fit values, behaviour changes. Behaviour changes include how you communicate, your ability to make rational decisions, performance, attitude and accuracy of work.  This can have a knock-on effect on the opportunities you have to progress up the career ladder and sometimes cause you to miss opportunities or quit.

Roshina understood that changing your mindset could lead you to become a high achiever. However, realising that it is not easy to change your mindset on your own but with the right coach you can make this happen for you.

Roshina who has a degree in Psychology, Masters in Health Management decided to follow her passion and her journey from senior project management to an Executive Breakthrough Coach began. After many years of completing additional training and coaching clients Roshina founded Avid Coaching.

Roshina is using her extensive project management experience by bringing processes from project management into her Executive Breakthrough Coaching programmes. 

roshina@avidcoaching.co.uk
020 7183 2284
www.avidcoaching.co.uk

Earlier this month it was revealed that the Law Commission for England and Wales believe the current laws surrounding wills and inheritance are outdated, with allusions to using electronic communication as a future means of validating a will. In this article, Bespoke Support Network explores the pros and cons of implementing our wills via text. 

Technology increasingly allows us, and leads us to expect, immediacy from almost everything we do. With consideration now being given to how we use technology to revolutionise how we leave our final wishes, we should consider whether it’s appropriate that we should.

It is commonly claimed that just 60% of UK adults have written a will by the time they die, and the implication is that even fewer have a will deemed to be valid. In an age where we are significantly more likely to communicate with each other by sending an e-mail or text message than we are to send a letter, it isn’t unreasonable to conclude that, just because a person’s last wishes are detailed electronically, they are to be deemed invalid.

To add further comment on this issue, we hear from Darren Diamond, the Director of Bespoke Support Network, who explains how the difference between paper and digital mediums needs to be addressed: “For me the answer to this hinges on being able to prove that the wishes themselves are indeed the true wishes of the will’s testator, that they were of sound mind, and that they were not under any undue influence.

“In theory, it makes trivial difference whether an individual’s wishes are committed to paper or digitally recorded. In practice, it is important that we consider the differences between paper-based and digital mediums, the advantages and disadvantages of both, and what criteria need to be enforced regardless.”

Committing your last will & testament to paper has long been the right of us all in the UK. However, all too often it is something that people know they should be doing but often due to indecision, a lack of information, or in some cases simply because it makes us have to confront our own mortality, actually drawing up the will is postponed indefinitely.

The first question regarding a change in the law is: would allowing an individual to commit their last wishes to a text message remove any of their indecision, increase their knowledge, or mean that they don’t have to think about dying? The answer to this is no, of course not. The only way to overcome any of those things is to conduct quality research, and preferably speak to a professional to discuss your individual circumstances.

If around 40% of UK adults die without making a will, could allowing a person to write a will by text message or e-mail allow some of those people to leave their wishes immediately on their deathbed or when faced with imminent life-threatening danger? Well yes, it could. However, there are a series of things we should consider in relation to those scenarios.

It is important that we can be sure that a will by text or e-mail written under those circumstances has recorded what the person actually wanted. In a life-threatening situation, or on our deathbed, there are likely to be complications making it an impractical time to give full consideration to the implications of our actions. The events unfolding around us may influence us to make a rash or uncharacteristic decision.

We must then consider undue influence. For example, it is ease of use and immediacy, which has led us to commit our last wishes to text message. These beneficial qualities could also lend themselves as an opportunity to be exploited by others who wish to pressure us to favour them for their own gain.

There are also concerns about the safety of stating our wishes via mobile phone and e-mail. It is vital that we question how secure our data would be, who holds it, how it is used, and whether it could be subject to be tampered with. If this could be ensured, this must be one of the criteria for any implementation of digital mediums for a last will & testament.

It’s also important to consider the role of a witness through 21^st century communication, as they carry out an imperative role as independent invigilators to the authenticity, mental capacity, and willingness of a testator when a will is attested. This begs the question, how would we go about witnessing a text message or email? A similar question must then be asked about how we can authenticate authorship of any last wishes committed to a text or to an email.

