Category Archives: Legal practice

Protecting the public from non-lawyers

office1According to popular culture, and therefore according to populist politicians, lawyers use their privileged position to charge too much and do too little. They provide their services in an old-fashioned way that is out of step with the service methods of banks, department stores, airlines, holiday companies and other mass-market providers. They are also too clever by half –  a particularly British, social sin. This negative feeling seems to operate mainly at the group level. Ask someone to comment on the service that their lawyer provides, and a more appreciative response is often given.

Prejudice against gender, race, religion or age is now outlawed. Prejudice against professions ticks no forbidden box. It is not only lawyers who are disparaged. Other professions, including doctors and teachers, are fair game for public hostility. This leads politicians to chip away at the the legal mechanisms that protect and promote professional services. Why do you need a lawyer to sell your house, when any Tom, Dick or Harriet could do it? Let them do it, and let them call themselves lawyers, it doesn’t harm anyone except overpriced solicitors.

Making these comments almost invites a sarcastic response. Another strand of popular sentiment is that well-paid professionals can look after themselves. Perhaps they can, but consumers of professional services can’t, and they are the ones that need protection.

The public benefits from having highly-regulated professions, and from laws that control the performance of professional activities, whether it be cosmetic surgery or investing people’s money. But who will point this out and stand up for the professions when they are under attack from politicians? If professionals do so, their comments are dismissed as the product of self-interest.

financial adviserThese gloomy thoughts are prompted by a letter that an elderly relative of IP Draughts received recently, on which IP Draughts’ advice was sought. The letter was written by a “financial adviser”. It offered to help this relative to create a “tenancy in common” of her house, and thereby avoid the house being compulsorily sold to pay local authority care home fees, if the relative needed to go into a care home in the future.  The adviser offered to charge a fixed fee for this work, and another fixed fee for creating a “mirror will” and trust to support the change of ownership.

This is not an area of law with which IP Draughts is familiar, but some Googling soon revealed the basic idea behind the proposal. In essence it is a scheme for ensuring that the surviving spouse, after the first spouse dies, can avoid selling their home to pay the care home fees. Apparently this works when the first spouse has set up a legal mechanism to ensure that their “half” of the property does not pass to the surviving spouse when they die. As a result the property cannot be sold, or is unlikely to have a market value.

For the benefit of readers who are not English lawyers, property can be jointly owned by two people in two different ways. The two ways are known as “joint tenancy” and “tenancy in common” and they have different legal consequences. When a joint tenant dies, the property automatically passes to the surviving owner. A tenancy in common passes in the deceased person’s will.

The scheme assumes that:

  • the spouses originally own the property as “joint tenants” (which many spouses do, including IP Draughts)
  • they convert their ownership to “tenancy in common”
  • the spouses do not pass their half-shares to each other in their wills but instead provide that they pass to someone else, eg trustees of a family trust
  • protection is sought from selling the house when the second spouse goes into a care home

IP Draughts was surprised that a financial adviser should be offering to transfer property, draft wills and create trusts, rather than directing the client to a solicitor. But she told IP Draughts’ relative that she has a law degree, so of course she understands these things.

severeHe was even more surprised by the letter, which appeared to be a modified version of a template letter. The template uses some pompous legal expressions like “sever the [joint] tenancy”, but because the writer doesn’t really understand what she is doing, phrases like “we will severe your tenancy” appear.

For several reasons, this scheme is unlikely to help IP Draughts’ relative:

  1. Her husband died many years ago, so it is too late to set up the scheme between husband and wife.
  2. She owns her property outright – there is no current joint tenancy.

If a solicitor offered garbage of this kind, they could be referred to the regulator – the SRA. They could be sued for negligence when the scheme doesn’t work, and they would have compulsory insurance that would cover any losses that might arise. Any competent solicitor would know that they have to check the client’s circumstances meticulously before offering a scheme of this kind. IP Draughts’ experience of local solicitors in the area where this relative lives is that they tend to err on the side of caution.

When a “financial adviser” dabbles in a subject that they don’t fully understand, and when they haven’t checked the facts properly before offering a service, who knows whether the client will be fully protected.

Situations like this one need to be explained to politicians when they engage in periodic bouts of lawyer-bashing. Financial advisers should not be allowed to offer legal services. It hurts the consumer when they do so. Old-fashioned, slightly stuffy solicitors are much better protectors of consumer interests.

This example concerns consumer law, which is what politicians tend to understand. For those of us advising business clients, we may think that situations like this don’t directly affect us (except when our relatives suffer from them). But misguided de-regulation in the consumer arena tends to have effects that are felt across the professional spectrum.

 

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Rankings for IP lawyers 2015

top dogRegular readers of this blog may recall that IP Draughts has strong views on the value of publications that rank lawyers. Most are a version of vanity publishing, where you pay the publication for an entry and in return are given a grandiloquent title, such as European Plant Varieties Lawyer of the Decade. Sometimes, the publication plays a dance of the seven veils, in which they tell you have been shortlisted or that you have won an award, but they are coy about what the award is, and invite you to pay for an entry in their publication. The award tends to evaporate if you don’t play ball.

In recent months, IP Draughts has received numerous awards or would-be awards from publications that he has not heard of (or has heard of only because they contacted him in earlier years). Emails from these publications tend to be quickly deleted.

It is tempting to damn all legal rankings as useless and self-serving. But that would be wrong. Some are very useful, and IP Draughts has used them to help him find lawyers in other jurisdictions or in other disciplines. As with restaurant reviews, the trick is to distinguish between the useful ones and the mere puffs.

Within the UK and Europe, and within the intellectual property field, he rates only three: Chambers Directory, Legal 500 and IAM Patent 1000. He has used all of these to find lawyers that he has subsequently instructed.

