A new month has come, and with it a new series of shocks for the UK. As the legal sector gets to grips with a new Prime Minister (and a returning Justice Secretary), it is easy to lose sight of the important developments that continue to shape the global world of law, even if they do not make national headlines. The November 2022 edition of the magazine seeks to explore these trends across all sectors of law. Our featured cover author this month is Brianna Giliberto-Hermann, a California-based attorney with a wealth of experience in estate planning. She shares her unique insights on trusts and their effective use as a tool for solid end-of-life planning in an exclusive article on page 12. Readers will also be interested to explore Damian Bradley’s interview on page 50, where he discusses ongoing shifts in UK personal injury law and his personal journey into this fascinating profession, or our own legal sector spotlight on page 24, where we assemble an overview of this year’s most exciting developments in sports law. Both are certain to be of interest. As ever, this new issue of Lawyer Monthly Magazine comes packed with a myriad of fascinating articles digging deeper into evolving topics in the legal and corporate space, with this month’s focuses including inheritance disputes, fraud investigation, the growth of arbitration and more. Be sure to also check out the latest news, lawyer moves and M&A deals to stay abreast of the goings-on throughout the world of law. We hope that you enjoy this edition. We hope that you enjoy this edition. LAWYER MONTHLY©2022 Universal Media Limited Lawyer Monthly is published by Universal Media Limited and is available on general subscription. Readership and circulation information can be found at: www.lawyer-monthly.com. The views expressed in the articles within Lawyer Monthly are the contributors’ own. All rights reserved. Material contained within this publication is not to be reproduced in whole or in part without prior permission. Permission may only be given in written form by the management board of Universal Media Limited. Approx. 302,000 net digital distribution. Oliver Sullivan Editor Lawyer Monthly Welcome to Lawyer Monthly Magazine NOVEMBER 2022 EDITION @lawyermonthly @LawyerMonthly @lawyermonthly company/lawyer-monthly Universal Media Limited, PO Box 17858, Tamworth, B77 9QG, United Kingdom 0044 (0) 1543 255 537 Production Team: Emma Tansey, Luke Ostle, Nathan Athersmith production@lawyer-monthly.com Sales Enquires: Jacob Mallinder Jacob.mallinder@universalmedia365.com
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Contents 46 50 6 Monthly Round-Up 8 Lawyer Moves FEATURE OF THE MONTH 12 Brianna Giliberto-Hermann Protect Your Legacy with Estate Planning MY LEGAL LIFE 20 David Kwartler Building a Life in Personal Injury Law SPECIAL FEATURES 24 The State of Sports Law in 2022 Oliver Sullivan, Lawyer Monthly 28 The Register of Overseas Entities: How Does It Affect Your Firm? Iryna Vale, TMF UK 32 Where to Locate your Law Firm in the Era of Legaltech Niamh Breslin, IDA Ireland 36 How to Drive Greater Employee Inclusion Through Legal Contracts Rafie Faruq, Genie AI 40 Will Scotland Become a Hub for Class Actions? Richard McMeeken, Morton Fraser EXPERT INSIGHT 46 The Art of Unravelling Inheritance Disputes Amanda Ebey, Law Office of Amanda L. Ebey, PC 50 What is the State of UK Personal Injury Law? Damian Bradley, Express Solicitors 56 Shaping Growth in the UK and International Arbitration Ish Jain, International Arbitrator 62 The Reshaped Landscape of Fraud Investigation Peter Glanville, Ankura THOUGHT LEADER 68 Common Misconceptions of US Business Bankruptcy Daniel Etlinger, Jennis Morse Etlinger 72 Six Events to Remember from Singapore Convention Week 2022 76 The Solicitors’ Charity Targets Over £1 Million in 2023 Nick Gallagher, The Solicitors’ Charity TRANSACTIONS 81 What’s Happening in the World of M&As and IPOs?
