Local authorities are overwhelmingly in favour of requiring monitoring officers to be legally qualified, a recent consultation by Solicitors in Local Government (SLG) and the Law Society has revealed. Some 70% of the 60 local authorities who responded to the consultation wanted monitoring officers, who are responsible for reporting contraventions of the law and cases of maladministration and injustice, to be legally qualified. Some respondents suggested the roles of monitoring officer and chief legal officer should be combined. Those opposed to the change said there was no evidence that the current arrangements were failing, and non-lawyer monitoring officers had ready access to legal support and advice from the authorities’ legal teams. SLG vice-chairman Stephen Turner said aspects of the monitoring role had become ‘almost judicial’.
The Gazette reported recently there was ‘no evidence that referral fees harm consumers’ according to an ‘economic analysis’. The report focused on a link between referral fees, the cost of legal services and the level of ‘customer’ satisfaction. Of far greater significance is any effect of the referral fee market on a solicitor’s core duties to: uphold the rule of law and the proper administration of justice; act with integrity; not allow his/her independence to be compromised; and not behave in a way likely to diminish trust in the legal profession. Any evidence that this market compromises the profession’s ability to meet those duties far outweighs the implications of an ‘economic analysis’. This is not a question of economics. We are not insurance brokers, bankers or car dealers. We are officers of the court tasked with upholding the rule of the law and performing a role fundamental to the administration of justice. Questions about the price of our work, the satisfaction of individual ‘customers’ and the profits of those that trade in the misfortunes of others (in the personal injury field) must be secondary to those far more important issues I have highlighted and which are of vital concern to the whole of society. ‘It’s the economy stupid’ went the mantra of the Clinton administration. We should not be guided by the same considerations and allow economic concerns to dictate the character of the profession and undermine the core responsibilities of those that comprise it. When reaching a decision, I hope the Legal Services Board is guided by the interests that matter most and not the economy (stupid). Separately, the spurious genie in the bottle argument is rearing its illogical head once again. Is it really beyond the wit of the Solicitors Regulation Authority to re-impose a ban on referral fees and enforce it? Surely policing an outright ban would be easier than enforcing the current regulations. Even if not, the risk some may continue a harmful or undesirable practice once (and if) it is decided that practice is harmful or undesirable should not operate to justify declining to intervene to see that the activity is stopped. Richard Edwards, E Rex Makin & Co, Liverpool
Some women still reckon the profession treats them pretty shoddily at times, but according to Cherie Booth QC, things used to be a heck of a lot worse. Giving the Association of Women Solicitors’ Fiona Woolf lecture at the Law Society last week, Booth recalled that when she was called to the bar in 1976, only 10% of applicants were women. Her pupil master was Derry Irvine – later, of course, to become lord chancellor in the Labour government. When she attended her first High Court case with Irvine, he apparently refused to let her come into the robing room because there was a ‘huge urinal’ in the middle. Were the male barristers in the habit of taking a communal leak while discussing their opening arguments? On completing a pupilage, Booth noted that women pupils often missed out in favour of male rivals. Indeed in her case, the pupilage was awarded to fellow pupil, Anthony Blair. Booth revealed that when she had a young family, she took very little maternity leave because she did not want to give anyone an excuse to say she was not up to the job. But, she now realised, that had simply been reinforcing the system, not smashing it. When she ‘unexpectedly’ had young Leo, she took more time off. As the Eurythmics also (almost) noted, Booth said that ‘behind every great woman, there’s a great woman’. In Booth’s case, she says she could not have succeeded without her cleaner. No mention of Carole Caplin, curiously.
