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New statistics from the Direct Access Portal, the official Bar Council-backed free-to-use directory of barristers, show that there has been a surge of interest by the public and small businesses going directly to a barrister for help with their legal problems.
Figures just released show that from 1st July 2016 to 1st July 2017, the public searched for a barrister almost 150,000 unique searches for a barrister on the DAP.
While barristers in England & Wales are predominantly a referral profession and therefore are referred work from solicitors rather than directly from the public, there is growing popularity in the profession to do direct access work and deal directly with clients, potentially reducing clients’ legal bills in the process.
Malcolm Cree, Chief Executive of the Bar Council, said: “Traditionally, a member of the public would go to a solicitor with their legal problem and the solicitor would turn to a barrister when needed for their expertise and advocacy skills. That remains the way most barristers work today, but several thousand barristers are now trained to take work directly from the client. The Direct Access Portal statistics indicate this approach is gaining traction with the public and members of the profession. Potentially, by going directly to a barrister a client could save money because they don’t have to pay a solicitor as well. Barristers are predominantly self-employed and therefore have lower overheads and may cost less.
“There will be many cases where the barrister cannot take on the work and will refer it to solicitors. However, direct access does provide an alternative way for the public to access legal services rather than via the traditional route.”
Top searches by legal problem
The DAP statistics also revealed which areas of law the public were seeking help from a barrister for.
The top 10 areas of law were:
Search for a direct access barrister, arbitrator or mediator in England & Wales at www.directaccessportal.co.uk
(Source: The Bar Council)
Professor Patrick Minford believes scrapping tariffs could lead to a huge boost as the European Council could delay #Brexit talks in October if not enough progress is made.
A number of animal charities, Dogs Trust, World Animal Protection, Friends Of The Animals and Heart Research UK are disputing a grieving partner’s claim to the £340,000 estate of Tracey Leaning, who passed aged 54 in 2015.
According to reports, Leaning decided to change her Will to leave her £340,000 estate to her partner, Richard Guest, provided that he cared for her three dogs, scotties Tilly and Eva and Cavalier King Charles spaniel Ben. In the previous Will, eight years before (2007), her estate was left in full to the charities. The validity of the later Will is now being challenged by the charities.
Guest has already spent over £10,000 in legal fees against the charities. According to the Daily Mail he said: “They have put me through hell. I’ve had to relive my loss and face financial hardship to defend the wishes of someone I loved. I almost lost the will to live.
“It was only the realisation there would be nobody to care for Tracey’s dogs and the fact that she was relying upon me to do so which kept me going.
“Thinking they may end up alone in an animal shelter, or separated, would have broken her heart. It’s ironic that three animal charities are pushing this case when all I want to do is fulfil Tracey’s heartfelt desire that the dogs stay together in a familiar place.
“They are trying to say the second will is invalid because the paper with the signature on it wasn’t stapled to the other part, but it was in the same sealed envelope and was only opened by her solicitor.”
Chris Gambs, Associate Solicitor at law firm, Coffin Mew, said this to Lawyer Monthly: “A number of animal charities are disputing a Will which saw them cut them out of the previous version.
“According to reports, Ms Leaning decided to change her Will to leave her £340,000 estate to her partner, provided that he cared for her three dogs. In the previous Will, eight years before, her estate was left in full to the charities. The validity of the later Will is now being challenged by the charities.
“On the face of it, this is a “winner takes all” case, which the deceased would no doubt have been saddened to see, when the welfare of her animals was at the heart of her intentions.
“This case demonstrates the tensions that can arise between often wealthy charities with specialist lawyers to protect their interests and the potential beneficiaries of an estate who face receiving no inheritance or a much smaller interest than the charity.
“The recent case of Illot in relation to the Inheritance Act, rightly highlighted that charities depend heavily on testamentary bequests for their work and as such do not have to justify need in Inheritance claims. However, it might now seem that the balance is too far in favour of the charities.
“There is no doubt that giving to charity should be encouraged, but disputes such as this demonstrate the benefit of Wills being professionally prepared and regularly reviewed, particularly where the value of estates is swelled by house values.
“The death of a loved one is distressing enough without also having to endure a challenge to their Will.”
Who would you have the estate be passed to?
