Category Archives: Legal practice

Posh boys, eggheads and diversity

Tim Nice-But-Dim

It has been a week of contrasts. On Wednesday afternoon, IP Draughts was one of 67 people who participated in a two-hour Zoom discussion on social mobility in the IP professions. We were divided up into groups (in breakout rooms) to discuss themes. Our group discussed career development, including how to attract mature applicants into the professions.

Each group was required to propose both immediate actions and longer-term actions. An immediate action that our group came up with was adding material to the recruitment part of firm websites to focus on the needs of older people. It was pointed out that many IP firm websites are focused on fresh-faced, eager young graduates.

On longer-term actions, IP Draughts proposed that each firm should have someone at partner level whose job was to influence “hearts and minds” among the partnership in favour of diversity actions.

No matter how enlightened we think we are, it is human nature to select people in our own image. We feel comfortable with our own kind. A conscious effort needs to be made to think differently.

Sometimes, IP Draughts worries that if you move too fast, or create a group-think among so-called enlightened people, while not carrying with you others who care less about these issues, the result may be counterproductive. Perhaps we need to focus on the worst excesses before getting too starry-eyed about the ideal scenario. Yes, he knows the counter-arguments to this gradualist approach, but it doesn’t stop him having the concerns.

There is still plenty to tackle at the extreme end of the spectrum. This week, a young, black, female barrister tweeted about her experience of being challenged at court three times in one day by people who assumed she was a defendant or journalist. She commented about how mentally draining this was. Her tweets were picked up by the national press, resulting in a public apology by the civil servant in charge of the English courts.

Apologies sound good, but what would really make a difference is spending significant sums of money on staff training across the thousands of people employed in the courts.

The solicitors’ profession is not immune from extremely questionable behaviour. A report has just been published by the Bridge Group on research commissioned by nine leading commercial law firms. It seems that 53% of partners at those firms attended private schools, which is a huge percentage compared with the number of people in the population who attended private schools. People from lower socio-economic backgrounds took a year and a half longer on average to reach partner, while women took nearly a year longer than men.

Thinking about the IP professions, in IP Draughts’ view the issue is a little different. It is more about intellectual attitudes than social attitudes – put crudely, which university you attended, rather than which school. But the exclusionary effect is similar, and it disadvantages many of the same people.

One comment in the report that struck a chord with IP Draughts was from someone who referred to the extra energy required to fit in with the dominant group.

IP Draughts thinks back to his experience in a London law firm 30 years ago, when for several years he put additional energy (i.e. beyond that required for the work itself) into fitting in with the partners’ needs, to some extent suppressing his natural instincts. After several years of doing this, he came to the conclusion that the effort was wasted. He found this realisation disillusioning. No doubt he was naive, and perhaps the partners weren’t even aware of the efforts he was making. He lacked a mentor with whom he could discuss such things.

Well done to the firms for commissioning the research. Now, what are you going to do about this strikingly non-diverse data?

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GCs: stop moaning and fix it

Last week, IP Draughts found, via Twitter, an article in a legal magazine with the title:

‘Broken’: UK Lawyer Training Desperately Needs a Revamp, Say GCs

IP Draughts would not recommend the article, but some of the quotes in it grabbed his attention. Consider this one:

I asked one of my secondees for their opinion on something, expecting a gut feeling, immediate response”, recalls one U.K.-based general counsel. “Instead, they took about three hours, researching their opinion instead.”

IP Draughts doesn’t know the circumstances of this incident, but it sounds wrong on so many levels. In the absence of further information, IP Draughts blames the GC and not the secondee for the misunderstanding that the GC describes.

IP Draughts’ credentials for saying this include (a) having worked in-house and instructed external lawyers, (b) being responsible for training many solicitors, and (c) having arranged secondments with clients over many years.