The European Court of Justice has ruled that legal professional privilege does not apply to legal advice given by in-house lawyers in EU competition law investigations. Ruling in the Akzo Nobel case today, the ECJ said that an in-house lawyer, regardless of their membership of a law society or bar association, ‘does not enjoy the same degree of independence from his employer as a lawyer working for an external law firm does in relation to his client.’ The court held that, in reaching this decision, it had not violated the principle of equal treatment in relation to internal and external lawyers. The court followed the opinion of advocate general Juliane Kokott, who recommended to the ECJ in May that legal privilege should not attach to companies’ internal communications with their in-house lawyers. Law Society chief executive Desmond Hudson said: ‘In-house lawyers are the frontline guarantor of compliance. It is sad that while the EU strives to legislate for higher standards of corporate governance and risk management, the decision of the court in effect rejects this key tool in achieving this aim. ‘In-house lawyers are the ally of EU policy-makers, because broader societal benefits stem from companies behaving legally, ethically and well. In-house lawyers ensure such behaviour best when they know their full, frank and independent legal advice can be given in confidence. ‘The court has missed its opportunity to recognise how the role of the in-house lawyer has developed since this issue was last before it. More and more companies now have in-house lawyers who make an increasingly important contribution to ensuring that the business is informed of and meets its legal and regulatory obligations.’ He added: ‘I hope EU policy-makers will come to appreciate the great value that such lawyers bring to both the private and public sectors. It is in their interests to trust these lawyers to get on with their jobs and to trust their regulators to guarantee their independence and ethical behaviour. ‘A solicitor is a solicitor, whether working in private practice or in commerce and industry.’
David McCluskey is a partner at Peters & Peters Last week, the first corporate prosecution under the much-heralded Corporate Manslaughter and Corporate Homicide Act 2007 ended with a fine of £385,000 against Cotswold Geotechnical Holdings. This followed its conviction for corporate manslaughter at Winchester Crown Court two days earlier. The Crown Prosecution Service has said that it is considering other cases which may lead to proceedings. It is sincerely to be hoped that such cases are not in the mould of Cotswold Geotechnical, otherwise the new act will have begun not with a bang, but with a whimper. When the draft bill was introduced in March 2005, following the Law Commission’s 1996 report which proposed the reform, a major claim made on behalf of what ultimately became the 2007 act was that it would be ‘P&O proof’. In other words, if the Zeebrugge ferry disaster or something similar were to recur, the company would be convicted of the proposed new offence. The perceived problem with the old law (and the reason behind the abandonment of the prosecution of P&O) was the so-called ‘identification principle’, which in the context of corporate manslaughter meant that, before a company could be convicted of manslaughter, a ‘directing mind’ – an individual or individuals at the top of the corporate hierarchy – had to be found guilty of manslaughter first. The new law departed significantly from the Law Commission’s proposals by requiring a ‘substantial element’ of the breach of duty that consists in the offence to be ‘the way its activities are managed or organised by senior management’. Such senior management are then defined as those who play significant roles in making decisions about how the company’s activities are organised, or those who actually manage or organise those activities. It scarcely needs to be said that terms such as ‘substantial element’, ‘senior management’, and ‘significant role’, arguably diminish the act’s intended departure from the identification principle. The CPS has resisted overplaying the significance of the Cotswold Geotechnical conviction in the context of prosecution for corporate manslaughter as a whole, and rightly so. The nature of that case is such that it unfortunately tells us nothing whatsoever about how these new principles operate. Cotswold Geotechnical is a company employing just eight individuals. Its director was both in overall control of the way the company managed its affairs and present on site shortly before the tragic accident happened. As such these facts bear a startling resemblance to the first conviction of a company for manslaughter under the old law, in December 1994. Kite and OLL Ltd, a ‘one-man band’ company, was convicted at Winchester Crown Court following the conviction of its managing director and sole owner, Mr Kite. While Mr Eaton, the director of Cotswold Geotechnical, was originally charged with manslaughter, those charges were stayed after he was ruled unfit to stand trial. Notwithstanding that, it appears that a prosecution of Cotswold Geotechnical might have been just as successful under the old law. The true test of the new legislation will come with a prosecution of a large company which has multiple directors and which already purports to have compliant health and safety procedures. Not only will such companies have greater resources at their disposal to fight any such prosecution, they will already have invested substantial time and money in health and safety compliance, and in consequence will be much better placed to argue that the accident – whatever it might be – was indeed a tragic accident which did not arise out of a relevant breach of the company’s. If the Cotswold Geotechnical conviction is to be a historical footnote then it is as a sentencing guide rather than a guide to a successful prosecution. The fine imposed, to be paid over 10 years, was substantially more than the reported annual turnover of the company, said to be in a ‘parlous financial state’. Even so, the fine is below the recommended starting point of £500,000 set by the Sentencing Guidelines Council (SGC). The SGC had recommended that too much of a fixed correlation between turnover and fine as a percentage thereof could provide a perverse incentive to manipulation of corporate structure. Having said that, the judge, in passing sentence, remarked that if the fine caused the company to go into liquidation then that was an outcome ‘unfortunate but unavoidable’.