So, should we simply stick to what we know and commit our last wishes to paper and sign them in ink? Not necessarily. Many of the issues with implementation of last wishes by text or email lie also in paper-based wills to a greater or lesser extent. There is also the added issue that we frequently only have a single signed copy, which could be lost or destroyed inadvertently.

 “My conclusion is that we should consider moving with the times, but it must not be at the expense of putting our legacy at risk. Many questions need to be answered before we can make any significant changes, and I can’t see those being forthcoming for some time.

“In the meantime, don’t put yourselves in the position where you cannot adequately consider what your last wishes actually are. Speak to a professional, get some good advice, and don’t leave it too late.”, says Darren.  

 

 

Bespoke Support Network has built you a solid, trusted platform to cope with all of your financial needs. Before we pass your details to any business, they are stress tested with our in-house due diligence, to ensure they’re a quality customer centric firm, who have your best interests in hand. Whether that is a chartered firm, family run business we ensure they are experts in their respective field, so you don’t have to spend the time researching yourself. We have no particular affiliation to any firm, other than that they are the most suitable for you. We regularly review our providers to ensure their standards remain of the highest quality for you. 

The healthcare profession offers endless opportunities to the human race and is a profession that will always continue to serve its people. This month, we speak with Ayesha Mehdi, who is a Principal Attorney representing physicians, dentists, and other health care professionals, along with various healthcare and closely held businesses in connection with healthcare matters. She discusses where she sees the healthcare profession progressing in the next few years, and the challenges her and her clients have overcome.

 

Healthcare practitioners are subject to scrutiny, so how do you determine which cases you decide to take on?

I focus my transactional practice on representing practitioners, along with various healthcare businesses in connection with corporate, transnational and healthcare matters. I take on matters pertaining to: corporate practice and structure; fraud and abuse, such as the False Claims Act, the Anti-Kickback Statute, the Physician Self-Referral Law, the Exclusion Authorities, and the Civil Monetary Penalties Law; health information privacy and security (HIPAA and HITECH Act), and healthcare reimbursement and collections.

You advise your clients on several matters, which rights and regulations are they often unaware about?

Since my clients are sophisticated professionals, they are generally aware of their obligations and restrictions under the law, and seek counsel on specific issues within the myriad of laws and regulations applicable to them.

As Thought Leader, can you share the most challenging case you have dealt with and how you overcame the challenge that was presented?

Thank you for considering me as a Thought Leader! Given the strict criminal and civil penalties, the stakes are very high in healthcare. My most challenging matter to date has been with the representation of multiple physicians, as well as a hospital, in a joint venture deal with a global management company.

I overcame the challenge by further educating myself on the issues to be able to think through the complexities and nuances, and understanding the big picture, as well as the details. I also sought advice from more experienced healthcare attorneys to think through alternative paths to goals.

How are you hoping to see the healthcare profession progress in the next few years? Are there any changes in regulations that are rumoured to happen, to which you are apprehensive about?

Healthcare is one of the most interesting, dynamic and clamorous industries in the United States. Therefore, uncertainty, along with opportunity, are likely to continue in 2017 and beyond. Apprehension stems from the shortage of healthcare practitioners, as well as the largest factors affecting costs and reimbursement, such as: MACRA implementation, Medicaid reimbursement, shifting payment models and drug pricing.

What was your main motivation behind specialising in healthcare law?

The specialisation theory which was devised by Adam Smith, the father of economics stated, in essence: the more specialised we are in a certain field, the more value we bring to society.

I have a strong interest in business and economics, and given the meaningful nature of healthcare, I have been interested in healthcare entrepreneurship since I was a business major in college.

Along with my juris doctorate degree, and training with some of the top healthcare firms in the country, I went on to pursue a graduate degree in health services administration. I have successfully managed an oncology practice, and to stay on top of healthcare laws, as an active member of the American Health Lawyers Association, the Health Care Compliance Association, the American Bar Association's health and business law sections, and the State Bar of Nevada's insurance and health law section.

How do you deal with clients differently, depending on if they are hospitals, physicians or small health care owners?