Prime Minister, Theresa May, has confirmed that following Brexit and the implementation of the Repeal Bill, the Court of Justice of the European Union (CJEU) will no longer have jurisdiction over UK courts, making the Supreme Court the 'ultimate arbiter' of UK law.
Emma Stevens, Solicitor at law firm Coffin Mew, told Lawyer Monthly: “A key consideration for UK Courts will be the extent to which judges are still required to consider Court of Justice of the European Union CJEU decisions in relation to domestic law following Brexit. UK Judges currently consider relevant decisions of other international courts, such as the United States’, where it is appropriate to do so. This means they will likely continue to have some regard for CJEU rulings, even though they will not be bound by them.
“UK courts are well-established and have a strong international reputation. At present, it is not uncommon for parties, both in the UK and overseas, to stipulate contractually that UK courts will have jurisdiction over any disputes which arise and there is no reason for this to change following Brexit. If anything, the fact that the Supreme Court will now be the ‘ultimate arbiter’, without need for references or appeals to the CJEU, may further encourage this.”
Responding to the government’s Enforcement and dispute resolution partnership paper, Chair of the Bar, Andrew Langdon QC, said: “The paper raises more questions than it seeks to answer on what is a matter of crucial significance to the UK. A number of suggested alternate mechanisms to the CJEU are listed, though it is not clear which, if any, the government favours. Whatever agreement the UK reaches with the EU, there must be some form of dispute resolution process with the EU post-Brexit in which all parties have confidence. There are important regulatory, economic and rights-based reasons for ensuring legal certainty which underline the ongoing relevance of the CJEU case law post March 2019. The Bar Council will be seeking to work closely with Whitehall on this important issue.”
Many so-called pension experts are helping to destroy trust in pensions, warns the CEO of UK Workplace Solutions, Simon Chrystal.
It comes as scrutiny intensifies on advisers involved in delivering advice on pension transfers. At the same time, demand has been stimulated by commentary and reporting of transfer values of sometimes 40 or more times the forecast annual pension income that members would otherwise receive. This results in individuals speaking to advisers starting from the premise they are on the right end of a “deal”, when for many people nothing could be further from the truth.
Mr Chrystal comments: “A reported £50bn has been transferred from company defined benefit schemes to individuals since the rules changed and greater pension freedoms were introduced by the government in 2015. The vast majority of the people taking these pension transfers have received advice.
“Of course, there have been some rogue advisers in the sector, unfortunately, as there are in every industry, but to listen to some so-called pension industry experts continually crowing in the media, you would think that the whole sector is riddled with scandal. This is simply not a true or a fair representation of the facts.”
He continues: “Indeed, people who take professional financial advice, consider their options carefully and then decide to transfer their pensions, are routinely and arrogantly slammed in the press by many in the industry as having been misled, misinformed or mis-sold.
“If these industry commentators bothered to drop the ‘we know best because we are the experts’ attitude, they might learn that the regular people we work with are not stupid, have made more good decisions than bad ones in their life, know their values and how they want to live. They want to organise their income in a way that allows them to do the things they did not have time to do when they were working. They understand they have to make hard choices sometimes, they have had a lifetime of such choices. In summary, what right, what real knowledge of dealing with regular people, do these apparent industry experts have to slam them for choosing to spend their own hard earned and prudently saved money in a way they choose?
“By pushing their agenda in this way and by creating constant distrust, they have turned what should be the point in someone’s life when they reward themselves for all their hard work, into a time of fear and anxiety.”
Mr Chrystal concludes: “With this approach, these commentators are destroying trust in pensions at a time when access to retirement advice is more important than ever.”
(Source: UK Workplace Solutions)
Below, Dominic Carman, noted legal commentator, discusses with Lawyer Monthly the shadowed attention given to the lawyers behind some of the biggest SFO investigations of our time, uncovering the real gainers of large fraud.
The phrase cui bono, originally made famous by Cicero, remains a key forensic question in many legal and police investigations. Its literal meaning – for whose benefit – carries a wider interpretation in modern usage: determining who has a motive for a crime that has been committed. In short, the question whodunnit routinely depends on: who had the motive to do it.