A solicitor and her practice manager husband have brought the first employment tribunal case attempting to claim for wrongful dismissal on the grounds of caste discrimination. Amardeep Begraj, 33, and her husband Vijay, 32, who are of Indian descent, met while working at Coventry firm Heer Manak. They claim that when they announced their plans to marry, their employers tried to discourage them because Vijay is from the Dalit or ‘untouchable’ caste and Amardeep from a higher caste, the Jat. Inter-marriage between castes can lead to ostracism in traditional Indian society. Heer Manak has dismissed the claims as ‘ludicrous’. Amardeep Begraj told the tribunal that after their wedding she was burdened with too much work compounded by too little secretarial help, and was paid less than the practice’s other solicitors. Her husband claimed that after the birth of their child the firm tried to persuade them to resign. Vijay Begraj, who had worked for the firm for seven years, was dismissed last year. His wife resigned in January. Heer Manak’s senior partner KS Manak said the claims were ‘ludicrous’ and being brought as a ‘smokescreen’ to cover the failings of the individuals concerned. He added: ‘None of the evidence has been corroborated.’ A spokesman for national firm Shoosmiths, acting for the claimants, declined to comment. The case is being heard at Birmingham Employment Tribunal and has been adjourned until March 2012. Caste is not specifically included under present discrimination laws, but the government is currently reviewing whether it should be added as a ground for discrimination.
Fiona Woolf is a consultant at CMS Cameron McKenna specialising in energy and infrastructure reforms and projects. She was awarded a CBE for her work on electricity reforms and has advised over 25 governments on reform, strategy and privatisation. She was president of the Law Society in 2006/07 This year, the Law Society will welcome its fourth woman president. As of 2010, 45.8% of solicitors with practising certificates were women – a figure that has nearly doubled in 10 years. In fact, many senior and influential figures in the legal profession are women and we continue to drive change, make our presence felt and adapt to the constant challenges of these demanding times. Extensive research has shown that women are as ambitious as men, make great leaders and are passionate about what they do. So why are more of us not becoming partners? Why are we consistently earning less than our male colleagues? You would expect the effect of greater numbers of women entering the profession to take a few years to make an impact at the top, but this still does not explain the huge disparity. You would expect more gender diversity, particularly in the large firms. Currently, just 21% of partners in private practice law firms in England and Wales are women. Something very odd is happening to the trajectory of women’s careers between admission to the roll and the most senior levels that either prevents, or dissuades us from going to the very top. A Law Society study in conjunction with the Association of Women Solicitors revealed that ‘organisational culture, outdated perceptions of women, resistance to contemporary management practices such as flexible working, and perceptions of client expectations meant the legal sector was still very male-dominated, causing real issues for the retention and advancement of top female talent’. The survey is pretty damning, with women solicitors who did achieve partner or senior status reporting they did so at the expense of personal and family relationships. It’s no secret – or surprise – that making partner is a tough road, regardless of your gender. But I think the profession can learn to accommodate those who have ‘extra-curricular’ commitments; otherwise firms of all sizes will lose out on some very talented people in whom they have invested both time and money. With its flexible working protocol, launched late last year, the Law Society provides a compelling business case for flexible working. This isn’t just a ‘woman’s thing’. These practices will allow many lawyers to achieve that fabled work-life balance, without compromising results for firms. While law is undeniably an extremely demanding, time-consuming career and for anyone, and getting to the top requires a great deal of sacrifice, I am confident the profession can work towards disabusing the notion that you need people at their desks 24/7 for them to do a good job. I think the profession – and the City – will evolve to accommodate a more diverse workforce. It makes eminent economic sense. In a fortnight, hundreds of successful women lawyers from around the world will meet at the International Women in Law Summit on 8 March at the Law Society, where I am among the keynote speakers. I hope this will be a great opportunity to debate in depth the key issues that are slowing down women’s progress. The theme of the event is ‘setting the agenda for change’ and I am confident, with the wealth of talent and strong voices among us, that this will be achieved at a faster pace. As the second female president of the Law Society, the progress of women in the profession is a subject very close to my heart. This International Summit promises a unique opportunity to discuss and respond to the key issues that are slowing down the current progress of women, and to work together to set a new agenda for change. A pre-summit networking dinner will take place on 7 March. Call the Law Society on 020 7222 2525 for more information.
