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Laurence Simons Newsletter April 2016

Posted by: Laurence Simons 31/03/16
Are legal aptitude tests too easy?
Africa’s legal sector continues to grow
Lawyer under fire: Mafia turn on gangland lawyer 
Is an ‘online court’ a threat to the legal profession?
General Counsel or ‘Loophole Finder’?
Looking forward - growth in APAC and EMEA


Are legal aptitude tests too easy?

Following a review the UK’s Bar Standards Board has confirmed that it will raise the pass mark for its controversial Bar Course Aptitude Test in an attempt to block candidates who would not be able to complete the training.

The mandatory test which costs £150 to take, has proved to be less of an effective screening tool and more of an administrative and financial obligation for would be barristers. Scored on a 20 to 80 point scale students previously only had to obtain 37 points on the initial test to progress onto the Bar Professional Training Course.

Following a suspension of the test in December the BSB has decided to increase the pass score to 45 after the review found that in the 2013 just 0.6% of the total cohort were unable to pass the exam. Under the new revisions 16.6% of the 2013/2014 cohort would have failed the exam. The new BCAT will offer students a numerical grade, as opposed to a pass or fail, as well as advice on their prospects for passing the Bar, which can cost between £12,000 and £19,000 in fees alone.

However, Bar Council policy analyst, Alex Cisneros argues that a pass mark of 45 is not high enough to raise the quality of aspiring barristers saying “If the BCAT is to serve a gatekeeping function, it must filter out students who have no reasonable prospect of obtaining pupillage or practicing as a barrister, not just those who have no prospect of passing the BPTC.”

Will imposing stricter aptitude tests improve the quality of candidates progressing to BCAT training or discourage potential legal talent from applying?


 

Africa’s legal sector continues to grow

The African Development Bank has allocated $22 million to help nurture the African legal services market, improving the continent’s legal expertise, and increasing access to justice. The African Legal Support Facility has been awarded the sum to “to support legal advisory and capacity building initiatives in fragile states.”

The funding will help to strengthen legal expertise in relation to managing relationships with so called ‘vulture-funds’, private equity funds who invest in poorly performing companies or debt that is likely to default imminently.
Funding will go towards providing technical assistance and supporting the development of African countries’ legal sectors to ensure greater levels of equality when they are require to face well-resourced funds represented by top law firms.

Director of the AfDB’s transitional support department, Sibry Tapsoba, said in a statement “This joint initiative provides us with an opportunity to effectively deliver support required by our regional member countries. Through regular coordination of institutional work programs and activities, we are in a position to achieve high efficiency and impact to address the challenge of fragility on the continent.”

This investment comes at a time when cross-border transactions and the development of new industries such as renewable energy are rapidly increasing demand for legal services across the continent. Numerous international firms such as Herbert Smith Freehills, Clyde and DLA Piper are increasing their presence in Africa’s growing legal hotspots.


 

Lawyer under fire: Mafia turn on gangland lawyer 

In the early hours of March 15th prominent gangland lawyer Joseph 'Pino' Acquaro was gunned down by a professional hit man outside of his gelataria in Melbourne, in a scene that could have been lifted straight out of a crime thriller.

The lawyer, who was a well-known figure in legal, media, and underworld circles, was found shot dead on the sidewalk outside of his café and gelato bar at around 3 am. His body was discovered by garbage truck driver around an hour after the incident occurred.

Acquaro was reportedly wanted dead by the Calabrian mafia, with whom he had recently severed all ties following a disagreement which had become increasingly bitter. Melbourne police had made the underworld lawyer aware of an active $200,000 contract which was placed on his head last year. Despite the fact that the reward was reported to have increased to $500,000 in recent months Acquaro refused to take safety precautions commenting “I'm isolated. They can't physically harm me”.

Unfortunately in Mr Acquaro’s case disgruntled ex-clients led to more than just a damaged reputation. If there is one group of people you don’t want to upset, it’s probably the mafia.