The differences among clients arise from their levels of experience in the business of healthcare, as well as their resources. Regardless, I deal with all my clients as a professional focused on delivering outstanding service and helping them achieve their goals.

Anything you would like to add?

I can't stress enough on the importance of effective communication with clients. In the words of George Bernard Shaw:

“The single biggest problem in communication is the illusion that it has taken place.”

I have found that clear, concise and empathetic counsel is key to a fulfilling and thriving legal practice.

Ayesha Mehdi

Principal Attorney

www.frontierhealthlaw.com

 

I am the Principal Attorney at Frontier Health Law, a boutique healthcare law firm based in Las Vegas, Nevada. I am on the Board of Governors at the University of Kansas School of Law, and have taught health law at the University of Nevada Las Vegas Department of Health and Policy, for two years.

 

Frontier Health Law exclusively represents health care providers and entities in Nevada, and throughout the United States, as permitted by law. Our sole focus on health care law allows us to be well-versed in many of the common issues and concerns pertaining to the health care industry. Our experience, diversity, and understanding of the health care industry makes us unique in our ability to effectively and efficiently serve our clients. We know health care. And that’s the Frontier Edge.

In June 2017, the new Money Laundering, Terrorist Financing and Transfer of Funds (Information on the Payer) Regulations 2017 (MLRs) came into effect. They require more effort to combat money laundering and terrorist financing on the part of law firms and other ‘relevant persons’ – in particular to carry out thorough Customer Due Diligence (CDD), including a search for adverse information on prospective and existing clients. Barrister Jane Jee explains the impact the new regulations will have on the legal sector:

 

Lawyers will have to take the law more seriously!

It seems that when it comes to a choice between accepting a new client and the obligation to carry out thorough CDD checks, too many lawyers put profit before compliance. However, that may be more difficult going forward for various reasons:

The government has long been unhappy with inconsistency in the way the legal profession is supervised for Anti-Money Laundering (AML) purposes and is introducing a new supervisor of regulators, OPBAS, to ensure consistency of supervision and fewer loopholes

Pooled client accounts (PCAs) must be risk assessed and subject to CDD – not simplified due diligence (SDD), unless the account is proven to be at low risk of money laundering

Law firms are increasingly recognised as a relatively easy way to launder money. The Law Society has said: “Compliance with money laundering obligations is one of the greatest challenges for solicitors in the UK today”.

The 'beneficial owners, officers or managers' of law firms have a year to apply to the Solicitors Regulatory Authority (SRA) for approval, which must be granted unless they have been convicted of a relevant offence. Acting as a beneficial owner, officer or manager of a firm without approval after 26 June 2018 is a criminal offence (unless you have applied for approval and it has yet to be determined). Sole practitioners also need to apply for SRA approval.

In a recent report from risk management software firm, Accuity in collaboration with the Law Society, ‘The Challenges of AML for Law Firms 2016’ (published before the new regulations came into force), law firms considered their four greatest challenges to be CDD-related, namely verifying beneficial ownership, establishing a client’s source of wealth, performing ongoing due diligence and getting fee-earners to take responsibility for client CDD. The new regulations continue to stress that firms are not doing enough to meet their CDD obligations, despite the perceived challenges.

 

The complex nature of regulation of the legal sector

Under the MLRs, theoretically each regulator of lawyers including the Law Society - the regulator with the largest remit covering both law firms and independent legal professionals - has to publish guidance on the MLRs. However, the Law Society’s website, as of 23rd June 2017, says:

The Law Society's Money Laundering Task Force is working with representatives from across the legal sector to update [this practice note] to take into account the changes that will be brought about by the MLRs. The government's decision that there is to be only one HM Treasury-approved piece of AML guidance per sector going forward has meant the sign-off process now requires the agreement of 11 legal sector regulatory and representative bodies across the UK. While we had hoped to have had the guidance approved and published ahead of the commencement of the new MLRs this has unfortunately not been possible.”

One might have expected that the legal sector would be able to navigate its way through the complexities of AML laws more easily than most. Surprisingly, educating staff about reporting compliance and AML breaches has proved challenging for many law firms.