Although the Serious Fraud Office does not resonate with cries of ‘cui bono’, the question remains at the heart of its investigations into serious fraud, bribery and corruption by companies, their officers and employees.
In pursuit of alleged fraudsters, the SFO has a full-time equivalent of around 400 permanent staff. These include investigators, lawyers, forensic accountants, analysts, digital forensics experts and a variety of other people in specialist and support roles. In taking on very big cases, the SFO routinely expands its capacity with temporary and fixed term staff. For the Libor investigations, this peaked at an extra 80 staff, for example.
The SFO received £35.7m in core funding last year, topped up by £17.9m in blockbuster funding from the Treasury for additional expenditure in large scale investigations. Although core funding was up slightly from £33.8m in 2015-16, blockbuster funding was down from £28m, largely because the Libor investigations began to tail off. The net effect is that total funding fell from £61m to £53.63m between 2015-16 and 2016-17.
Simultaneously, the SFO has been targeting some of Britain’s biggest companies. Which leads back to Cicero’s question: cui bono. One clear answer emerges: the lawyers. Boutique criminal firms in London have experienced a boom in SFO-related work over recent years. Predictably, this has been good news for the top-drawer players: BCL Burton Copeland, Corker Binning, Kingsley Napley, and Peters & Peters.
And then there are the criminal barristers who have also benefited. A healthy cluster of QCs and senior juniors have found themselves very busy advising on SFO investigations, prosecutions and representing clients at criminal trials. This is especially true at the top sets of chambers: 2 Bedford Row; Cloth Fair Chambers; 2 Hare Court; QEB Hollis Whiteman and 3 Raymond Buildings.
These names are entirely as expected. But far less predictable has been the use of big corporate law firms in this space: Clifford Chance and Ashurst, together with transatlantic firms like Eversheds Sutherland and Norton Rose Fulbright, US firms such as Winston & Strawn and WilmerHale and commercial dispute resolution specialists like Quinn Emanuel Urquhart & Sullivan.
In response to the SFO’s investigations into big UK corporates and banks, they have increasingly turned to their big corporate legal advisers in addition to the white collar boutiques. Herbert Smith Freehills and Willkie Farr & Gallagher are advising Barclays; Linklaters is advising Amec Foster Wheeler; Kirkland & Ellis is advising Rio Tinto. And so on.
When two deferred prosecution agreements (DPAs) were agreed by the SFO earlier this year, Freshfields Bruckhaus Deringer and Kingsley Napley advised Tesco while Slaughter and May and New York white shoe firm Debevoise & Plimpton advised Rolls-Royce. In response to its imminent investigation by the SFO, launched in July 2017, British American Tobacco first hired Linklaters to conduct a “full internal investigation” only to replace one magic circle firm for another by appointing Slaughter and May as its sole adviser on the case.
Since the start of 2012, the total legal spend by companies and wealthy individuals, either subject to or anticipating an SFO investigation, now approaches £1bn. As one of the fastest growing areas and increasingly lucrative areas of legal practice, it explains why some of the world’s most profitable firms - Kirkland and Ellis (annual profits per partner $4.1m), Quinn Emanuel ($5m), and Slaughter and May ($3.6m) - are now taking a slice of the available pie.
An unintended consequence of the SFO’s transparent strategy of going for the biggest corporate names, the rise of the biggest corporate law firms advising on aspects of criminal investigations provides them with another revenue stream. So does it work? The SFO would point to the success of this year’s DPAs: Tesco agreed to pay a fine of £129m while Rolls-Royce paid a total penalty of £497.3m.
However, the public is much less impressed by companies getting away with large fines while no individual is convicted and sent to jail. For all the high-profile investigations of Britain’s biggest companies, not one FTSE 100 company director or former director has yet been jailed for any fraudulent wrongdoing as a result of SFO inquiries.
The forthcoming trials of former senior executives of Tesco and Barclays are therefore eagerly anticipated. If no alleged perpetrators of fraud at major companies or banks end up being sent to prison, then the mere payment of large fines is a distinctly Pyrrhic victory in the long-term battle against fraud.
And the question will become even more urgent: cui bono?