Monthly Round-Up NOVEMBER 2022 Alec Baldwin Settles With Family of ‘Rust’ Set Shooting Victim Actor Alec Baldwin has reached a settlement deal with the family of cinematographer Halyna Hitchens after she was killed on-set when he fired a prop gun. “The intention of the company is to close the transaction,” a Twitter representative wrote in response to the notice. The social media platform has been pressing Musk to complete the deal under the terms agreed upon in April. It has sued him in Delaware, where Tesla is incorporated, and where the court is reputed for its enforcement of merger agreements. The deal was officially completed on 27 October with Musk assuming majority ownership of Twitter. Musk’s U-turn on the deal follows months of legal drama as the Tesla CEO claimed to have been misled by Twitter executives on the number of spam accounts operating on the platform. In its lawsuit, Twitter, in its lawsuit, described Musk’s behaviour as “a model of bad faith”. “I have no interest in engaging in recriminations or attribution of blame,” he said. “All of us believe Halyna’s death was a terrible accident.” Filming of ‘Rust’ is set to continue in January, with “all the original principal players” to remain involved, according to Mr Hutchins, who will become the film’s executive producer. A lawsuit was filed against Baldwin, producers and others in the wake of the shooting on the set of ‘Rust’, alleging violations of industry standards. The terms of the settlement, which remains subject to court approval, have not been disclosed. The film’s producers were fined for the maximum $136,793 following the incident last October and criticised by the New Mexico Environment Department for showing “plain indifference to recognised hazards associated with use of firearms on set”. Ms Hutchins’ widower, Matthew Hutchins, said in a statement that all parties believe that the killing was accidental. The Tesla CEO has filed to complete his $44 billion acquisition of Twitter following months of legal disputes. Lawyers for Musk confirmed in a court filing on Tuesday 4 October that the billionaire would be going ahead with the deal after pushing for it to be scrapped. The notice filed in theDelaware Chancery court confirmed early reports that Musk had written to Twitter executives offering to close the deal at the initially agreed-upon price of $54.20 per share. The news lifted Twitter stocks by more than 12% on the day, reaching $47.93 before trading closed in New York. 6 LAWYERMONTHLYNOVEMBER 2022 $44 Billion Twitter Deal Back On After Elon Musk U-Turn
Barristers in England and Wales Vote to End Strike Action Biden Signs Executive Order On US-EU Data Privacy Network 57% of barristers voted to accept a 15% pay rise and a package of further measures, according to the Criminal Barristers Association (CBA). President Biden has signed an executive order to limit the ability of US national security agencies to access private information. Secretary of Commerce Gina Raimondo said that the court’s decisions ought to be independent and binding. “These commitments fully address the Court of Justice of the European Union’s 2020 Schrems II decision and will cover personal data transfers to the United States under EU law,” she said. The decree will now be sent to Brussels, where the European Commission will transpose it into its own rules. from barristers regarding the state of the UK’s legal aid system that provides the bulk of their pay, has resulted in delays to hundreds of trials. It is not yet known how quickly this backlog may be cleared. “The criminal justice system remains chronically underfunded. The onus is on government to properly fund it,” said Kirsty Brimelow KC, chair of the CBA. “Barristers’ acceptance of this deal is a first step in working with government for long-term reform. If the deal falls short in implementation, the CBA will ballot its members again on taking action.” of privacy rights. The new ‘Data Protection Review Court’, which will exist within the Department of Justice, will allow citizens to file lawsuits via ‘special advocates’ to challenge how governmental agencies use their data. This has the potential to become a significant limit on the operations of the NSA and other bodies. In a briefing on Thursday, work, additional payments will be provided for a range of court preparation work that barristers have stated that they were not being properly paid for. The 15% rise in fees will also apply to 60,000 cases in the current national backlog, a key measure that has featured among striking barristers’ demands. Although the amount falls short of the 25% rise barristers sought, a majority of the 2,605 CBA members who voted on the new proposal agreed to accept the measures. The strike action, which began in June following several years of complaints The order, which comes as part of lengthy negotiations, will form a pillar of a transatlantic data sharing agreement between the US and EU. In addition to limiting US security agencies’ abiility to access information from European and American citizens, the decree will grant new powers to officials in the US Office of the Director of National Intelligence to investigate potential breaches The new Justice Secretary, Brandon Lewis, offered barristers a slate of measures that were not tabled by his predecessor, Dominic Raab. In addition to an immediate 15% increase in fees for government-funded defence MONTHLYROUND-UP 7
Lawyer Moves RECENTAPPOINTMENTS FROMACROSS THEGLOBE Global law firm Jones Day has announced that 45 new lawyers will be admitted to its partnership as of 1 January 2023. Stephen J Brogan, Managing Partner at Jones Day, lauded the newcomers’ arrival. "The promotion of these new partners reflects Jones Day's ongoing commitment to developing and advancing lawyers throughout the world who have achieved the highest levels of professional accomplishment and who are devoted to advancing and protecting the interests of our clients and the institutional values of the firm," he said in a statement. The new partners are drawn from a range of Jones Day offices, rising from either associate or ‘of counsel’ positions. New partners’ practice areas include tax, labour and employment, government regulation, business and tort litigation, antitrust and competition law, financial markets, M&A, insurance recovery, intellectual property, global disputes, business restructuring and reorganisation, securities litigation and SEC enforcement. In all, Jones Day counts more than 2,400 lawyers among its global staff, spread across 42 offices on five continents. The bulk of the new appointees are US-based, located in the firm’s offices in Washington, Los Angeles, New York, Chicago, Pittsburgh and Dallas, among others. There are also various overseas appointees based in the firm’s London, Paris, Milan, Madrid, Amsterdam and Beijing offices. The full list of appointees can be viewed on the Jones Day website. UK-based national firm Irwin Mitchell has expanded its Planning and Environment department with the appointment of Pamela Chesterman as a partner. Chesterman’s appointment brings the Irwin Mitchell P&E team to 13 members, having already been strengthened this