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Group proceedings: “Breathing space”: a cure Cross-border maintenance:
the new Scottish regime for contracts hit by COVID? the differences explained
P.16 P.20 P.28
Journal of the Law Society of Scotland Volume 65 Number 8 – August 2020
Staying remote?
Has lockdown working changed how solicitors regard
their offices? The Journal reports as reopening beckons
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President: Amanda Millar
Vice President: Ken Dalling
Chief Executive: Lorna Jack
Holyrood’s priorities
Online resources Which current bill before the Scottish Perhaps our MSPs’ time would be
www.lawscot.org.uk Parliament has generated the most heat better spent attempting to mitigate the
www.journalonline.co.uk in public debate? Nothing to do with many hardships that seem destined to
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the pandemic emergency, or even the result from the coronavirus lockdown and
Subscriptions independence debate, but hate crime. its after-effects on the economy. Some
Practising Certificate (inclusive cost) £680; The bill based on Lord Bracadale’s debt advisers, for example, regularly voice
Non-Practising Members (UK and Overseas, report, supposedly largely a consolidating warnings that debtor support is in a poorer
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measure, finds itself at the centre of a storm state now than 10 or 15 years ago. That
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into which virtually every commentator should be cause for serious concern.
Editorial seems to have felt obliged to pitch their And what about those worried for
Connect Publications (Scotland) Ltd criticisms, alongside interests ranging from their own homes? Into the mix here we
Editor: Peter Nicholson: 0131 561 0028 bishops to secularists to the police. have the Holyrood Local Government
e: peter@connectcommunications.co.uk Some of the comments have Committee’s decision to drop the Fair
Advertising: Elliot Whitehead: 0131 561 0021 been remarkable (is there really Rents (Scotland) Bill from its
e: journalsales@connectcommunications.co.uk a serious argument that programme, claiming excessive
Review editor: David J Dickson possession of the Bible could workload. Taken in private
Online legal news: become an offence?), but session after this member’s
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committee scrutinising the bill, supposed to govern the way the
Editorial board making some weighty points about Parliament conducts itself.
Austin Lafferty, Lafferty Law lack of clarity of the proposed offences, not Whether the bill, which has wider
Andrew Todd, Springfield Properties Plc least where the bill happens to depart from relevance than COVID-19 related problems,
Philip Hannay, Cloch Solicitors
Lord Bracadale’s proposals is the best way to address the serious
David Bryson, Baillie Gifford
Ayla Iridag, Clyde & Co Faculty goes so far as to conclude that issue of private rented sector costs is
Kate Gillies, Harper Macleod LLP ministers should “reconsider” the bill – something that should be debated openly
which, given that its main purpose is to in the chamber, not annulled by the private
restate existing law, should not be lightly decision of a handful of MSPs.
dismissed. If the bill does proceed, it can be There are many worthy topics for
expected to take up much parliamentary legislation, but at times of national
time before it is passed. The same may emergency such as this, our Parliament
Disclaimer be true of the well intended incorporation would improve its public standing if it
The views expressed in the Journal of the Law
Society of Scotland are those of invited contributors of the United Nations Children’s Rights cleared its decks in order to prioritise
and not necessarily those of the Law Society of
Scotland. The Law Society of Scotland does not
Convention, a bill still to be introduced. Are devoting as much time as possible to
endorse any goods or services advertised, nor any these the best use of the now limited time alleviating the effects of lockdown and
claims or representations made in any advertisement,
in the Journal and accepts no liability to any person remaining before next May’s election? recession on our people.