UK-based Intelligent Fingerprinting recently announced the availability of its new fingertip-based drug screening system to support Coroner services. The company’s technology detects drug use by analysing the sweat on the tip of a finger that forms a fingerprint, and its non-invasive approach provides a rapid and convenient way for Coroners to screen the deceased for recent drug use.
Toxicology tests are an important tool within post mortem examinations and are often used by the Coroner to investigate drug use that might have contributed to the cause of death. Conventional toxicology tests require the collection of invasive body fluid samples, usually taken as part of the post mortem examination. These are then typically sent away for analysis by external testing laboratories.
With Intelligent Fingerprinting’s new Drug Screening System, however, tests can be carried out within the mortuary from non-invasive fingertip sweat samples that are collected immediately as required outside a full post mortem examination. Sample collection takes just seconds and the system screens for multiple drugs of abuse in under 10 minutes. This provides very early intelligence on drug use that can be used by the Coroner to help prioritise when a full post mortem is needed, and - potentially - enables earlier release of the deceased back to their families.
Based on work initially funded by a Biomedical Catalyst grant from Innovate UK, the two-part Drug Screening System consists of single-use, tamper-evident Intelligent Fingerprinting Cartridges (for sample collection) and the portable Intelligent Fingerprinting Reader 1000 analysis unit. The Cartridge uses lateral flow assay technology and fluorescence-labelled antibodies to selectively detect specific drugs or their metabolites in eccrine sweat collected from a fingerprint.
The portable Reader 1000 is a highly sensitive, robust and effective fluorescence measurement instrument which is used to read the cartridge, providing a positive or negative result for four groups of drugs – amphetamines, cocaine, opiates and cannabis.
Trials have been conducted in three areas - Plymouth, Torbay and South Devon; South Yorkshire (West) and Staffordshire (South) – to evaluate how the system could provide early intelligence on cause of death. Over two hundred fingertip sweat samples were tested for the presence of four drug groups, with the results being compared for accuracy to samples taken with traditional methods and sent for laboratory analysis.
“Our trial results showed that the Intelligent Fingerprinting Drug Screening System can detect the use of drugs prior to death, and revealed a 94% to 99% correlation to laboratory results. This demonstrates the effectiveness of fingertip-based testing in providing Coroners and their staff with valuable drug use intelligence as to the possible cause of death,” said Dr Jerry Walker, Chief Executive Officer, Intelligent Fingerprinting. “In comparison to traditional blood, urine or saliva body fluid tests, our non-invasive fingertip sweat samples can be collected and analysed immediately on arrival at the mortuary. This contrasts with body fluid sample tests that require specialist and hygienic collection and disposal, and are typically only collected and analysed if a full post mortem examination is carried out.
“This ability to gain very early drug use intelligence outside the post mortem examination provides a new opportunity for Coroners and their staff to expedite and direct further investigations and toxicology analysis,” he added. “This early information can be used to inform any further post mortem examinations and toxicology tests, helping the Coroner to prioritise valuable resources where they are most needed.”
To learn more about how non-invasive drug screening works, and how it can become a valuable drug screening technology for Coroner services and other applications, view the Intelligent Fingerprinting introductory video.
https://www.youtube.com/watch?v=uNnqlrUdMG8
(Source: Intelligent Fingerprinting)
As part of our law school & careers content, Charles R. Toy, Associate Dean of Career and Professional Development, Western Michigan University-Cooley Law School, here lists 5 top tips for job hunting, whether you’re a student who has just qualified, or a lawyer looking to take the leap to another line of work or firm.
There is more than one trail to the top of a mountain. The same is true of your job search. Regardless of the number of ways to achieve a goal, there are consistent keys to success. For law students, these are the five principle keys for job hunting.
Know Thyself. It is important to set defined career goals. A job hunt is meaningless without a known target – how will you know where to aim? First, do a self-assessment that includes reflective soul-searching. What are your interests, principles, ethics, preferred employment settings, financial requirements, geographical constraints, and work/life balance requisites? Next, identify which of your unique characteristics and attributes influence what you are passionate about – what areas of law are compatible to those traits - where will you thrive? Assess your personality traits to identify the type of work place culture that brings out the best in you and fosters your passion for the law. These considerations will lead you to your career goals.
