Making progress in the legal profession

In some ways, barristers have it easy. It may not seem like it, while you are slogging through the ranks. But there is a clear career path, if you are talented and hardworking, and want to follow it. You build up a practice. After 15 to 20 years, you become a Queen’s Counsel. After a few more years, you combine this with being a deputy High Court judge. In the IP field, you might also become a judge in one of the specialist tribunals, such as the Copyright Tribunal. Perhaps you take on the role of judge in the Intellectual Property Enterprise Court, as long as it is clearly understood by all concerned that this is not the end of your ambitions.

Eventually, if you want it, you become a judge in the High Court, and get the knighthood or damehood that goes with this role. If you still have energy and aptitude, you do this for a few years and demonstrate your growth in the role, before being promoted the Court of Appeal. At 70 you are forced to retire. What do you do next? Perhaps you become a professor of law, and help train the next generations of IP lawyers and judges.

In other words, there is a career path that will enable you to ‘grow’ professionally, but also provide variety and change every few years. For solicitors and patent attorneys, there is not the same sequence of well-established roles. For many, being made up to partner is an important stepping-stone. Perhaps at this point you settle into a long-term role with your firm, which ends only with your retirement. Other IP lawyers prefer to move every few years to a new firm, or to take the leap into industry. In some firms you may be forced to retire at 60, and have to find pastures new. At this point, some practitioners join a US law firm, where there appears to be less formal ageism. Others change career mid-stream. One noble soul, whom IP Draughts has known for over 30 years, recently became a science teacher in his 50s.

Several of the young lawyers that IP Draughts has interviewed for jobs over the years have commented on being content as long as they keep making progress. IP Draughts is not immune from this desire. He mentioned the point to David Greene last week. David has just been elected as Deputy Vice President of the Law Society of England and Wales (the national bar association for English solicitors), which means that in two years’ time he is very likely to become President. When IP Draughts started in practice, Presidents were typically awarded knighthoods, but this practice was abandoned in 1990, after the Law Society membership elected an ‘unclubbable’ radical to be President.

In response to IP Draughts’ expressed wish to find another role, David replied “we’re all the same”. In other words, we all want to keep making progress, whatever level we have reached. What does a Law Society President do after his term of office has concluded, if he doesn’t want to retire?

At a less exalted level, IP Draughts has to retire as Chair (and as a member) of the IP Law Committee of the Law Society this Summer. He has been a member since 2006. He would like to find another part-time position to fill the gap. He has other roles (eg he is co-chair of a PraxisAuril working group that will be seeking to develop a standard investment agreement for university spin-out companies) but none of the same intensity and seniority as the IP Law Committee.

He has applied, and been interviewed, for a couple of chairing roles with public bodies. Although unsuccessful, the process has scraped some of the rust from IP Draughts’ interview technique.

If you are in a position to recommend a part-used IP lawyer in his late 50s for a senior role, please would you do so? Skills that the candidate believes he has include:

• legal and commercial skills and experience
• planning, designing, creative thinking, long-term thinking
• preparing, listening, explaining, moderating, mediating
• independent-minded, but very willing to work as part of a team for a common purpose
• chairing, organising and leading groups of talented, strong-minded professionals, building up trust
• clear, well-structured, persuasive writing (eg of reports)

One role that IP Draughts would be interested in is the Law Commissioner for commercial law. But there isn’t currently a vacancy, and anyway the role is full-time, which wouldn’t suit him for the next few years as he wants to continue running Anderson Law. And no doubt there will be plenty of talented candidates when a vacancy does arise.

The ‘tap on the shoulder’ or ‘quiet word in your ear’ technique has been discredited, sometimes wrongly in IP Draughts’ view, as a method of recruitment. Everyone has to go through an application and interview process. But even so, a favourable word might just help…

 

 

 

G-whizz. Wake me up after May 25!

At this year’s UCL course on IP Transactions, many of the speakers commented to IP Draughts about how busy they were, advising clients on the EU General Data Protection Regulation (GDPR), which is due to come into force later this month. Except for one lucky speaker who said that her firm had a separate department dealing with such matters.

For many IP lawyers, it seems to go with the territory to advise on data protection issues. Perhaps it is because they are really IT and IP lawyers, and GDPR is part of the regulatory regime that protects the “I” part of IT. Or perhaps because they are EU laws, and who better than an IP lawyer to advise on EU laws, when most of the IP laws in the UK are at least tinged with EU influence, even if they are not directly derived from EU legislation.

IP Draughts is not immune from this trend, and has recently been the partner-in-charge of several GDPR projects, advising clients on compliance with the new regime, or revising contracts to take account of the new law. Fortunately we have some GDPR gurus within the firm, so that IP Draughts can be “young Mr Grace”, wheeled out as a figurehead, but sometimes a bit redundant when the detailed discussion starts.

He has picked up enough on the subject to recognise the issues that seem to come up time and again. This is fortunate, as he has agreed to be the moderator of a panel discussion on data protection at an American Bar Association conference in Copenhagen in June.