for loss or damage suffered as a consequence of their
responding to, or placing reliance upon any claim or
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© The Law Society of Scotland, 2020
ISSN: 0458-8711 Alan W Tom John West Catherine Heather
Total Net Circulation: 13,689 Robertson McEntegart (co-author Corr Thompson
(issue specific May 19) is a senior is a solicitor with Elizabeth is principal is a partner
Av. Net Circulation: 13,628 (Jul 18 - Jun 19) associate with advocate Ahmad) is an soicitor, Legal with Brodies
MBS Solicitors, and partner associate with Services, and a member
Edinburgh at TLT LLP SKO Family Scottish of the Tax Law
Law Specialists Enterprise Committee
August 2020 \ 3
THE JOURNAL OF THE LAW SOCIETY OF SCOTLAND
VOL.65 NO.8 – AUGUST 2020
Perspectives Features Briefings In practice
04 Journal online 12 30 Criminal court 40 Professional news
Our August website exclusives We revisit firms who shared Roundup, with COVID-19 musings Virtual custody courts; Council
remote working experiences: vacancies; Rising Star 2020; new
05 Guest view 32 Employment
what will change in the office? levy?; policy work; Will Relief
Stuart Munro Acting on anonymous complaints
42 The Word of Gold
06 Letters 16 32 Family
Charging in line with our brand
“New” lawyers, not “young”; Two contributions on the new An expert compromised
Reviews group actions rules, including 43 Training: a wider view
34 Human rights
from a working group member One firm’s programme for
07 Offbeat Judicial review and sifting out
learning business
Quirky news; Profile column
20 34 Pensions
44 Cross-border tax reporting
08 President Can the law allow “breathing PPF compensation; FCA action
DAC6: what solicitors need
Technology and citizens’ rights space” for contracts affected
35 Discipline Tribunal to know
by COVID-19?
Four recent cases
Regulars 46 Risk management
22 37 Property Common issues, and some tips,
The Supreme Court on siblings Commercial leases: code of in wills, trusts and executries
09 People as “relevant persons”: what practice for business recovery
48 Ask Ash
33 Consultations does it mean for hearings?
38 In-house Anxiety over going back to
39 Archive
Findings of the lockdown survey the office
45 Notifications 26
49 Classified The Scottish football litigation:
50 Recruitment arbitration clauses, and unfair
prejudice
COVID-19 code
28 of practice for
Cross-border maintenance: commercial leases:
law and practice after Villiers Page 37
ONLINE INSIGHT
P U B L I S H E D O N LY O N W W W. L A W S C O T. O R G . U K / M E M B E R S /J O U R N A L /
The broken shield: a Legal tech: some tips Charities: members Tradecraft: money
compliance nightmare? for catching up have “fiduciary” duties and practicalities
Loretta Maxfield considers the Brian Rooney provides some A Supreme Court decision in an In his latest “tradecraft”
implications of the CJEU decision personal recommendations for English appeal on the duties of collection of practical advice,
upholding the standard contractual the benefit of lawyers whose members of a charitable company Ashley Swanson focuses on
clauses for data protection outside legal tech is lagging behind, and should be noted also by Scottish property transactions and trying
the EU, but invalidating the EU-US impeding their productivity. charities, Alan Eccles advises. to smooth the path particularly
Privacy Shield. around settlement.
4 / August 2020
OPINION
Stuart Munro
While the pilot scheme has encouraged some to believe that remote
summary trials can become the norm, serious questions remain to be
answered if basic rights are to be protected, as they must
t’s funny how quickly things change. Six months • What about the accused? Can they participate from home?
I
ago the news was all about Brexit; summer What if they record witness evidence? How can we tell they are
meant heading to the sun; work meant following the proceedings? How can they communicate with
commuting, the office, the courts. their solicitor? Or should they also be at court, and in the
Then, in mid-March, our lives were turned same room too?
upside down. The initial hope that coronavirus • How does the system cope with vulnerable witnesses or
would be over in a few weeks has been replaced by a recognition accused? What if a participant doesn’t have wi-fi, or a suitable
that we’re in it for the long haul, with social distancing, local laptop, iPad or phone? The system has to cater for everyone.
lockdowns and further waves and spikes until a vaccine finally • And what about volume? Most courts allocate six to 10 trials
comes to the rescue. per courtroom, on the assumption that most will resolve or be
The pandemic has had an enormous effect on the justice system adjourned, and only a handful will proceed. How would Webex
and those who work in it. Scottish courts went into near-shutdown cope with callovers and last minute changes in priority?
for several weeks, the largest sheriff courts being reduced to Many of these challenges will be capable of being addressed.
dealing with a handful of custodies each day. Webex is a safe, secure, reliable and established technology.