year through the recruitment of senior associates Jill Crawford and Tracy Lovejoy, respectively specialising in environment and planning. Victoria Tague also joined as a planning associate in Manchester. Chesterman joins Irwin Mitchell from Brabners, where she served as Legal Director and Head of Planning. Prior to this, she had been Head of Planning at Prosperity Law. She boasts experience across a broad swathe of environmental and planning law, with a particular emphasis on the development sector, having advised on housing and commercial-led development in addition to local government issues. “Pamela will play an important part in helping us to fulfil Irwin Mitchell’s ambition to provide first-class advice to clients,” said Director of Property Legal Services Adrian Barlow in a statement. “She comes with great hands-on experience, especially her in-depth knowledge of both local government and the development sector and will be a great asset to the P&E practice and the wider property department.” The P&E team forms part of Irwin Mitchell’s Property Division. With the recruitment of Chesterman, the Division now numbers 28 partners and over 150 total lawyers. International law firm DAC Beachcroft has announced the appointment of Martha Grekos to its Real Estate team in London as a planning partner. Grekos brings more than two decades of experience in delivering complex, large and politically sensitive infrastructure, development and regeneration schemes. She also boasts expertise in strategic planning, land assembly, infrastructure planning, town and country planning, policy, and regulation. Prior to the announcement, Grekos had been acting as an independent planning consultant and barrister since 2019. Prior to this she was partner and Head of Planning at Howard Kennedy. “Martha is one of the UK’s foremost planning lawyers with a proven track record,” said Robert Lee, DAC Beachcroft’s Head of Real Estate. “She has advised on high profile projects in London and nationally, including High Speed 2, Crossrail, the Walkie Talkie, and the regeneration of Elephant & Castle. Her strong commercial real estate focus will complement our well-established residential practice and enable us to broaden the planning advice we provide our clients and further raise the profile of our commercial real estate practice.” Jones Day Appoints 45 New Partners Irwin Mitchell Bolsters Planning and Environment Team DAC Beachcroft Adds New Planning Partner Europe Jones Day London, United Kingdom DAC Beachcroft Manchester, United Kingdom Irwin Mitchell 8 LAWYERMONTHLYNOVEMBER 2022
Linklaters has announced the appointment of Françoise Maigrot as Managing Partner of the firm’s Paris office for a four-year term beginning 1 January 2023. Maigrot initially joined Linklaters Paris as an intern before attaining partnership in 1999, whereupon he headed up the firm’s Real Estate team. Mairgrot is a recognised lawyer in the real estate space, supporting the firm’s clients in France and internationally. She has particular expertise in investment funds, banks and end users, especially in matters requiring the establishment of complex financial, legal and tax arrangements. She also regularly advises on major transactions in both the French and international markets. Mairgrot has been a member of Linklaters’ governing Partnership Board since 2020, and has thus helped to oversee Linklaters' global strategic operations globally and alignment with its core values. She succeeds Bertrand Andriani, the partner who currently leads the firm’s Financing, Energy and Infrastructure team in Paris, as well as the Francophone Africa practice. “I am very honoured to succeed Bertrand Andriani,” Mairgrot stated. “As we approach our 50th anniversary, we recognise that Linklaters Paris occupies a prominent place in France and within Linklaters. Reinforced integration of our offer in Europe, increasing focus on ESG issues and new technologies, pursuit of our societal commitments and of course the development of our talents, will be among my priorities as Managing Partner." Global firm Allen & Overy has recruited a partner from rival Hogan Lovells in Perth to co-lead its mining practice. Matthew Johnson joins the UK-based firm after six years at Hogan Lovells. He currently serves as the latter firm’s global head of mining and a partner in its corporate practice. Over the course of his career he has gained a wealth of experience in advising on domestic and cross-border transactional and corporate advisory matters, which have included corporate governance and regulatory compliance issues. Jonson is known in the mining sphere, with a background in advising clients involved in clean energy, precious metals, iron ore and critical minerals. Highlights of his work at Hogan Lovells include his advising of Wolf Minerals on its equity and debt facility, and his assisting Allied Gold Corp on its acquisition and financing of gold mines in Mali and the Ivory Coast. Johnson is set to succeed A&O’s Perth-based mining co-head, Geoff Simpson, who plans to retire from the partnership. Johnson will lead the team together with Johannesburg managing partner Gerhard Rudolph. “Matthew will provide specialist mining capacity across Australia, Asia Pacific and globally allowing us to support our clients locally and across our global mining practice,” Rudolph said. Linklaters Appoints New Managing Partner to Paris Office Allen & Overy Boosts Global Mining Practice With New Co-Lead in Perth Perth, Australia Allen & Overy Paris, France Linklaters LAWYERMOVES 9
In many senses, estate planning is unique in being an area of law relevant to all people, regardless of their life circumstances. Effective end-of-life planning forms the bedrock of many families’ plans for the future, and the peace of mind it offers cannot be understated. With this in mind, what benefits do families stand to gain from the creation of a revocable trust, and what is the best method to ensure that the successor beneficiaries and trustees selected are appropriate? Brianna Giliberto-Hermann provides informed answers to these questions and more in this month’s front cover feature. FEATURE OF THE MONTH
Protect Your Legacy with Estate Planning Brianna GilibertoHermann One of the most important decisions we can make in our lives is how best to divide our property upon our death. There is an ever-growing demand for estate planning and probate lawyers who are able to assist with this crucial decision as more individuals realise that estate planning is for anyone over the age of 18. This is especially true for homeowners. This month, we have the privilege of hearing from Brianna GilibertoHermann, a California lawyer with a wealth of experience in end-oflife planning and asset protection. In this article, she shares vital information on the necessity of trusts in ensuring one’s wishes are adhered to and on the best method of selecting successor trustees, drawing upon her own experience of navigating inheritance disputes. Feature of theMonth, with FEATUREOF THEMONTH 13 The only true means of avoiding probate and making sure your wishes are followed – and not whatever the law dictates – is with a revocable trust.