Be Purposeful. With defined career goals, you can focus your job search. Direct your energies to purposeful actions that will result in achieving your goal. You learned research methods in law school. You can use those skills for your own benefit and find employers who hire for the positions you are seeking. If you are still in law school, the results of this research may indicate what co-curricular activities or elective courses you should pursue. Continually update all your marketing tools – resume, cover letter, writing samples, and social media accounts. Make sure they highlight the skills needed for the positions you seek. Always tailor your application materials and LinkedIn profile to emphasize skills and attributes that are important for the job you seek. Enroll in e-mail job alerts so you know the moment when opportunities are posted in your desired field. USAJOBS.gov and the ABA Legal Career Central are examples of sites that will notify you by email of new job postings that match your search preferences. Cast a wide net, but do so purposefully.
Seek Help. Your law school career services office is a great place to start in seeking assistance. Use the knowledge, resources and contacts that career counselors have gained through years of experience. Tap their networks. A systematic and strategic networking plan works. Expand your own network by asking your contacts to introduce you to attorneys in their network. Be specific and direct in approaching people for help. If you do not have a contact within your desired practice area or within a particular law firm, seek out an informational interview. The object is to meet attorneys who can provide current insight to their practice area, tell you about a job lead, or introduce you to someone who can.
Remain Flexible. Do not limit your job hunt only to the direct paths to your ultimate target. Indirect pipelines can also lead you to your career goal. Apply for positions where you will acquire significant t skills transferable to your ultimate career goal. For example, a judicial law clerk position is a great choice useful for any career path. Or, consider volunteering with a legal aid clinic where you can sharpen your inter-personal skills. Your resume and online presence are not static. Your legal experiences in law school should not be either. If you tailor your job hunt to opportunities that expose you to basic foundational skills – legal research, drafting pleadings, preparing transactional documents – you will end up with a competitive skill set.
Be Persistent. “Never, never, never give up” is one of Winston Churchill’s famous quotes. Another is, “Never give up on something that you can’t go a day without thinking about.” Continuous effort pays off. This is where you can be original and creative in your approach. Be engaged in activities that demonstrate you want a desired job. Being active in an ABA or state bar subject-matter section is essential. You will meet attorneys in your desired field of practice and keep updated on trends and cases. Contribute an article to the section publication or create informative and positive content on a section listserve. Drafting a timely analysis of new legislation or court decisions in your practice area will highlight your legal acumen and will help those who you seek to hire to find you right away. Sweat equity will get you noticed.
The recent Supreme Court decision in R (on the application of Unison) v Lord Chancellor that makes employment tribunal fees unlawful raises important questions for affected claimants and employers, says Andrew Masters, a Partner and Head of Employment at UK law firm Furley Page.
The immediate effect is fees are no longer payable and those paid in the past four years, amounting to £32 million, must be reimbursed by the Government.
It is, says Andrew, ‘a landmark and momentous decision’ and adds: “Simply put, the Supreme Court determined that society loses out if access to justice is blocked. It again demonstrates an independent judiciary will, in specified circumstances, intervene to challenge decisions of the executive and defend principles of common law.”
But, Andrew says, however welcome the decision may be for employees, the practicalities are unknown.
What next?
It is likely the number of claims in the Employment Tribunal (ET) and the Employment Appeal Tribunal (EAT) will increase following a significant reduction triggered by the fees. However, the Acas Early Conciliation Scheme has had some success in resolving disputes and will remain, so numbers may not increase to pre-July 2013 levels.
In theory, the Government could come up with another system, perhaps one that puts a greater cost burden on employers rather than simply being placed on employees. However, it appears unlikely, at least for the time being, given the decision of the Supreme Court, the practical difficulties and priorities of the minority Government and relative cross-party support for the abolition of fees.
Questions to be answered
With immediate effect, fees have ceased to be payable in the ET and in the EAT and the Government must reimburse those paid in the past.
But this in itself raises a number of questions needing answers, and we are currently awaiting details from the Government on the arrangements that are to be put in place.
How will claimants recover their fees? Will they need to apply or will the Government process funds automatically?
What about employers who had to reimburse winning claimants for the fees they were unlawfully required to pay? Will the Government refund the employer? Or will employers have to ask for refunds from claimants once those claimants have received their refunds?