IP Draughts would appreciate your help, dear reader, in putting together a list of incisive questions (or themes) to ask the panellists, who are a mixture of US and European lawyers and data protection managers. Here are some crude, general questions to get us going. Under the new regime:

1. Is the definition of personal data broader than at present?
2. Should organisations rely on consent, or another lawful basis for processing? Is consent less likely to be used under the new regime than it is at present?
3. Are existing consents going to be sufficient to comply with the new law, or will we need to get fresh consents?
4. Can you rely on more than one lawful basis of processing? Eg if you start off with consents, but the consents are not compliant, can you switch to another basis of lawful processing as a back-up?
5. Is it realistic to suggest that employees can give consent freely to their employer? Won’t they feel pressurised to give consent and won’t this make the consent invalid under GDPR?
6. Do we need to rewrite our privacy statements? Can we rely on small print on website terms and conditions, and if not how “in your face” do we need to be?
7. If you make the right noises, and try to institute new processes to comply with GDPR, will that get you off the hook if the regulator knocks on your door, even if your processes are not, in fact, compliant? Is the sensible course to treat GDPR a bit like many companies treat health and safety issues – going through the motions, without conviction – until you see some case law that shows you exactly what you need to do?

Alas, poor [Y]! I knew him, [H]…

There are many more general questions, though they can only sensitise you to the issues, rather than show you how to comply.

Are these questions on the right lines for a panel discussion? Or should IP Draughts take a different approach? Assume that 60% of the people attending the conference are US lawyers and 40% European, and that some, perhaps many, of them will not have much clue about the subject.

Gross negligence = ordinary negligence + vituperative epithet?

Vituperative epithets feature strongly in this golden oldie about references to “gross negligence” in contracts.

IP Draughts

IP Draughts first encountered references to gross negligence in contracts in about 1984.  Working as an in-house lawyer for a UK-based research and engineering consultancy, he negotiated some contracts that were based on US templates.  Often, those US-style contracts would include clauses that limited liability or provided for indemnities, yet made an exception in the case of liability caused by a party’s gross negligence or wilful misconduct.

In his callow youth, IP Draughts’ reaction to such an exception in negotiations was to point out that gross negligence did not feature as a well-understood concept in English contract law.  Sometimes, he would negotiate to remove the exception.  On other occasions, he would propose alternative wording, such as “reckless or wilful misconduct”.

Nowadays, in his near dotage, IP Draughts has seen references to gross negligence so many times in contracts that he is inured to them. (Inure: there is…

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Ratifying the Unified Patent Court Agreement

the thin red line

The UK government announced this week that it has, at last, ratified the 2013 Agreement on a Unified Patent Court. It had announced its intention to do so in November 2016, nearly 18 months and two IP Ministers ago.

The UK IP professions are generally in favour of such ratification. But they would like to see some concrete evidence of the government’s intention to negotiate for the UK’s continuing participation in the UPC and UPCA after Brexit. Some time ago, they obtained a QC’s opinion that provided a road-map to how the UK could participate after Brexit, but it would require the agreement of other EU countries and EU institutions. So far as IP Draughts can tell, industry and other EU countries are in favour of continued UK participation.

A potential difficulty with this idea is that the UPC/UPCA is subject to the supervisory jurisdiction of the Court of Justice of the European Union (CJEU), and the UK government has declared that CJEU jurisdiction is one of its “red lines” in the negotiation of the UK’s future trading relationship with the EU. This was, no doubt, what led then-MP Douglas Carswell to put down an early-day motion in the previous Parliament, calling for it not to be ratified. Fortunately (in IP Draughts’ view) no other MP was prepared to second this motion, which consequently did not proceed.

Back in November 2016, the government’s press release was at pains to distance the UPC from the European Union. It included the following “note to editors”:

The UPC itself is not an EU institution, it is an international patent court. The judiciary appointed include UK judges.

At the time, IP Draughts thought this was as much a note to the Brexiteer wing of the Tory Party as it was to editors.

But the official government line on continued participation has always been that this will be a matter for the Brexit negotiations. The UK government has not been willing to show its hand and say in terms that it wants the UK to participate in the UPC/UPCA post-Brexit. A fortiori, it has not been willing to say whether the limited CJEU jurisdiction required for participation is so marginal, and in such a non-political arena, that it might be allowed to slip over the thin red line that has been set for other areas of trade policy.

Observers have been left to read the runes of statements coming from government, to see if they can detect at least a direction of travel, even if a policy statement is currently thought to be politically impossible. If you stare long and hard enough at the comments from ministers and civil servants, do they start to levitate?

In this context, it is interesting to look at the latest press release about ratification, and see what it says about the future. It includes the following statements:

The unique nature of the proposed court means that the UK’s future relationship with the Unified Patent Court will be subject to negotiation with European partners as we leave the EU.

Ratification of the UPCA will keep the UK at the forefront of influencing the international system.

Should we read these statements as a hint that the UK government thinks we should be in the UPCA for the long haul, and not just until the end of the transition period implementation period?