Any society needs a functioning justice system. Thoughts Courts, like the rest of society,
turned to how the courts could reopen, while observing social must adapt to a changing world.
distancing and shielding. The understandable priority was But any change has to be for the
High Court trials. But how can you accommodate 15 jurors (not better. Certain fundamentals –
to mention everyone else) with social distancing? A proposal effective participation, the right
to abolish juries temporarily rightly caused outcry, and was to private communication with
abandoned. Instead, the solution presented was to spread the a lawyer – are non-negotiable.
jury around the courtroom; but the need to find somewhere Summary cases can involve
else for the jury to deliberate and for the public to watch the very serious allegations; they
proceedings meant three courtrooms being needed for every trial. can lead to imprisonment, loss
And the lockdown had caused a backlog in trials, which would of employment and family
grow unless the courts could run the same number as before. breakdown.
Something would have to give. Importantly, the context has
Scottish Courts & Tribunals Service realised that remote changed since early lockdown.
hearings – where some or all participants are elsewhere – High Court trials are now using
could be part of the answer. It cautiously introduced Webex remote juries – where the trial
videoconferencing for the Inner House, then the Outer House and takes place as normal, but the
Court of Criminal Appeal. However, to free up enough space for jury is located outside the courtroom. That could mean each trial
High Court business (to say nothing of sheriff and jury trials), there only requiring one courtroom, thereby removing the threatened
would need to be a clearout of sheriff court business. takeover of the whole court estate, and freeing up courts for
Against that background SCTS decided to pilot Webex for business such as summary trials.
summary trials. The first remote summary trial took place in Webex will no doubt continue to play an important role in
Inverness on 9 June, with a single accused, two police officers our justice system. It may help with procedural, non-evidential
giving evidence, and one Crown production. The sheriff was in business. Remote trials may work in certain instances, such as
chambers; everyone else participated remotely. The technology health and safety prosecutions. There may be greater scope
worked perfectly well, and the trial proceeded without incident. in other types of process, such as fatal accident inquiries or
The accused was acquitted. Further pilots have followed in commercial proofs. Ultimately, however, we must proceed with
different courts. caution. Maintaining a functioning justice system in a pandemic
But just as a swallow does not a summer make, so a handful must involve preserving fundamental rights, and that will require
of pilot trials do not provide a basis for a fundamental redesign of careful planning, consultation and evaluation..
criminal courts. Many issues remain to be answered. For instance:
• Where should witnesses give evidence from? Is it appropriate
that they participate from home? How to guard against undue
influence? And if they have to come to the courthouse, is it not as Stuart Munro, director, Livingstone Brown, Glasgow, and member
well putting them in the same room as the sheriff? of the Law Society of Scotland’s Criminal Law Committee
August 2020 \ 5
CORRESPONDENCE BOOK REVIEWS
Employment
“New”, not “young” Law in Scotland,
3rd edition
SAM MIDDLEMISS AND
recently completed was discussing what the legal profession MARGARET DOWNIE
I
my Diploma after was looking for in its graduates. The
five years as a phrase “what firms are looking for PUBLISHER: BLOOMSBURY PROFESSIONAL
ISBN: 978-1526509628; PRICE: £85
mature student, in their young lawyers…” took me by
beginning when I surprise, as I was sitting near the front At nearly 900 pages, this is a comprehensive overview
was 47. I had never and whilst I was the oldest, there were of employment law. Its timing is unfortunate because
really considered certainly other students in their 30s and of the disruption due to COVID-19 and presumably
subconscious age discrimination, though 40s. Such statements have been quite temporary changes to Employment Tribunal practices.
as a gay male secretary when starting common over the years and I have made It is anyone’s guess what Brexit will bring.