 

PCAs under more scrutiny

The Treasury’s latest National Risk Assessment in 2015 highlighted that law enforcement agencies in the UK had seen cases where PCAs had been used to provide personal banking facilities to criminals, to move and store large sums of criminal proceeds and to obscure the audit trail of criminal funds. If a law firm’s accounts department has to ask around the firm about monies received from third parties who are not known clients, this should raise eyebrows and lead to better on-boarding practices. The practice of accepting funds from third parties has obvious money laundering risks. Payments on account may also come under scrutiny.

Law Society rules applicable to accounts opened by law firms and operated as client accounts state:

“You must not provide banking facilities through a client account. Payments into, and transfers or withdrawals from, a client account must be in respect of instructions relating to an underlying transaction (and the funds arising therefrom) or to a service forming part of your normal regulated activities.”

Given that there was no national consensus that PCAs always present a low risk of money laundering, the government view is that PCAs should not be automatically subject to SDD, but rather a risk-based approach. The government has therefore included PCAs in the MLRs on that basis, underlining the focus on a firm’s risk-based approach.

 

An increase in enforcement action?

In a case brought by the Solicitors Regulation Authority (SRA), the partners of Clyde and Co solicitors admitted they allowed a client account to be used as a banking facility, acting against SRA accounting rules and in breach of existing obligations under the then-current money laundering regulations (2007).

Clyde was fined £50,000 and corporate partners Christopher Duffy, Simon Gamblin and projects partner Nick Purnell each received fines of £10,000. The fine was handed down following a hearing before the Solicitors Disciplinary Tribunal on 21 March 2017.

With the increased focus on AML enshrined by the new regulations, and the upcoming Financial Action Task Force’s Evaluation of the UK's AML and counter-terrorist financing frameworks in 2018, the regulators will be keen to take a firm hand to lawyers who fail to comply with their AML obligations.

 

Conclusion
Whilst all ‘relevant persons’ are impacted by the MLRs and need increased documentation on risk assessment and CDD processes, the legal sector should be leading the way on implementing and upholding AML regulation. Law firms now have an excellent opportunity to adopt ‘best practice’ within their sector and demonstrate thought leadership and integrity to all market sectors affected by the MLRs.

The new legislation will potentially slow new business and could be costly. Law firms should take the need to search for adverse information on prospective and existing clients seriously, but unless technology is harnessed to help gather information to assess the risk posed, the cost of compliance will be high. This is where emerging regulation technology can assist.

 

Jane Jee
CEO
www.kompli-global.com
On Twitter: @kompliglobal
On LinkedIn: linkedin.com/company/kompli-global

 

Jane Jee is the CEO of RegTech firm, Kompli-Global. Jane passionately believes that good compliance makes good business sense because companies who gather data on customers can often sell to them more effectively. After qualifying as a barrister, Jane gained broad experience in card-based, e-money, internet and mobile payments, having worked in commercial (marketing) and legal roles in the sector for over 20 years. She was Managing Director at Access, the credit card issuing and acquiring organisation, and later became Divisional Manager at Mondex International where she became familiar with e-money regulation. Jane is now focused on delivering Kompli-Global’s unique Compliance Service which fully meets the regulatory requirements and enables clients to take on new business and retain it, confident that they have access to the best available information and expertise to fulfil their compliance obligations.

Kompli-IQ™ - is a multi-lingual, licensed software as a service (SaaS) search platform. Using proprietary machine learning technology and natural language processing, Kompli-IQ^TM interrogates a wide variety of global data sources on the web for published adverse information on individuals and entities. This makes due diligence fast, simple, consistent and affordable for any business with Know Your Customer (KYC) and Anti-Money Laundering (AML) obligations.

The gold standard in due diligence reports:

Customer Due Diligence (CDD) reports - The result of thorough interrogations performed against a comprehensive range of public domain information sources (recognising that a single source isn’t sufficient), employing human investigatory abilities to deliver a written CDD report on a target subject in any language.Enhanced Due Diligence (EDD) reports - Specialist investigation delivers a highly detailed and customised Enhanced Due Diligence (EDD) report with reference to clients’ requirements and direction, and specific focus on red flags identified at the CDD level.