Estate planning for individuals who have assets (referred to as a person’s ‘estate’) that are collectively worth more than $184,200 in the state of California typically involves a ‘revocable trust’. A revocable trust is also commonly known as a living trust or family trust. The beauty of this document is that it can be changed throughout the lifetime of the individual(s) who created it (referred to as the ‘settlor’ or ‘trustor’) so long as they have the mental capacity. There is a common misperception that a revocable trust will protect you from legal liability if you are sued. This is not the case with a revocable trust, because this type of trust is not considered to be a separate entity from the individual who creates it, as it is able to be changed at any time and does not have a fixed amount of assets in it. However, the similarly named ‘irrevocable trust’ can potentially protect you from certain legal liabilities because it is considered a separate entity, with the downside that the creator of this type of trust loses most if not all their ability to change the trust document itself or the assets held within it. On the other hand, a revocable trust allows for an individual to create a probate law-based instruction manual containing their wishes for those who are left behind regarding what is to happen to the estate after their death. It is similar to a ‘last will’ in the regard that it contains one’s after-life wishes. However, unlike a last will, no matter the size or value of the estate contained in a trust, it avoids a lengthy and costly court process called probate. A simple probate case typically lasts for around 12-18 months and involves the court overseeing the entire process from appointing the estate representative to approving the final distribution of the decedent’s estate. The only true means of avoiding probate and making sure your wishes are followed – and not whatever the law dictates – is with a revocable trust. This is true for anyone who has assets that are valued at $184,200 and homeowners in the state of California. People generally want to avoid spending the money that it takes to create a trust, but it is a long-term investment that can potentially save your family time and thousands on attorney and court fees. In fact, attorney fees for a probate are set out in California Probate Code Section 10810, which states that the attorney is to receive a percentage of the gross value of the estate by using the following breakdown: 4% of the first $100,000; 3% of the next $100,000; 2% of the next $800,000; 1% of the next $9,000,000; and 0.5% of the next $15,000,000. This means that, for an estate valued at $550,000, regardless of any mortgages or outstanding debts, the attorney will be paid $14,000. There are other methods of avoiding probate other than a trust, but they are potentially not as successful in achieving their goals as they have their own pitfalls. These methods may include holding an account as a joint tenant or having beneficiaries named directly on ‘payable upon death’ accounts or on a ‘transfer on death’ deed, but each of these have their own pitfalls that a trust would avoid altogether. A ‘joint tenancy’ refers to when the individuals’ names on the title both have equal ownership and there is a right of survivorship where the property automatically passes to the survivor. The trouble with a right of survivorship comes when both of the individuals pass away at the same time or the survivor passes away with no one else on the title to whom it could automatically transfer. If there is no one left on the title who has a right of survivorship, then the asset (more than likely a house) will have to go through probate. Another method is to list beneficiaries directly on money accounts such as bank accounts, annuities, life insurance, stock, etc. These are called ‘payable upon death’ accounts, because as soon as the original owner passes away, the assets in the account belong to the beneficiaries named directly to that account as described in California Probate Code Section 5142. With payable upon death accounts, there is a high likelihood that the person you would want the asset to go to is blocked because it is limited only to those specifically named on the account. For instance, you may have both of your 14 LAWYERMONTHLYNOVEMBER 2022
children listed as equal beneficiaries on your 401K, but one of your children predeceases you and leaves behind your grandchild. If you do not specifically add your grandchild as a beneficiary to the 401K, then your only surviving child will get 100% of the aforementioned 401K and your grandchild will receive nothing. If this asset were in a trust, then you can have it follow an entire bloodline of beneficiaries, so that your grandchild is not left out in the cold. As for residential property, under California law a ‘Transfer on Death’ (TOD) deed is an alternative to putting the property into a revocable trust. A TOD deed allows you to designate the specific beneficiaries that are to receive the property upon death of the original People generally want to avoid spending the money that it takes to create a trust, but it is a long-term investment that can potentially save your family time and thousands on attorney and court fees. FEATUREOF THEMONTH 15 owner if the deed is properly recorded within 60 days. Unfortunately, while a TOD deed is revocable, it has many limitations, especially for those doomsday scenarios one might avoid with a trust. If the deed is not recorded with the county by the statutory deadline or the named beneficiary dies before the original owner, then the TOD is legally ineffective and the property may pass according to who is determined by the probate court to be the rightful heir under California Probate Code Section 240. Also, if the property owner becomes incapacitated through dementia, stroke, coma or another medical event, there may be no way to revoke the deed even due to changes in the circumstances or a need to qualify the owner for governmental assistance. TOD deeds are also not good solutions for individuals who have minor children because while minors may own real property, they may not convey or make contracts relating to real property under California Family Code Section 6701 and California Civil Code Section 1556. By creating a trust and putting the property into it, instead of making a TOD deed, none of this need be a concern. Therefore, in order to avoid any doomsday situations that result in your assets going through probate, it is wise to plan for every scenario and place anything that is a large money asset into a revocable trust. This is especially true for the average homeowner in California, even if just starting out. By placing your money accounts (any savings accounts, larger checking accounts, IRAs, 401Ks, life insurance policies, annuities, etc.), business interest, and houses or real estate into a revocable trust, you are able to create a one-stop-shop for any changes you may want to make regarding the beneficiary of any given asset. You are also able to maintain complete control over your assets throughout your lifetime, while creating an easy-tomanage treasure map for who you leave in charge of making distributions from your estate. As the creator of the trust, one of the most important decisions that you