my career in the late 1980s, a point of raising it privately with the The authors cover the major bases of British
discrimination was not new to me. lecturer, or guest speaker, to make them employment law, and its current place in the
In fact, I experienced the spectrum of aware of how disappointing this can be respective legal frameworks of Scotland, and England
discrimination in the office environment, to a mature student. & Wales. They draw on a large body of case law.
not only against myself but due to race, On another occasion, a speaker said A distinctive feature of Scottish Employment
sex, sexuality and disability to name they had thought about rejoining a Tribunal practice is that unlike south of the border,
but a few. firm in their late 30s or early 40s after witnesses give their evidence in person, as opposed
Over the years, there has been teaching, but had decided they were to by written statement, in almost all cases; and
considerable progress, including “past it”. Again, not only I but others witnesses who have still to give evidence are not
legislation and increased awareness in the class felt excluded by this and permitted to hear preceding evidence. The authors do
of these issues. There also appears to wondered whether it was worth all the not make these distinctions clear. They also indicate
be more awareness in the public mind effort studying if this was the reality. tribunal judgments are usually given on the final day
of age discrimination against mature I, and other mature students I have met, of the hearing. This is only in undefended cases.
people in the workplace. This does not have considerable drive and ambition to An increasing number of cases at first instance are
mean, of course, that there is not still undertake university studies later in life heard by a legally qualified judge sitting alone. This
considerable work needed in all areas and it should be appreciated how these has undermined the concept of the industrial jury,
to eliminate discrimination: witness the off-the-cuff remarks can come across. which underpinned the original tribunal system.
recent racial discrimination that still I write this in the hope that, just as This book will prove a worthwhile addition to any
features daily in the headlines. you would not now make references employment lawyer’s bookshelf, but needs to be
With this in mind, I have felt it to sex or race, references to age are treated with caution on matters of procedure.
necessary to raise an issue on several considered and adjusted. Robert Neil
occasions with both my universities Butler as early as 1969 coined the Steve Briggs, Beacon Workplace Law Ltd
regarding statements that are quite phrase “ageism” and considered that it For a fuller review see bit.ly/3icoFMM
common but as to which there appears could be either “casual or systematic”.
to be a lack of understanding of the The above statements fall squarely
impact they have on mature students. under the “casual” element.
The Curious Case
The comments are quite innocent and An article I recently read referred at of Maggie Macbeth
run off the tongue easily, but I suggest one point to “young lawyers”, but also STACEY MURRAY
that, just like other comments about later to “newly graduated” and “newly RED DOOR PRESS: £8.99; E-BOOK £2.99
sexuality, race, sex etc, they no longer qualified”. So, when you are going to “A gentle book, one to settle down
have a place in modern society. use the word “young” to refer to a group with after (another) fraught day of
You are now wondering what on of people who may not, actually, all be homeworking and switch off.”
earth these could be. Surely you “young”, please consider the implications This month’s leisure selection is at
have never made them? Well, you and use a different expression. bit.ly/3icoFMM
might be surprised. The first instance I
experienced was when a senior lecturer A proud mature student The book review editor is David J Dickson
BLOG OF THE MONTH
lawscot.org.uk
We return to home territory this month in seeking things to do, obtaining support
to highlight Rob Marrs’ “Hints and tips for and supervision – and, at number 1, setting
trainees whilst being supervised remotely”. a pattern of communication. Wellbeing
Knowing the difficulties facing trainees, features, too.
who normally learn much by osmosis, and Supervisors will find a link to a page of
their supervising solicitors, he provides 10 tips for them as well!