What about claimants who paid the fee but then settled their claim? If they get a refund, will the employers who settled be able to recover for that part of the settlement representing the fee? Will they recover it from the claimant or the Government?
Will potential claimants who were unable to bring a claim because of the fee be able to sue the Government for the losses caused by their inability to bring a claim? Will they be able to submit late applications to the ET and, if so, how will the ET treat those applications – this is particularly relevant for discrimination cases?
There is likely to be an increase in the number of claims. Will additional resources, financial and others, be transferred to the already over-burdened Tribunal Service and/or Acas Early Conciliation Scheme?
Andrew says: “Where barriers are erected to enforcing workers’ rights, such rights are effectively worthless. If employers know claimants are unable or unwilling to bring claims, the whole system of employment protection is undermined.
“Employment Tribunal fees have been abolished and we now need robust answers for claimants and employers affected by the barriers erected by the Fees Order.”
(Source: Furley Page Solicitors)
Former Senior Judge at the Court of Protection, Denzil Lush, recently gave his opinion regarding Lasting Powers of Attorney (LPAs) and the potential for fraud in a radio interview for BBC Radio 4 and the BBC published the article here. Below experts at Humphries Kirk discuss.
Whilst reading this article may encourage fears that making an LPA will automatically lead to fraud and abuse, Former Senior Judge Lush’s comments must be taken in context. Following a career spanning 20 years at the Court of Protection, Former Senior Judge Lush will have seen the worst situations of financial abuse that can arise between families and this will shape his own view.
However, significant numbers of LPAs are created every year. Many will not cause issues and work in the way that they are intended to. Naturally success stories are not going to make the headlines in the same way and it is misleading to assume that making an LPA will lead to fraud.
Former Senior Judge Lush has advocated the Deputyship route over making an LPA. In terms of avoiding financial abuse his comments are correct. Those people subject to a Deputyship Order can be assured that their Deputies must fulfil reporting requirements from the Office of the Public Guardian (OPG), they are supervised in their activities and required to enter into a security bond in case the Donor’s assets are mismanaged.
There has so far not been any mention of the costs of obtaining a Deputyship Order, in our experience this can be between £1,200 and £1,500 + VAT of legal costs and a £400 court fee, or the fact that obtaining an order from the Court of Protection usually takes 6 – 9 months.
In our opinion, Former Senior Judge Lush’s comments should be interpreted to highlight the need for professional advice when considering an LPA. Solicitors have a role to play in ensuring that the public understands the nature and extent of the power that is granted and the pitfalls of not carefully considering the choice of Attorney(s) before completing the arrangement.
The OPG and Ministry of Justice have been keen to advertise the LPA as a simple document that anyone can prepare. This strategy, whilst having the positive effect of bringing LPAs into public consciousness, fails to identify the issues that need to be considered when making one and is only likely to lead to personal applications for basic LPAs which make no provision for differing situations and no advice has been taken on their merits. Such LPAs may later be found to have led to fraud and financial abuse.
Another serious flaw in the OPG’s message, is that in suggesting that anyone can make an LPA and it is easy to do so, vulnerable people may find themselves pressured to enter into an arrangement allowing financial access to difficult family members, carers or friends that do not have their best interests at heart.
A clear way to address this issue and the concerns that Former Senior Judge Lush clearly has voiced, would be to reiterate the role of the Certificate Provider (a person that signs the LPA to state that those making the document understand the nature of it) and to require that the Certificate Provider be a trusted professional, such as a solicitor or doctor, rather than a friend or neighbour.
All too often a Certificate Provider will be appointed who will not be aware of their responsibilities. This Certificate Provider will not necessarily be able to judge capacity or spot signs of undue influence.
There are undoubtedly issues with the current LPA system and the ‘dumbing down’ of its importance perpetuated by the Ministry of Justice and OPG. However, an LPA remains an essential tool in the armoury of protecting and safeguarding affairs of the elderly and vulnerable and Former Senior Judge Lush’s comments should be seen as a warning against the system, not against the concept of an LPA.
Our message is clear – obtain legal advice and speak to a professional and we can ensure that the LPA you make is right for you. Contact your local branch and speak to the Private Client department to find out more about the process of creating an LPA.