Re Lehman Brothers International (Europe) (in administration): Supreme Court (Lords Hope DP, Walker, Clarke, Dyson and Collins): 29 February 2012 Administration – Client funds – Company providing services for clients wishing to invest in securities Section 139 of the Financial Services and Markets Act 2000 expressly permitted rules to make provision which resulted in clients’ money being held on trust in accordance with the rules. Chapter 7 (Client money: MiFID business) of the Client Assets sourcebook issued by the Financial Services Authority was commonly referred to as CASS 7. MiFID was an abbreviation for the Markets in Financial Instruments Directive (EC) 2004/39. CASS 7 had evolved from earlier regulatory instruments to transpose MiFID and its implementing Directive, Commission Directive (EC) 2006/73. CASS 7 provided for the segregation of client money and created a statutory trust over client money to support and reinforce the purposes of segregation. CASS 7.4.14G dealt with payment of money into a client business account and set out two approaches that a firm could adopt in discharging its obligations under the MiFID client money segregation requirements, namely (a) the normal approach; or the (b) the alternative approach. Under the normal approach a firm that received client money should either pay it promptly into a client bank account or pay it out in accordance with the rule regarding the discharge of a firm’s fiduciary duty to the client. Under the alternative approach, a firm that received client money should: (a) pay any money to or on behalf of its clients out of its own account; and (b) perform a reconcilaition of records and accounts required under CASS 7.6.2R. CASS 7.7.2R set out the terms on which a firm held and received client money as trustee and CASS 7.9.4R stated that a ‘primary pooling event’ (PPE) occurred, inter alia, on the failure of the firm. The glossary to CASS 7 defined a ‘secondary pooling event’ as an event which ‘occurs on the failure of a third party to which client money held by the firm has been transferred’ under the relevant provisions. CASS 7.9.6R stated that if a pooling event occurred: ‘(1) client money held in each client money account of the firm is treated as pooled; and (2) the firm must distribute that client money in accordance with CASS 7.7.2R, so that each client receives a sum which is rateable to the client money entitlement calculated in accordance with CASS 7.9.7R.’ When first read, CASS 7 appeared to provide a relatively straightforward and intelligible code for the safeguarding of client money by regulated firms. In an ideal world, the flawless operation of the scheme created by the CASS 7 rules would ensure first, that the clients’ money could not be used by the firm for its own account and secondly, that upon the firm’s insolvency, the clients would receive back their money in full, (subject only to the proper costs of its distribution) free from the claims of the firm’s creditors under the statutory insolvency scheme. The rules would achieve those twin objectives by ensuring that, promptly upon receipt, client money was held by a firm as trustee, separately and distinctly from the firm’s own money and other assets, and therefore out of the reach both of the firm (for the conduct of its business) and of the firm’s administrator or liquidator upon its insolvency (for distribution among its creditors). Lehman Brothers International (Europe) (LBIE) was incorporated as an unlimited company with its head office in London. It was the principal European trading company in the Lehman Brothers group. It was authorised and regulated by the FSA. LBIE was not a licensed deposit-taker, but was authorised to hold clients’ money. Its ultimate holding company was Lehman Brothers Holdings Inc, a company incorporated in Delaware which was put into administration on 15 September 2008. The difficulties that had arisen in the administration had led to several applications to the Companies Court for directions pursuant to paragraph 63 of schedule B1 to the Insolvency Act 1986. Probably the most contentious and difficult of those applications was the client money application. The combination of a massive failure to identify and segregate client money, coupled with the credit loss shortfall attributed to the failure of another LBIE affiliate, Lehman Brothers Bankhaus AG (Bankhaus), had thrown up a series of fundamental problems in the interpretation and application of the rules in CASS 7 to LBIE’s business and insolvency. In the case of LBIE, there had been a secondary pooling event, namely the failure of Bankhaus, as well as a primary pooling event, namely the failure of LBIE. In December 2009, the High Court made an order giving directions on a range of issues concerned with client money (see  All ER (D) 143 (Jan)). Four general issues emanating from that application were made the subject of an appeal to the Court of Appeal. Those issues were closely connected and depended upon the application of CASS 