tips to encourage trainees to be proactive To find this blog, go to bit.ly/33vHrrJ
6 / August 2020
Buy your way in 1
WORLD WIDE WEIRD
Public opinion in Ukraine has split over a Justice to go out and offend, or just to turn yourself in? Getting the hump
Ministry scheme offering gift certificates for Justice Minister Denys Malyuska, who claims the tinyurl.com/y3gkv343
“luxury cells” in the country’s less than congenial initiative will fight corruption, has promoted the Prosecutors have claimed
remand centres. service as a potential birthday present for officials they were unable to
Introduced in May, the “pay cells” offer and politicians. Surely it wouldn’t work here... act when a herd
three meals a day, 24-hour security – and Proceeds are supposed to be used to of 80 camels
a reduced risk of catching COVID-19. But improve conditions in regular cells. But caused havoc in
limited to those awaiting trial, and reaction has ranged from the Russian region
still presumed innocent. “the best marketing tool in of Astrakhan after
Certificates are only the history of the Justice being released by a
valid for six months, Ministry”, to “circus” pensioner who could
after which the and “laughing stock”. no longer keep them.
remand centre
gets to keep the tinyurl.com/ 2
money. An incentive y2yr5wsh Bear faced
tinyurl.com/yxgzwbq9
Campaigners are attempting to prevent
PROFILE Mexican authorities from trapping and
relocating a black bear in a wildlife
Rachel Wood
park that approached hikers and
appeared to pose for a selfie.
3
Rachel Wood joined the Law Society of Scotland Rooster rap
in May as Executive Director of Regulation bit.ly/33vWxSq
A Louisiana man, who
e Tell us about your and, with lockdown easing, claims to be pastor
career to date? I have enjoyed some walking of a church called
I am a bit of poacher turned meetings with colleagues. Holy Fight Ministries,
gamekeeper, having worked Thank goodness we have today’s is claiming in a
in big firms for over 25 years. communications, but there’s lawsuit that his
My career has been varied but no substitute for face-to-face arrest for illegal
there have been consistent connection. And I do miss being cockfighting was a
strands in relation to risk, able to print and read documents constitutional violation
quality assurance and change in hard copy! of religious freedom.
management. I started as a
corporate solicitor and moved I thought law would be the u What do you see as the TECH OF THE MONTH
into knowledge management at most challenging, applied for key regulatory issues?
McGrigors, then worked in risk
management there as well. For a
the accelerated LLB and here
I still am.
At the moment, the challenge
is maintaining high quality
Olio
iOS, Android – free
few years, I was Director of Risk client service and continuing
and Knowledge at HBJ Gateley t How have you found regulatory compliance during Tons of good food
before returning to Pinsent joining the Society? remote working, furlough and goes to waste
Masons, my most recent post. I don’t think I would recommend court closures – to which the every day. Olio is
joining any organisation during profession is rising admirably. a localised way of
r What motivated you a global pandemic and full Longer term, the legal services allowing people
to become a solicitor? lockdown! It has made it more review is essential to allow the to share food
Accident! My first degree challenging to connect with Society to modernise regulation. and other items
was in history and my options people and learn the ways of that they might
on graduating seemed to be working, but everyone has bent Go to bit.ly/3icoFMM otherwise
academia, teaching or law. over backwards to be helpful for the full interview throw away.
www.olioex.com
August 2020 \ 7
PRESIDENT
Amanda Millar
Technology has enabled many events to happen recently that would not otherwise
have – but is not a panacea when it comes to upholding justice and the rights of the
citizen, rights which globally are under increased threat due to the pandemic
… August and the staycation is in front Virtual activity
So
of me as I write, and behind as you It was with great joy and hope that I launched our first virtual
read. I hope you are all as safe and summer school to people from a diverse range of backgrounds with
well as possible in these ongoing an interest in the law, which allowed us to open up the opportunity
challenging times. I speak regularly to many more participants and had more than 70 attendees – more
to people looking for a career in law than three times as many, and from a wider range of locations, than
and always say one of its great joys is we can normally accommodate at the in-person events.
that nothing stays the same and every I also participated in a panel session with my
day is different. Now the whole of #oneprofessionmanyjourneys fellow role models, hearing their
society is getting a chance to see that in action, and not necessarily inspiring stories and running out of time to answer the myriad
in a good way! questions from the very engaged students first thing on a Monday!