 

Is an ‘online court’ a threat to the legal profession?

Recent proposals in the UK for an online court for small claims up to £25,000 have been met with criticism from the Bar Council which condemned the plans as representing a ‘fundamental departure’ from an adversarial system of justice.

The Bar Council also said that the proposals had ‘major implications’ for training, as junior bar members rely on small cases to gain experience and hone their skills. This would in turn stall the pipeline of barristers that would be on track to fill judiciary positions in 10 or 20 years.

The regulatory body raised concerns that introducing a ‘lawyer-less court’ risks enshrining a two legal system and is a shift away from an adversarial system towards an inquisitorial one. The bar commented that ‘The online court appears to be premised on, or at least indicates, a distinct movement towards an inquisitorial system, with determination by case officers, and with a presumption that parties will not have the benefit of legal representation and will be unable to recover any legal costs. These three aspects distinguish the online court from the dispute resolution system which is frequently described as the best in the world.’

While an online court would undoubtedly improve access to justice for those who cannot afford legal representation, its implementation would send waves through the system and may have long lasting impacts on the upwards movement of barristers through to the judiciary.


 

General Counsel or ‘Loophole Finder’?

Traditionally guidance was sought from general counsel on matters of corporate compliance, yet increasingly in house lawyers are succumbing to economic and behavioural pressures and are becoming known as legal ‘loophole finders’.

The shifting demands of the current market place are well documented but now a report from Harvard Law School has found that increasing competition in the sector is placing pressure on in house lawyers to deviate from their ethical duties to remain efficient.

Increased economic pressures are encouraging general counsels to ‘find the yes’ rather than offer impartial guidance. Jim Lager, deputy ethics counsellor at the U.S. Government Accountability Office (GAO) and Azish Filabi CEO of Ethicalsystems.org, argue that ‘Ethical fading by lawyers who see their role more as a legal technician than a wise counsel has had disastrous consequences for both clients and the public.’

One example of when ‘finding they yes’ had drastic consequences was the case of General Motors. An investigation into the company’s handling of an ongoing issue with faulty ignition switches found that GM lawyers had repeatedly opted to settle individual cases relating to the faulty component without raising issue or ethical concern. The result of such short sighted and economically driven decisions has left GM with massive costs associated with recalls, and significant reputational damage following the 27 deaths and 25 serious injuries which have now been attributed to the fault over the last decade.

Lager and Filabi argue that in house counsel must reintroduce moral concern into their decision making and ensure they remember their ethical duties or risk leaving their companies exposed to catastrophic unknown risks.


 

Looking forward - growth in APAC and EMEA 

New research from LexisNexis Enterprise Solutions indicates that 57% of law firms are optimistic about growth in 2016, but that pricing and competition will be two of the biggest hurdles in achieving their goals.

The new report ‘Law Firms in Transition: Marketing, Business Development and the Quest for Growth’ is based on the findings of a new survey of marketing and business development professionals in law firms across the EMEA and APAC regions. It is clear that the effects of the last economic downturn are beginning to dissipate with 62% of respondents indicating that they are proactively targeting international growth.

According to respondents, pricing (52%) and competition (46%) pose the greatest challenges in terms of growth and 88% of firms are shifting their marketing and business development functions in response to such challenges in efforts to win new business. Interestingly, the report also highlighted a growing call for professionals to be more involved in their firm’s business development.

Respondents indicated that technology will be a key facilitator of business growth in 2016, with customer relationship management and marketing automation two of the top areas in which firms plan to increase or significantly increase investment.

The report suggests the most mature adoption of technology is when it is used to shift the cultural mind set of the organisation and motivate lawyers to be actively involved business development.

Investment in technology is likely help to facilitate growth as it will make business development less time consuming, however firms need to ensure that the systems they adopt align with their strategic objectives. If they establish specific goals they are more likely to ‘to derive tangible ROI from their functional efforts.’