7. The Court of Appeal allowed the appeal on two of the four issues. Permission to appeal or cross-appeal to the Supreme Court in respect of three of those issues was granted to GLG, a representative of LBIE’s fully-segregated clients. The issues were: (i) when did the statutory trust created by CASS 7.7.2R arise; (ii) whether participation in the notional client money pool (CMP) was dependent on actual segregation of client money; and (iii) whether the primary pooling arrangements applied to client money held in house accounts (the client money account issue). The appeal would be dismissed. (1) Where money was received from a client, or from a third party on behalf of a client, it would be unnatural, and contrary to the primary purpose of client protection, for the money to cease to be the client’s property on receipt, and for it (or its substitute) to become his property again on segregation. It would also be contrary to the natural meaning of the comprehensive language of CASS 7.7.2R. Segregation without a trust would not achieve MiFID’s objective. Under the alternative approach, an immediate trust of identifiable client money did provide protection, though mixed funds are subject to a variety of risks. The absence of express restrictions, under the alternative approach, on use of clients’ money while held in a house account did not mean that the firm was free to use it for its own purposes. Its obligation was to segregate it promptly, and both CASS 7.3 and the general law of trusts would prevent use of clients’ money for proprietary purposes. There were at least two methods, one contemplated by CASS 7.4.21R, of ensuring the protection of clients’ money temporarily held in a house account. The most formidable argument in favour of segregation (premised on the view that the provision of the distribution rules in CASS 7.9.6R(1) applied only to segregated funds) was that there was under the alternative approach potentially a ‘black hole’ into which clients’ money might vanish, so as not to be caught by the distribution rules. That was a point of substance, but it did not outweigh the opposing arguments. To allow a limited defect of the alternative approach to dictate the interpretation of the essential provisions of CASS 7.2 would be to let ‘the tail wag the dog’. Further, the alternative method was available not for the convenience of the firm, but as a better means of securing client protection. Both the normal approach and the alternative approach were intended to achieve a high degree of client protection, either by immediate segregation or by very prompt segregation. Moreover, when the firm was using money for its own purposes, it was treated as withdrawing its own money from a mixed fund before it touched trust money (see ,  of the judgment). (2) CASS 7.9.6R(2) should be read as a whole, including the words which followed the comma after ‘in accordance with CASS 7.7.2R’. So read, the better interpretation was that the right to share in a distribution was given to ‘each client’ of the firm, so that all clients with a ‘client money entitlement’ were entitled to share. That was what CASS 7.9.6R(2) stated. The reason for referring back to CASS 7.7.2R was not to identify the client money that was to be distributed (that was done in CASS 7.9.6R(1) and (2)). It was to introduce the order of priorities referred to in CASS 7.7.2R. Accordingly, for example, the incorporation of CASS 7.7.2R(2) threw the costs properly attributable to the distribution of client money on to the client money (rather than on to the general assets of the firm). The costs of distribution would have to come from the trust before division to clients (see  of the judgment). The general scheme of CASS 7 was that all client money was subject to a trust that arose upon receipt of the money by the firm. That included money received from the firm’s affiliated companies. The client money rules were, therefore, intended to protect all the clients’ money received prior to a PPE. The distribution rules were intended to protect all the clients’ money in the event of a PPE. There was nothing surprising in the notion that, once a PPE occurred, the treatment of client money was subject to a different regime from that to which it had been subject before It was not inherently unlikely that the draftsman intended that clients with established proprietary interests in segregated funds should have those interests disturbed by the distribution rules in the event of a PPE. There was no a priori reason why the draftsman would not have intended to produce a scheme pursuant to which the protection afforded to clients was modified in the event of a PPE. There was nothing unrealistic in a scheme which provided that, in the event of the failure of a firm, the beneficial interests in the client money were adjusted so as to provide that each client received a rateable proportion of the aggregate of all the client money; in other words that all clients share in the common misfortune of the