to comply with their responsibilities, also known as a breach of their fiduciary duties, opens the successor trustee up to liability from the beneficiaries and even potential litigation, which can stall the estate distribution process. Some common breaches include self-dealing by the trustee using trust assets for their own benefit, the trustee causing damage to the trust property, or the trustee failing to be impartial toward the beneficiaries by favouring one over another. Many breaches made by a successor trustee are due to their own financial circumstances, neglect of their responsibilities, or sibling rivalry or bad blood between family members. I can speak first-hand as to the frustrations a beneficiary faces when a trustee who is not up to the task of managing a trust is put in charge. When I was 10 years old, my father passed away and left my half-sister in charge of his trust as the successor trustee. To put it simply, she never appreciated that our dad was with my mom or that she and I are sisters. The feelings she harboured towards me manifested in her actions as trustee. While she made the appropriate distributions from the trust for herself and my other two half-siblings, she refused to do anything in regard to the assets left to me in the trust. As a minor, there was not a lot that I could do and I wrote off what should have been my inheritance until nearly a decade later when I was contacted by a third party who had information about my inheritance. Of course, I contacted the successor trustee, my half-sister, to let her know that I had information about my inheritance and that I would appreciate her following up on the matter. She refused. She refused over and over again. I was merely a beneficiary and had no legal standing to pursue my inheritance, since the only person with that power was the successor trustee. It was not until I brought a case against my half-sister for breach of her fiduciary duties 14 years after my dad’s death that she was moved to make sure I received my inheritance. Although the case did not get very far and only involved a handful of hearings, I wholeheartedly believe that if it had been left up to my half-sister, I would not have received anything my dad intended to be mine. This experience is the reason I became an estate planning and probate attorney. It is my passion to help educate individuals, whether they are potential clients who need a trust, a successor trustee who is trying to navigate the waters of their fiduciary duties, a beneficiary who wants to make sure their interests in an estate are protected, or even someone who has been left to handle a probate of the estate of a loved one. will make – aside from deciding who is to receive what assets from the estate – is deciding who will be the successor trustee(s). The successor trustee will be the individual or individuals in charge of the trust when you are no longer able to manage the trust due to capacity reasons or death. The purpose of naming a successor trustee is to ensure that the instruction manual that is your revocable trust has someone capable of making sure your wishes are followed down to the to the very last period of the trust document itself and the laws surrounding trusts. It is the trustee’s responsibility to hold, manage and protect the trust property for the benefit of those who are to receive from it (known as the ‘beneficiaries’). As a result, it is imperative that the individual named by you as successor trustee be a person you can trust. Within most revocable trusts, there is reference to the general powers or duties of the trustee which are to be followed to carry out the purposes of the trust created under the trust documents in addition those conferred on trustees by law. Pursuant to the California Probate Code Sections 16000 thru 16015, trustees owe to the trust and beneficiaries the following duties: • Duty of loyalty; • Duty to avoid conflicts of interest; • Duty of impartiality; • Duty of disclosure; • Duty not to delegate; • Duty to keep trust assets separate; and • Duty to enforce or defend trust claims. Trustees are accountable to the beneficiaries for their actions. Any failure 16 LAWYERMONTHLY SEPTEMBER 2022 I can speak first-hand as to the frustrations a beneficiary faces when a trustee who is not up to the task of managing a trust is put in charge.
With all of that being said, when it comes to selecting successor trustees and beneficiaries it is a matter of considering the personalities of the individuals involved as you are establishing your trust. You may already have someone in mind to be your successor trustee. Many individuals feel most comfortable with choosing a child or family member or even a friend, and many parents who do not want to have their children feel like they are choosing a ‘favourite’ to be in charge after they are gone will name all of their children as co-trustees. The problem with naming more than one person as your successor is that it can lead to disagreements and discord depending on their relationships with each other. It is like the saying: “Too many chefs in the kitchen spoil the soup” – the same applies here. Too many successor trustees can prevent the trust from being properly administered, which can potentially result in another type of court process where the judge will have to instruct the trustees how to proceed. Therefore, it is important to consider whether the individual(s) you have in mind for your successor trustee(s) are: • Trustworthy • Highly responsible • Able and willing to follow the instructions set out in your trust without trying to take any shortcuts • Able to handle high-stress situations • Good with money management • Collaborative, communicative and accessible After the loss of a loved one, grief and even greed have a way of putting all those involved in the administration of a trust on edge. By choosing the right successor trustee, you are ensuring that your wishes are followed and probate is avoided with your trust. This is crucial in taking care of your estate and loved ones after you are gone. Additionally, another way to avoid future conflict, potential litigious situation, or disappointed expectations is by talking to your successor trustees and beneficiaries about your plans and intentions. It is important to inform them on how you intend to divide your estate and who will administer your trust. I may be an uncomfortable conversation, but in many cases, it will be a conversation worth having. Creating a trust is an investment worth making. You have everything to gain by protecting your legacy and assets from probate with a revocable trust. FEATUREOF THEMONTH 17 Contact Brianna Giliberto-Hermann Founder Law Office of Brianna J. Giliberto-Hermann 1730 West Cameron Avenue, Suite 200 West Covina, CA 91790, USA Tel: +1 626-391-8277 E: brianna@gilibertolegacylaw.com www.gilibertolegacylaw.com About Brianna Giliberto-Hermann My name is Brianna J. GilibertoHermann, Esq. Before I embarked on my legal career, I graduated as a dual major in art and art history on a performance scholarship at the University of La Verne while acting as a caregiver for my grandmother. I received my Juris Doctor degree from Western State College of Law along with a Certificate in Criminal Law Studies thanks to my innate skill in trial advocacy and passion for justice. I was selected as the recipient of the Wallace R. Davis Public Service Award in 2020. On 15 March 2021, I opened my own firm, the Law Office of Brianna J. Giliberto-Hermann, and I have successfully assisted hundreds of clients. The primary areas of the practice include estate planning, probate and trust administration.