The concerns that IP Draughts has with this quote include:

  1. Communication. The GC should have had more insight into how a secondee from a big law firm is trained, and should have had better communication skills to ensure that the secondee knew what was expected.
  2. Experience. Secondees from big law firms are often trainees or junior associates. They will typically lack the experience to give a useful gut feeling on a situation. Part of the purpose of the secondment (from the law firm’s perspective) may be to give them some of that experience, though in a secondment of 6 months or so, it will only be a start. As a rule of thumb, IP Draughts would suggest that gut-feel questions are best directed to someone with at least 4 years’ post-qualification experience, and even then the lawyer may need support from someone more senior.
  3. Specialisation. Big law firms are highly-specialised environments, which train people up to do the job of the big law firm. Much of that job involves processing high-value transactions and litigation. Large teams of people are required for those roles, and much of that work is not creative.
  4. Risk-aversion. One of the themes of the article mentioned above is that GCs would like their external lawyers to be less risk-averse. The best way of moving law firms in that direction would be to sue them less. The law firms’ insurers may be influencing the risk-averse approach. For generations, law firms have drummed into their juniors the need for accuracy, not to make mistakes, and to have a “clean file”. Expecting a junior secondee to abandon that approach and give a gut feel when they may not even have considered the area of law on which their opinion is sought, is in IP Draughts’ view unrealistic. If that is what is required, the GC needs to articulate this carefully, and build up trust that nothing the secondee does will attract blame or legal action, as long as it is done in good faith.
  5. So what? Why does it matter that the secondee spent 3 hours researching the issue – why is that a bad thing? If it increased the secondee’s knowledge of an area of law, that sounds like a good thing.

Perhaps part of the problem is that the GC doesn’t take on enough trainees, and instead relies on external law firms to do the bulk of solicitor training. And perhaps another problem is that the GC is getting their secondees from the wrong type of law firm, perhaps lazily assuming that the large firm that does their megabucks M&A work is well suited to handling the workload of the in-house legal department.

In IP Draughts’ firm, many of its trainees have prior work experience before they become a trainee, and the nature of the training may be more suited to taking on responsibility at an early stage in their careers.

Having said all this, IP Draughts has some sympathies for the frustrated GCs. As a junior in-house lawyer, aged about 25 or 26, he was tasked with updating the company’s template agreements. One of the issues he faced was what limitations of liability to include in the agreements. He read up on this subject in Chitty and other texts, and felt he understood the legal principles. But he lacked the experience to know how to translate the legal principles into a decision on financial caps. He was the sole in-house lawyer, so had no senior colleagues to turn to.

He contacted the magic circle law firm that had privatised IP Draught’s employer a couple of years earlier, and which continued to be their external lawyers. IP Draughts was hoping for some practical insights into what other clients of the firm did, and what the options were.

Instead, he was very disappointed to get a letter of advice from the law firm that simply summarised the law that IP Draughts had already studied, and gave no practical suggestions. IP Draughts could easily have written the same type of letter.

The lawyer who wrote this advice was then a senior associate, who in the next year or two became a partner. Many years later, he became managing partner of the same firm. No doubt he was very good at his job. But, on that occasion, he was pretty useless at giving IP Draughts the legal support that he was looking for.

There is fault on both sides. But an experienced GC should be in a position to change things, rather than moaning about it.

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I didn’t get where I am today…

IP Draughts is flattered by an invitation to participate in a podcast. On Tuesday, he will be joining Louise Kulbicki in one of her regular podcasts for Study Legal English.

One of the questions that Louise intends to ask is “how did you get where you are today?”

This prompts a memory of a British TV sitcom from the 1970s, The Fall and Rise of Reginald Perrin. One of the characters was an overbearing CEO known as C.J., whose catchphrase was “I didn’t get where I am today by…” IP Draughts’ favourite example is: “I didn’t get where I am today by pouring cold water on a wet blanket.”

The question implies that “you” have been successful in your career.

In fact, IP Draughts can count more failures than successes. He has had some significant failures at school, at university, and at work. This is not ancient history. He continues to fail, particularly in applications for leadership roles.

As for the successes, they have happened once he is immersed in a project and has worked out how to do it well.

Where you are today is a mixture of past successes and failures. This blog article ends with a quotation from a book of poetry that IP Draughts bought in a university town in the 1970s, after an unsuccessful interview.

No! I am not Prince Hamlet, nor was meant to be;
Am an attendant lord, one that will do
To swell a progress, start a scene or two,
Advise the prince; no doubt, an easy tool,
Deferential, glad to be of use,
Politic, cautious, and meticulous;
Full of high sentence, but a bit obtuse;
At times, indeed, almost ridiculous—
Almost, at times, the Fool.