failure. Accordingly, the distribution model underlying the CASS 7 trust differed from that of private law (see ,  of the judgment). Participation in the CMP was not dependent on actual segregation at the time of the PPE. Such a purposive interpretation supported the claims basis for participation and better reflected the fact that all client money was subject to the statutory trust and that CASS 7 was intended to give effect to the Directives whose overriding purpose was to safeguard the assets of all clients and to to provide all clients with a high degree of protection (see ,  of the judgment) (Lord Hope and Lord Walker dissenting). (3) As a matter of ordinary language, the phrase ‘client money account’ was capable of meaning: (i) an account which contained or was intended to contain exclusively client money or (ii) an account of the firm which contained client money. Even where a firm was fully compliant, CASS 7 contemplated that client money would be held in the firm’s own account. Accordingly, where the ‘alternative approach’ of payment of client money into a client bank account was adopted under CASS 7.4.16G, 7.4.18G and 7.4.19G, the firm might receive client money into its own bank account before (on the next business day) paying it out to or on behalf of the client. The question of whether a house account in which client money is held was a ‘client money account of the firm’ arose, therefore, both in relation to money held by the firm where it adopted the alternative approach and where it wrongly retained client money in its own account. Since that examination of the text showed that there were two possible interpretations of the phrase ‘each client account of the firm’, the correct interpretation should be the one that best promoted the purpose of CASS 7 as a whole (see ,  of the judgment). The fundamental purpose of CASS 7 was to provide a high level of protection for client money received by financial services firms. That was why all client money received from or held for or on behalf of a client in the course of, or in connection with its MiFID business (CASS 7.2.2R) was held on trust upon receipt and why the other client money rules in CASS 7.1 to 7.8 were expressed as they were; and that was the policy underlying the distribution rules. To exclude identifiable client money in house accounts from the distribution regime would run counter to that policy (see ,  of the judgment). The pooling at the PPE included all client money identifiable in any account of LBIE into which client money had been received and was not limited to client money in the firm’s segregated accounts. That conclusion was consistent with and reinforced the conclusion reached on the client money account issue (see ,  of the judgment) (Lord Hope and Lord Walker dissenting). Decision of Court of Appeal  All ER (D) 15 (Aug) affirmed. Antony Zacaroli QC, David Allison and Adam Al-Attar (instructed by Allen & Overy LLP) for GLG; Jonathan Crow QC, Jonathan Russen QC and Richard Brent (instructed by Field Fisher Waterhouse LLP) for Lehman Brothers Finance AG; Jonathan Crow QC, Jonathan Russen QC and Richard Brent (instructed by Norton Rose LLP) for Lehman Brothers Inc; Robert Miles QC and Richard Hill (instructed by Simmons & Simmons) for CRC Credit Fund Ltd; Iain Milligan QC, Rebecca Stubbs and Richard Fisher (instructed by Linklaters LLP) for the administrators; David Mabb QC and Stephen Horan (instructed by the FSA) for the FSA.
The legal sector is the latest to catch the choral bug (cue jokes about solicitors singing for their supper). Global firm Norton Rose last month sang its way to the Office Choir of the Year 2012 award after a virtuoso performance in London. Singing pieces from Handel and Beethoven – as well as the slightly more modern Somewhere Over the Rainbow – Norton Rose held off competition from fellow law firm Olswang as well as UBS and Channel 4. The 50-odd members fit practice in around a busy work schedule, with rehearsals held before office hours on Thursday morning. The choir’s next public outing is the City of London Festival in the Guildhall Yard on 3 July.
To continue enjoying Building.co.uk, sign up for free guest accessExisting subscriber? LOGIN Stay at the forefront of thought leadership with news and analysis from award-winning journalists. Enjoy company features, CEO interviews, architectural reviews, technical project know-how and the latest innovations.Limited access to building.co.ukBreaking industry news as it happensBreaking, daily and weekly e-newsletters Subscribe now for unlimited access Subscribe to Building today and you will benefit from:Unlimited access to all stories including expert analysis and comment from industry leadersOur league tables, cost models and economics dataOur online archive of over 10,000 articlesBuilding magazine digital editionsBuilding magazine print editionsPrinted/digital supplementsSubscribe now for unlimited access.View our subscription options and join our community Get your free guest access SIGN UP TODAY