Each month, Lawyer Monthly Magazine has the privilege of interviewing the brightest and most ambitious movers in the legal space. In these conversations we dig into their areas of expertise, learning more about their practice and the stories behind their pursuit of excellence. Introduced overleaf is personal injury attorney David Kwartler, who shares his perspective on his chosen field of law as it has been shaped by years of experience in supporting clients at their most vulnerable. He sheds light on the details of his practice and offers worthwhile advice to up-andcoming lawyers who may also be interested in pursuing personal injury law. MY LEGAL LIFE
David Kwartler fingers at each other, which will also extend the time taken. How do you help your clients receive full compensation? We full-court press every case in litigation. We file defaults, preliminary motions and discovery motions as soon as possible to push these cases along. What we have found is that there is a percentage of cases that we press that settle quickly because we have put the defendant in a precarious position via a default judgment or motion, which gives us a great advantage moving forward in the litigation. What makes a successful slip and fall claim? Proving notices is the most difficult element of a slip and fall claim, meaning that most successful claims are ones You support clients through slip and fall accidents, motor vehicle accidents, and cases of wrongful death. How does the general settlement process vary between these three injury types? Every case is different irrespective of its type. I often say to clients that every case is different, every insurance company is different and every adjuster within the same insurance company is different. Generally, the more complications a case has – such as cases with various defendants who could bear responsibility – would increase the time it takes for it to be resolved, which would generally not occur in car accident cases. Additionally, in slip and fall accidents and more complex cases the various defendants will often start pointing 20 LAWYERMONTHLYNOVEMBER 2022 My Legal Life Building a Life in Personal Injury Law Personal injury law occupies a different space from other areas of the legal sector, with its own unique complications in bringing cases to trial. Speaking to us this month on the subject is David Kwartler, an experienced personal injury lawyer with millions of dollars’ worth of awarded damages behind him. Here, he explores the considerations involved in litigating personal injury claims and what attracted him to pursue his own practice in the sector.
where the defendant created the hazard and thus notice is waived. Unfortunately, that is normally not the case, so having pictures of the exact cause of the fall and witnesses really goes a long way for us. For slip and falls in commercial properties where there is a chance of video capturing the incident, it is important for the clients to get to an attorney quickly so that a preservation letter can be sent. Most of the surveillance systems will erase footage after a certain amount of time so it is important to get to them before this occurs. What factors commonly complicate a motor vehicle accident settlement? Our offices are in New Jersey and Pennsylvania. Those not familiar with the laws in these states may not be aware of the concept of a ‘verbal threshold’ or a ‘limited tort’. In a nutshell, they are injury and impairment standards often included in auto insurance policies that policy holders must then overcome to be compensated. For a verdict sheet it would therefore be another hurdle to overcome to get to damages. What advice do you have for anyone looking to pursue a career in personal injury law? Get as much court, deposition, arbitration, expert depositions and trial experience as you can, as quickly as possible. The better and quicker you understand how these cases will look at trial, the better you will be. At trial, the cases can often turn on something that happened in the pleadings or on a single deposition or interrogatory answer. Knowing that will allow you to set up the cases in the best positive light if they do go to the jury. What was it that drew you to pursue personal injury law specifically? I was initially drawn to personal injury because it was the first job I was offered and I needed a job. Once i got going in it, I realised that it was the practice area for me. I like the competitive nature of the practice, whether it is with insurance companies or defence lawyers. More importantly, to me, is the entrepreneurial nature of the practice. Everyone you meet is a potential client, and when you do a good job they will spread the word. How do you strive to go above and beyond your competitors? At our firm we like to say that we cause fires, not put them out. A lot of lawyers are scrambling to get records or file David Kwartler is a partner at Kwartler Manus LLC who focuses his practice on prosecuting personal injury lawsuits. Over the course of his career he has successfully recovered millions of dollars in settlements for his injured clients in areas including motor vehicle accidents, slip and fall accidents and wrongful death claims. David also regularly sits as an arbitrator and Judge Pro Tempore in the Philadelphia Court of Common Pleas. whatever motion, which puts you on defence throughout the case. We like to be on offence. Being on offence allows you to dictate certain elements of the litigation, which can result in higher and quicker resolutions. If the case does go to trial, being on the offensive puts you in position to take advantage of certain elements that occurred during the litigation in front of the jury. Of your many career successes to date, which are you proudest of having achieved? Beyond the cases, I am most proud of our staff development. Some of our employees had no legal experience or much work experience prior to joining us. We have grown those recruits to be highly valued employees with real careers. About David Kwartler Contact David Kwartler, Partner Kwartler Manus LLC 1429 Walnut Street, 14th Floor, Philadelphia, PA 19102, USA Tel: +1 267-457-5570 E: dkwartler@kmfirm.com www.kmfirm.com Kwartler Manus LLC is a Philadelphiaheadquartered personal injury law firm. The firm’s team have experience across a range of practice areas, from construction accidents to premises liability and wrongful death, and have recovered millions in damages for their clients.
