Category Archives: Legal practice

Is it unethical to be a b*****d?

Confidentiality agreements have been hitting the news in recent months. If it isn’t Harvey Weinstein, it is Donald Trump. Their circumstances are different, but they both seem to have required people to sign detailed, and very one-sided, non-disclosure agreements (NDAs).

This should be good news for IP Draughts, as the author of a Law Society book on drafting confidentiality agreements. But somehow, he doesn’t think the lawyers acting for these gentlemen are likely to be purchasers. And even if they are, they won’t find any mention of the extraordinary clauses that are said to be included in their NDAs. Perhaps that is a new feature that we should include in the 4th edition.

Increasingly, IP Draughts is seeing commentary on the ethical issues for lawyers who advise on extreme NDAs. This is part of a larger issue of whether lawyers should uncritically follow their client’s instructions, however dodgy those instructions may be. Professor Richard Moorhead of UCL has been particularly prominent in this field, with a string of interesting articles about what he calls “solutions-focused but ethically neutered lawyering”.

If you think this problem is confined to a particular type of noisy, low-grade lawyer, think again. The House of Commons Women and Equalities Committee had some tough questions for partners in Allen & Overy about one of the cases in the news.

All of this prompts in IP Draughts’ mind the question of how far a lawyer should go in his or her client’s interests.  Sometimes, clients want a lawyer who is an aggressive b*****d. Some law firms in the City of London have made it part of their selling point that they are “tough but fair” in litigation or negotiations. By this, they mean that they will comply scrupulously with their ethical obligations (as they see them), but they will go right up to the boundary of what is acceptable and, staying on the right side of the line, make life as miserable as possible for their client’s opponent.

If you are dealing with hard-nosed corporate clients, perhaps such an approach is acceptable and commonplace. But if you are dealing with individuals, such as women who are pursuing claims of personal misbehaviour against rich tycoons, does the boundary of what is ethical shift? And is it appropriate to operate right at that boundary? Behaviour that may seem conventional in other circumstances, eg all-night meetings to discuss the terms of an NDA, or fielding a large team of experienced lawyers against a lone, junior associate, may become inappropriate by default, because no-one has stood back from the situation and questioned the status quo.

IP Draughts may not be the best person to comment on being tough but remaining within acceptable bounds. One of his longstanding but occasional clients, whose judgment he respects, recently told him that his trouble was that he was “too nice”. The implication seemed to be that he would have been instructed more if he had been less nice. And he still remembers the time, about 30 years ago, when as a junior associate he refused to work all night on an agreement, just because his opposite number’s boss (a partner in one of the biggest London law firms) thought it would be a good idea. His refusal was regarded as extraordinary. But the world didn’t come to an end, and everyone was much fresher mentally when they resumed work on the draft agreement the next morning. This wasn’t niceness, it was not following convention when it didn’t make sense.

If you are going to be an ethical b*****d, you have to work really hard to make sure you don’t stray over the line. And be aware that the position of the line may change, for reasons outside your control. Much better for your peace of mind to stay back from the line in ethically secure territory, and be nicer than you need to be or even, sometimes, your client wants you to be.

 

 

 

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Finding an overseas lawyer

This blog recently mentioned the network of high-quality, overseas lawyers that IP Draughts has built up over many years. It is with mixed feelings that he announces that his network reduced by one yesterday.

Eric Runesson, who first provided Swedish-law comments on our book about biotech transactions over 10 years ago, has left private practice and therefore must be scratched from IP Draughts’ list. The reason he has left private practice is that he is taking up a position as a judge of the Swedish Supreme Court. Congratulations, Eric!

As one door closes, others open. Last Monday, IP Draughts was in Copenhagen, moderating a panel discussion on GDPR at the American Bar Association conference on life sciences. The discussion went well, and he was impressed by the quality of the panel members, namely:

  1. Holger Bielesz, an Austrian lawyer, mainly a commercial litigator, with the Vienna firm, Wolf Theiss.
  2. Christina Hultsch, a German national and US-qualified lawyer who practises at Porter Wright in Ohio. She has a life-sciences practice with an emphasis on regulatory and transactional matters.
  3. Susanne Kudsk, a Danish lawyer who works at the University of Aarhus and has been very busy helping Danish universities and hospitals with GDPR issues recently.
  4. Jorg Rehder, a dual-qualified US and German lawyer, now practising in Frankfurt, who previously lived and practised for many years in the USA. Jorg has an international transactional practice, in the course of which he has become knowledgeable about GDPR.
  5. Amie Taal, who runs her own consultancy in the UK, which advises companies on electronic data issues, including GDPR compliance programmes. She previously worked at Deutsche Bank in New York, so she is also familiar with US data privacy rules.

Finally, on the subject of people, IP Draughts is sad to be coming to the end of his 3-year term as chair of the IP Law Committee of the Law Society. He will miss working with the talented group of English IP lawyers who make up the committee. He has to retire under Law Society rules, which remind IP Draughts of the film, Logan’s Run.

The committee’s annual dinner last week was a de facto retirement party for IP Draughts. He was very touched to receive, as a retirement gift, a framed poster (or word cloud) of kind remarks by members of the committee about him. It is now hanging on the wall of his study.

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Lawyer rankings for IP transactions 2018

Your name is on the list

It’s that time of the year again, when the international rankings for patent lawyers, produced by IAM Patent 1000, are published.

IP Draughts’ firm makes submissions to IAM Patent 1000 and to Chambers Directory. These guides, together with the Legal 500, have some credibility and value, in IP Draughts’ view. They take up references from clients, and ask lawyers in the sector for their views on their peers and competitors. If IP Draughts were looking for a lawyer in another discipline or jurisdiction, he would use these guides to assist him to find someone. (Some of the other guides, he would simply ignore.)

He is delighted to see that the UK chapter of IAM 2018:

  • lists Anderson Law LLP as “highly recommended” for transactions (along with 5 very large and well-known firms);
  • lists Mark Anderson as “highly recommended” for transactions; and
  • lists Lisa Allebone PhD as “recommended” for transactions.

And describes Anderson Law as follows:

“Anderson law provides excellent support on contractual arrangements with third parties, including licence and shareholder agreements and consultancy and revenue-sharing contracts. Its service is very professional, with clear, prompt responses to all enquiries and excellent knowledge not only of the legal issues but also of the long-term commercial implications actions might have.” Name partner Mark Anderson is the go-to lawyer for entrepreneurs, start-ups, research institutes and private companies in the United Kingdom seeking top-notch transactional support. “A real thought leader,” he has three decades’ experience under his belt. His teammate Lisa Allebone has her fair share of fans; a seasoned pro at setting up spin-out companies for universities, life sciences is her favourite technological space.

It is also good to see that some of IP Draughts’ colleagues on his annual course on IP transactions, held at UCL Laws, are recommended in IAM, including:

  • Chris Shelley
  • Sally Shorthose
  • Matthew Warren
  • Mark Lubbock

On the international stage, it is good to see that some of IP Draughts’ fellow members of the BioLaw Europe referral network are listed in their country chapters of IAM, including:

  • Denis Schertenlieb (France)
  • Stefan Kohler (Switzerland)

And that some of the non-UK contributors to his looseleaf work, Drafting Agreements in the Biotechnology and Pharmaceutical Industries are recommended by IAM, including:

  • Pamela Cox (USA)
  • Christine Kanz (Germany)

If you are looking for an IP lawyer, we may be able to help you in the search.

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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…

 

 

 

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