As a profession, we continue to show our resilience, flexibility, Our High Street and Sole
and desire to deliver for our clients and make meaningful Practitioners Conference took
contributions to civil society. place towards the end of July,
Technology has continued to be my constant companion again entirely remotely, and with
in my work as your President. I had the opportunity to attend the highest-ever attendance
a world leaders’ round table of lawyers recently, and inputs from of close to 200 participants.
colleagues in Asia and Latin America brought into sharp focus the Wonderful to be able to engage
fact that there is much legal turmoil across the world at present, with so many members and
impacting on the human and civil rights many of us here take share knowledge from a wide
for granted. The changes we have experienced through global variety of speakers in the
pandemic necessity, and the resurgence of extreme views, show interests of continuing to support
us that we must not be complacent about our human rights and members in a range of ways
the need to preserve the pillars of our profession that contribute in these most unusual of times.
to the democratic and civil rights that we hold dear: For our in-house colleagues,
The independence of the rule of law, our responsibility as we launched the nominations
solicitors to provide advice without fear or favour, the right to be tried for the now annual Rising Star
by a jury of your peers for the most serious offences, the right to award. I am fascinated to see this
express a strong opinion that may disagree with that of others. year’s nominations and I know
We should oppose hatred, discrimination and marginalisation, our in-house sector will have
but not debate. We must maintain our professional standards in the risen to their own challenges of client service and development.
interest of our hard-won reputations but in the greater interest of More information can be found on p 40 and on our website.
society. As citizens, we have rights and responsibilities. As solicitors, On a sad note, I was shocked by the sudden death in late July
we have rights and responsibilities to ensure these are upheld for of Sheriff Richard Davidson, who I had the opportunity to appear
all through ethical, professional advice and appropriate challenge. before in Dundee, Fort William and in hospital. He was always
We contribute to supporting business, relationships and individuals forthright, and my abiding memory of him was that he took a
in good times and bad. We prosecute, defend, challenge, protect, person-centred approach to cases involving those with mental
develop, regulate, secure and sustain. illness, before it was established as “the right thing to do”.
Technology, while incredibly helpful and positive in so An attitude which should inspire.
many fields, is not the panacea for everything that is currently Stay safe.
challenging. In many areas there is work still to do – as the results
of our survey on the virtual custody courts pilot showed..
Society needs our profession to remain viable to continue Amanda Millar is President of the Law Society of Scotland –
this work. President@lawscot.org.uk Twitter: @amanda_millar
8 / August 2020
Intimations for the People section should be
People on the move
sent to peter@connectcommunications.co.uk
To advertise here, contact
Elliot Whitehead on 0131 561 0021;
elliot@connectcommunications.co.uk
Thorntons Law LLP (l to r): Michaela Dougan, Lauren Fettes, Joanne Clancy, Rachel High, Rachel Anderson and Neil Falconer
ABERDEIN CONSIDINE, Johnston Clark KIPPEN CAMPBELL LLP, Perth, Katie Mahoney (Succession &
Aberdeen and has also been is delighted to announce the Tax Planning), and Fay Shearer
elsewhere, re-elected for the appointment of senior associate (Commercial Property).
has appointed seventh time as Jacqueline Jane Dow as a partner
Nicola Gray managing partner, with effect from 1 August 2020. MURRAY SNELL LLP, Edinburgh,
as a partner in a position he has She will assume responsibility for part of the MACROBERTS group,
the Employment held since 2000. the running of the firm’s Private has appointed Gail Clarke as an
Law team, working Client department. associate in its Estates, Forestry,
primarily in Aberdeen and BRODIES LLP, Edinburgh, Agriculture & Renewables team.
Aberdeenshire. Glasgow, Aberdeen LEVY & McRAE SOLICITORS LLP, She joins from BLACKADDERS.