These articles come from guest authors across a broad range of specialisations. Rather than focusing on subjects necessarily pertinent to law firms or the world of business, our special features most often touch upon new legislation, common law and the intersection of the contemporary legal landscape with the public interest. Featured in this month’s articles are spotlights on current developments relevant to all firms, from the introduction of the Register of Overseas Entities in the UK to fostering greater inclusion through the use of language in legal contracts. Also featured are insightful dives into the trends shaping sports law in 2022 and Scotland’s potential to become a favoured destination for class actions. SPECIAL FEAT URES
24 LAWYERMONTHLY SEPTEMBER 2022
The State of Sports Law in 2022 With the Rugby World Cup in full swing and the FIFA World Cup looming large on the horizon – and with many major sporting events in between – now is an ideal time to take stock of the current sports law landscape. The sporting world has faced several rocky years of pandemic restrictions and geopolitical turmoil, yet remains a resilient presence in culture and business worldwide. Here, we take a look at the trends that have shaped the sector in 2022. What have been the most interesting moves, and what can we expect to see carried through to the new year? Written By Oliver Sullivan SPECIAL FEATURE 25
Gambling and UK Sport This year, the UK has seen gradual progress towards reforming its gambling laws regarding sport. The UK Gambling Act Review of 2022, a government white paper reviewing the 2005 Gambling Act and setting forth recommendations for an overhaul of the UK’s betting laws, has been speculated to have particularly weighty implications for the sport sector. This will come on top of a rise in taxes for online casinos and sports betting companies enacted this April and will create new legal considerations for the promotion and marketing of sport-adjacent betting services. Among the report’s recommendations are purported to be controls on wager levels, prize limits, testing requirements, and various changes to so-called ‘VIP programs’ offered by betting companies to higher-paying gamblers. The recommendations are also suspected to include a ban on gambling companies advertising on sports teams’ shirts, a move that is predicted to cost football clubs around £40 million per year should it be enacted. However, progress towards a concrete change regarding these laws has been slow in arriving, owing in large part to political turmoil in the country. The white paper was originally slated for release in 2019, but has been mired in delays and pushed back four times, with the latest such delay occurring in October towards the beginning of former Prime Minister Liz Truss’s premiership. Sports marketing divisions remain on watch for potential seismic changes that may occur as a result of the paper’s eventual publication, though the uncertainty its contents generate in the meantime is unlikely to do any favours for the sector or the wider economy. 26 LAWYERMONTHLYNOVEMBER 2022 This year, the UK has seen gradual progress towards reforming its gambling laws regarding sport.
Right to Protest The rights of athletes and fans to demonstrate support for social justice movements has taken centre stage in 2022, just as it has in previous years. Rules regarding activism by players and spectators vary between sporting organisations, with the Olympic Games’ Rule 50 prohibiting any “kind of demonstration or political, religious or racial propaganda” being the most well-known. Rule 50 has, however, been largely relaxed in instances of protests that are not disruptive and that do not target specific peoples or countries. Athletes have taken advantage of this to promote their causes of choice, with perhaps the most widely recognised being the act of taking a knee in protest against police brutality and racism. The act of protest at sporting events has come into especial prominence as the World Cup looms, with UK foreign secretary James Cleverly generating controversy by football fans to “be respectful” of host country Qatar, which criminalises homosexuality. There are widespread fears that Qatari gamegoers planning to peacefully advocate on behalf of LGBTQ+ rights during the World Cup may face persecution. These fears of governmental reprisals against demonstration are not unfounded. Similar threats were made during the Beijing 2022 Winter Olympics, where protesting athletes were warned of consequences if their actions were judged to “violate the Olympic spirit”. Thankfully, the Winter Olympics concluded without severe repercussions (even for athletes who did protest), but in the aftermath of the apparent disappearance of Elnaz Rekabi – athe Iranian rock climber who competed in the 2022 IFSC Climbing Asian Championships without a headscarf – even greater international attention is being paid to the safety of nonconforming athletes in the upcoming games. The actions that are taken during the upcoming FIFA World Cup are certain to set the tone regarding sportsrelated protests for the year to come. SPECIAL FEATURE 27 The actions that are taken during the upcoming FIFA World Cup are certain to set the tone regarding sports-related protests for the year to come. COVID-19 and Finances In addition to its direct impact upon sportspeople and fans, the COVID-19 pandemic has had a deleterious effect on almost every avenue of sports revenue. Mass cancellations of sporting events in the early and middle period of the onset of COVID-19, with spectators only returning to live sporting events in a reduced capacity from mid-2021 onwards, The disruption has left a financial hole worth billions of pounds in revenue, which has led sporting institutions to look for new sources of income. One consequence of this has been a boom of interest in cryptocurrency and ‘Web3’ assets, including the launch of platforms such as Aera for the trading of sports-focused NFTs. Though the NFT market has seen a significant downturn since 2021, this has not prevented digitised collectibles (generally related to football) from proving to be popular purchases throughout the summer. Should their popularity endure, NFTs may become a mainstay of the sports sector, bringing with them a number of regulatory and IP-related concerns for governing bodies to tackle. In the meantime, the legal minds of the sports sector must continue to grapple with the effects of contracts’ force majeure clauses as they relate to event cancellations provoked by COVID-19. Many such cases are still ongoing, and rulings to date imply that the pandemic may be regarded as a force majeure event, but only in such cases as European Professional Club Rugby v RDA Television, where ‘pandemic’ or global health crises are explicitly mentioned. Contracts that lack such a catch-all clause are unlikely to merit the same recognition.