(T S Eliot – The Love Song of J Alfred Prufrock)

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NDA with OFQUAL: what’s all the fuss?

Surprising as it may seem, parts of the UK national press have been buzzing with excitement over the terms of a non-disclosure agreement (NDA).

The story so far

There haven’t been any (many?) school exams this year, due to the Covid-19 pandemic. Instead, school pupils were to be awarded grades in their GCSE and A level exams using an algorithm developed by OFQUAL,  the regulatory body for school examinations in England.

The Royal Statistical Society (RSS) had proposed to OFQUAL the inclusion of two independent experts to help develop the algorithm. OFQUAL asked these experts to sign an NDA. RSS objected to the terms of the NDA on the grounds that it would prevent RSS from commenting on the choice of computer model, on how the constraint of grade inflation was set, whether it was appropriate to the statistical task at hand, and who set it.

In fact, following an outcry over the results produced by the algorithm, pupils have been able to claim any higher results predicted by their teachers.

The terms of the NDA

General comments

So, what is so terrible about the NDA that was proposed? IP Draughts has reviewed many hundreds of NDAs over the last 36 years, and one of his books is on the subject of Drafting Confidentiality Agreements, published by the Law Society of England and Wales, and now in its third edition. He thought it might be interesting to review OFQUAL’s NDA.

First, some general comments, before focussing on the special case of an independent academic review of technology being used for public purposes.

IP Draughts’ overall impression is that the NDA was originally based on a simple template with conventional terms, but like many templates it has acquired some accretions over time, and it doesn’t look like it has received a high-quality legal review for some time. He would be embarrassed to put his name to such a scruffy document.

Points that jumped out (in the order in which they appear in the draft) include:

  1. Bad formatting, e.g. the definition of the Parties appears in a paragraph about OFQUAL.
  2. The definition of Confidential Information is broad. It covers all information provided by OFQUAL unless the information fits within one of the standard exceptions. More often in NDAs there would be a requirement that information must be marked as confidential or if disclosed orally identified as confidential at the time of disclosure.
  3. Bad/sloppy choice of language, e.g. “undertakes to do as follows” is followed by a list of items, such as “that copyright …remains the copyright of [OFQUAL]”

In a routine business-to-business (B2B) NDA, these points could be fixed by marking up the draft with conventional changes found in many NDAs, and with drafting corrections.

Other aspects of the NDA seem unremarkable in B2B NDAs, e.g.

  • conventional exceptions to confidentiality
  • restrictions on use or disclosure of the Confidential Information
  • requirement to return information on request and certify destruction
  • 5-year term for confidentiality obligations

Conventional as the above terms are, there are still a few drafting suggestions that might be made, e.g. that the receiving party can keep one copy of the confidential information in its legal files.

Special circumstances of this disclosure

OFQUAL’s NDA was proposed for signature by two independent experts suggested by the Royal Statistical Society. It appears from the RSS’s letters (see first link above and documents linked there) that they wanted to be free to publicly criticise the detailed features of the algorithm, and its creators, including OFQUAL. They were concerned that the NDA would prevent them from doing so.

IP Draughts agrees that the NDA probably would prevent them from doing so, but he has some sympathy with the OFQUAL position. It is a public body that was developing a policy, including a methodology for implementing the policy, on an issue affecting many thousands of families in England. As later events showed, the policy was very politically-sensitive.

In those circumstances, looking at it from OFQUAL’s perspective, it seems counter-intuitive to admit people to the policy-making body and then allow them to criticise the policy.

It appears that RSS is a campaigning body that presumably wants both better use of statistics in public bodies and greater transparency about their use. That is an understandable and laudable aim, but if I were running OFQUAL I would be reluctant to create a rod for my own back by giving RSS representatives both privileged access to a policy and freedom to criticise it.

Overall, IP Draughts thinks the issue is not really about the terms of a mediocre NDA, but about whether people involved in developing public policies should be constrained as to what they can say in public about those policies, and when. This is, or should be, itself a matter of public policy rather than something to be governed by private agreements.

 

 

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