She joins from MACKINNONS, and Dingwall, Glasgow, has announced the
where she led employment has appointed appointment of Carol Gammie SHOOSMITHS LLP, Edinburgh,
services. private client as an associate. She joins the Glasgow and elsewhere, has
lawyer Lisa Law, firm after having worked as a appointed Michael McLaughlin,
ADDLESHAW GODDARD, an accredited legal consultant with the OFFICE formerly head of Employment
Edinburgh, Glasgow, Aberdeen specialist in OF THE PROSECUTOR OF THE (Scotland) with DWF, to its
and internationally, has appointed incapacity and UNITED NATIONS in The Hague. Glasgow office.
David Kirchin, head of the mental disability She is also a commissioner with
corporate team in Scotland, as its law, as a director, the Scottish Criminal Cases Review STUART & STUART, Edinburgh,
new head of Scotland. He will also and Sarah Lilley, Commission. Bonnyrigg and Penicuik, announce
sit on the board of the company. an accredited the retirement of Gordon Cameron
He succeeds Malcolm McPherson, specialist in MORTON FRASER LLP, Edinburgh as a partner on 31 July 2020. Mr
who has retired as a partner but child law, as a senior has announced a total of 17 Cameron began his career at the
will remain with the business as a associate. Both will be based in promotions across the practice, all firm in 1985 and became a partner
consultant. Dingwall and join from INNES & with effect from 1 July 2020. in 1987. He will remain with
MACKAY. Mimi Stewart has been made a the firm as a consultant. Emma
BELLWETHER legal director in the Construction Horne, head of the Private Client
GREEN, DENTONS, Edinburgh, Glasgow, team, and also in that team, team, is assumed as a partner
Edinburgh Aberdeen and globally, is to close Caroline Earnshaw and Julie from 1 August 2020. The firm has
and Glasgow, its Aberdeen and Watford offices, Scott-Gilroy become senior also welcomed Angela Agrawal,
has appointed with lawyers and staff in these associates, as does Lauren Hart who joined in January as an
Caroline Clark as locations working from home (Banking & Finance). associate specialising in residential
a consultant to its permanently. The Edinburgh There are seven new associates: conveyancing.
Litigation and Regulation team. and Milton Keynes offices will Matthew Barclay (Agricultural &
be available to those staff now Rural), Bess Innes (Commercial THORNTONS LAW LLP, Dundee
BLACKADDERS, working from home permanently. Property), Jack Kerr, Kirsten and elsewhere, has promoted
Dundee and McManus and Emma Wood Joanne Clancy and Lauren
elsewhere, JONES WHYTE LLP, Glasgow, (all Succession & Tax Planning), Fettes from Personal Injury in
has appointed announces the promotion of and Catherine MacPherson and Edinburgh, and Neil Falconer from
Peter Duff of its family lawyer Amerdeep Dhami to Angela Myles (both Banking & Intellectual Property in Edinburgh,
Glasgow office as associate, personal injury solicitor Finance). to associate; and Rachel Anderson
chairman, following Nicola Waters to associate, and Six new senior solicitors are and Rachel High, both from Private
the retirement of partner Matthew McCabe, head of the Robyn Keay and Matthew Miller Client in Dundee, and Michaela
Scott Williamson, who Industrial Deafness Department, (Litigation), Laura McKenna and Dougan from Personal Injury in
will continue as a consultant. to senior solicitor. Nicole Moscardini (Employment), Edinburgh, to senior solicitor.
August 2020 \ 9
I N A S S O C I AT I O N W I T H D E N O V O
There are only 3 problems
your law firm faces
It all boils down to time, profit and efficiency. We think we can help
hree problems?
T
Here they are…
1. We need to save time
2. We need to make
more profit
3. We need to make our
team more efficient.
Now, you may be thinking, “Come on, of course
they are; this is not new information.” However,
my point is not whether these are the problems;
I’m saying they are the only problems law firms
face. No matter how you dress it up or how
you describe them, it’s always these three core
challenges. And in most cases, businesses turn
to tech for help.
Are lawyers technophobes?