28 LAWYERMONTHLYNOVEMBER 2022 Special Feature The Register of Overseas Entities (the “Register”) has been introduced by the UK government as a strategic way to fight economic crime, with the additional goal of ensuring that legitimate businesses continue to consider the UK as an ideal jurisdiction in which to invest. Although the introduction of the Register has been on the radar for some time, it seemingly gained importance earlier this year and was fast-tracked through UK Parliament. In this article, Iryna Vale of TMF UK explains what the Register is and what overseas entities need to do if they are in scope. Under the new rules, anonymous foreign owners will have to reveal their identity and records will be required to be updated on an annual basis. The Register of Overseas Entities: HowDoes It Affect Your Firm?
• They hold, directly or indirectly, more than 25% of the shares in an overseas entity • They hold, directly or indirectly, more than 25% of the voting rights in an overseas entity • They hold the right, directly or indirectly, to appoint or remove a majority of the board of directors of an overseas entity • They have the right to exercise, or actually exercise, significant influence or control over an overseas entity • Are trustees of a trust, members of a partnership, unincorporated association or other entity that fulfil one or more of the conditions above • Where a person has the right to exercise, or actually exercises, significant influence or control over the activities of that trust or entity Until the introduction of the Act earlier this year, only UK entities were required to disclose their owners on a public register. However, under the new rules, The Register came into force in the UK on 1 August 2022 through the new Economic Crime (Transparency and Enforcement) Act 2022 (the “Act”). The Act requires any overseas entity (defined below) which currently owns or in the future acquires freehold or long leasehold land in the UK to register its ownership with Companies House. This must include a declaration of the beneficial owners or managing officers and needs to be completed by 31 January 2023. The UK government defines an overseas entity as “a legal entity, such as a company or other organisation, that has legal personality and is governed by the law of a country or territory outside of the UK.” According to this definition, the Republic of Ireland is considered an overseas jurisdiction. An individual or entity is described as a beneficial owner if they meet one or more of the following conditions: anonymous foreign owners will have to reveal their identity and records will be required to be updated on an annual basis. Once implemented, it will be simpler for the authorities to establish an organisation’s beneficiaries or controlling parties and thus to monitor and prevent fraudulent activity. The stringent data protection laws in place in the UK mean that, although cited as a public record, Companies House will not display any personal data of the beneficial owners. It is mandatory to provide information such as a complete date of birth, residential address and email address, but these are for the purpose of data collection only. The Act is applicable to all overseas entities who have purchased property or land on or after 1 January 1999 in England and Wales or 8 December 2014 in Scotland. To prevent non-disclosure by way of a SPECIAL FEATURE 29
About Iryna Vale Iryna Vale is Head of Corporate Secretarial Services at TMF UK. A chartered company secretary with over 15 years’ work experience in the company secretarial field, her previous experience includes independently managing portfolios of up to 600 clients. About TMF Group TMF Group is an international provider of administrative services. Its 9,100 experts provide legal, financial and employee administration through the Group’s 120 offices worldwide. Contact Niamh Breslin Territory Manager UK IDA Ireland Shaftesbury House, 151 Shaftesbury Ave, London WC2H 8AL, UK Tel: +44 02073 799728 www.idaireland.com sale, the Act also applies retrospectively to property or land sold in the UK on or after the 28 February 2022. While you may not currently fall into the categories above, for any future sale you will be required to demonstrate your compliance with the Act and supply your registration to the new buyer. The penalties imposed on those who are not compliant with the Act can include fines of up to £2,500 a day or up to five years’ imprisonment. Restrictions will also be imposed when buying, selling, transferring, leasing or charging property or land. All overseas entities that fall within the defined parameters must provide the required information on both the entity itself and its ultimate beneficial owners. Information on an entity’s managing director must be provided in cases where a beneficial owner cannot be determined. Where a foreign trust holds UK real estate, the trustee(s) of that trust is considered a registrable beneficial owner and details about the trust must be shared as well. For further clarity of the necessary requirements, please refer to the UK government guidance. A UK-regulated agent must complete verification checks on all beneficial owners 30 LAWYERMONTHLYNOVEMBER 2022 and managing officers of an overseas entity before it can be registered. Completion of Register filings with Companies House have demonstrated that this process is rarely straightforward. In certain cases, registration can be even more challenging, especially when it is a condition of sale. This increase in complexity requires keeping to a tight deadline, given that completion must be submitted by 31 January. Another example of a complex scenario is where the trustees of a trust are registrable beneficial owners. Information on that trust will need to be provided, including: • Current or past beneficial owners • Beneficiaries • Settlors • Grantors • Interested persons With no monetary threshold conditions, it is surprising that at the time of writing there have been just 2,299 registrations, which according to some estimations is fewer than 10% of the entities which are in scope. A necessary consideration for those in scope is to register now to avoid both noncompliance and any further restrictions during any future sale process.
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