IP Draughts’ firm is still relatively small, though we have grown in recent years. So far we have taken the view that we don’t have a large enough client base to make submissions to all three of these directories. Making submissions involves naming client referees, who are often contacted by the publication in question. We prefer not to try the patience of key clients by asking them to act as referees for 3 publications. To date, we have omitted Legal 500 from our submissions.

iam 1000IAM Patent 1000 has just released its rankings for 2015. The paper copy of the 2015 edition arrived in the post today. At the time of writing the IAM website is still showing the 2014 rankings.

We are delighted to be ranked for UK patent transactions again. Mark Anderson and Stephen Brett receive individual recommendations. The editorial commentary on our firm for 2015 includes the following text:

 Now a decade old [actually two decades] and home to nine professionals [ten now, and eleven from August], Anderson Law has reaped the benefits of its carefully developed blueprint. It is one of the few UK outfits to specialise exclusively in transactions, serving a specific clientele composed of universities, research bodies and SMEs [and the occasional large, multi-national]. A nuanced understanding of the lifecycle of a startup ensures that its advice is on the money from inception to exit. Government bodies are another key source of instructions; in 2014 it drafted a suite of template agreements and guidelines for Enterprise Ireland…

“Everyone at the firm is knowledgeable, flexible, personable, and able to deliver a quality outcome on time and to budget.” [Thank you – that sums up what we want to do!]

 

 

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You can’t always get what you want (from your lawyer)

Lawyers come in all shapes and sizes...

Lawyers come in all shapes and sizes…

IP Draughts has just returned from Barcelona, where he attended the inaugural meeting of BioLawEurope, a referral network of European lawyers who advise the life-sciences sector.

The network currently comprises lawyers from Belgium, Denmark, France, Germany, Italy, the Netherlands, Poland, Spain, Sweden, Switzerland, and the United Kingdom. Many of the member firms are small, specialist practices. Many are listed in Chambers Directory and other reputable guides.

One of the conclusions that we came to at our meeting, was that BioLawEurope is not intended to be a vehicle for attracting new work – it is not a marketing organisation. If it is successful, it will help us to provide more and better services to our existing clients.

The value of such a network depends to a large extent on trust. Just as a client trusts you to provide a good service, you need to trust the other members of the network to provide an equally good service. If you refer work to them and they don’t provide a good service, your reputation suffers.

For this reason, we are not going to ‘promise the world’ for this network until we have had time to get to know one another better, and worked together on a few projects. Let’s take stock in 2, 3 or even 5 years’ time, and see whether it has been successful.

In the meantime, many of our clients are engaged in international activities, whether it be conducting research or clinical trials in several European countries, or licensing IP for an international territory. Despite some international harmonisation, many of the laws affecting such activities remain resolutely national. Even in the largest firms, multi-jurisdictional legal advice on life-sciences agreements is hard to obtain. And even harder to obtain to a consistent standard. For many large firms, there simply isn’t the volume of work in a niche area like life sciences, to justify hiring teams of specialists in every jurisdiction.

Some clients rely on the brand name of an international firm, and don’t think too closely about whether the service they get is consistent across jurisdictions. As the saying goes, no-one got fired for choosing IBM – or its equivalent for legal services. Many of the firms in the BioLawEurope network have made a living out of sophisticated clients who know what they want, and who find the best lawyer for the job, wherever they are located.

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Who practises IP in the UK?

IP lawyers have their own niche, and defend it with zeal

IP lawyers have their own niche, and defend it with zeal

Intellectual property is thought of as a niche subject within the broad category of commercial laws. Yet an increasing number of people, both in the UK and internationally, make it their profession to advise and assist clients on IP matters.

To assist us to understand the make-up of the IP professions, IP Draughts has done some simple research using public registers, including those of the Law Society of England and Wales, IPReg (the regulator for patent attorneys and trade mark attorneys), the IP Bar Association, and the UK Intellectual Property Office’s register of IP business advisers. Some of the results are surprising.

 

law societyBy far the largest number of IP lawyers practising in the UK are within the solicitors’ profession. According to the Find a Solicitor website of the Law Society of England and Wales:

9,466 solicitors practise IP law, of whom 3,901 are in private practice (in 1,618 firms), and the rest work in industry, government and other settings. (A further 390 solicitors practise IP law in Scotland, according to the Law Society of Scotland’s Find a Solicitor search engine.)

ipregThe next highest number practise as patent or trade mark attorneys. According to  the handy spreadsheet provided by IPReg, last updated in December 2014:

1,984 individual patent or trade mark attorneys offer services to the public. (A separate list from IPReg suggests that they work in approximate 220 firms.)

barAccording to the IP Bar Association list, updated in January 2014:

128 barristers practise IP from 30 chambers. (Well, places of practice might be more accurate, as the latter list, although mostly sets of barristers’ chambers, includes a firm of patent attorneys, a firm of solicitors and a Japanese law firm.)

ipoThe UK Intellectual Property Office maintains a list of people who have “completed the accredited IP Master Class” for business advisers and are therefore considered competent to offer IP Health Checks to businesses. (Thankfully, the IPO seems to be no longer listing people who claim adherence to a misguided British Standard for IP advisers.) According to the current list:

56 individuals have completed the IP master class. The relevant part of the IPO website includes the following statement “Many business advisors understand the importance of IP within a business. Reach your potential with this CPD certified quality IP advisor training for business professionals.”

The last of these lists might be viewed as a list of unregulated, but IPO sponsored, IP business advisers, unless they are regulated by one of the other bodies mentioned above.

There is, inevitably, some overlap between the above lists. Nevertheless, they provide an interesting snapshot of who is practising in the field of intellectual property in the United Kingdom.

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