What I find frustrating is when I hear people
speak about lawyers as if they are stuffy, three
piece suit wearing, money clutching laggards Profit • Do you have a clumsy, paper-based, error-
who must be tamed and tricked into modernising I’ve often heard that lawyers will only buy prone, manual system?
their business. For the most part that is simply software that looks “cool” and is quite expensive. • Are you running your business on Excel and it’s
not the case, and I instantly empathise with the Maybe that’s true for big firms, but whatever no longer working or scaling?
vast majority of lawyers out there grinding and anyone’s perception is, lawyers aren’t made of • Do you have people who need to work remotely
fighting the good fight. You’re not technophobic money. If your rates seem high, your costs are or at home, but you need access to the same files?
idiots who repel the idea of future proofing your too. Margins for most of you are tight, and getting • Are you micro-managing your team and their
business. You’re just busy and want help to make tighter. So, we have to give you a system that processes because you just can’t trust them to
it perform to its best. does what you need, at a price that works for do things exactly the way you would?
you. From there we streamline and automate • Are you and/or your team spending most
Time what we can to help you reach your goals and of your day working through laborious
When it comes to saving time, we keep our maximise ROI in every way possible. administrative tasks?
solutions in search of problems. We are less One way includes finding a cost-effective • Do you have a system that can’t keep up?
interested in looking “really cool”, and more package that can simply “get the job done”. So, It’s safe to say that if you’re not maximising
interested in being productive. You’re interested in rather than you viewing our tech as a reluctant your time or being as efficient as you can, you’re
technology that solves problems you encounter overhead, you buy into the idea that this system leaving money on the table. We want to reduce
every day in practice: writing, billing, analysing will help you and ultimately make you more the time spent performing routine and critical
firm performance, and client relationship profitable. Tick! tasks, so you don’t lose the opportunity to serve
management. You want to do these things quicker additional clients.
and more efficiently. We can tick that box. Efficiency
I can also guess where lawyers don’t want to SMBs are constantly looking for new technology Let’s not overcomplicate things
be at 6.30pm: just like everyone else, you don’t to create a more productive and efficient Lawyers do complex work and can have
want to be in the office! So, when developing our workforce. In addition, remote working has led complicated demands. That doesn’t mean you
software, we think about your everyday practice. to an increased need for on-demand data – need complicated software.
If you have to work late, it’s not because you’re accessible any time, from anywhere. I define We don’t think you are technophobes. Far from
uploading your latest TikTok video! If we can save productivity as the strategic alignment of vision, it! All we want is the opportunity to show you
you time and help you leave at 5.30 instead of focus, and technology. Identifying tech solutions how treating tech slightly differently can help
6.30, you might just consider buying our product. that unlock these and enable true productivity, all and ultimately become an integral part of your
Plus, we know you simply won’t believe us if an within budget, is a goal of all SMBs. business strategy to meet your objectives.
overly enthusiastic salesperson tells you our Rather than me rhyming off 20 features that
product is so revolutionary that you’ll suddenly will make you and you team more efficient, just Let’s solve these three problems together. Call us
be working a 40-hour week! We’re realists and ask yourself a few questions and take it as read on 0141 331 5290, email info@denovobi.com or
BS is not a language we speak! that we can tick those boxes too: visit www.denovobi.com
10 / August 2020Manage your business better:
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Practice Performance Matters Visit denovobi.comREMOTE WORKING
Reinventing the office
When law firm offices reopen, will it be back to work as before? How much will have changed through
experience of remote working? The Journal revisited firms we quizzed as lockdown began
Words: Peter Nicholson
olicitors’ offices south Wellbeing, often cited as a concern to see how adaptable our colleagues have
S
of the border are in this context, has he believes seen been throughout this situation.”
opening up; on present benefits, “with many colleagues taking That is reflected by Marianne
indications Scotland advantage of the time they are getting McJannett, associate at TC Young, who
has a few weeks to back from their daily commute and using has been able to carry out her work
wait. By then, it will be that for exercise and fitness”. “in the same way as I did in the office,
almost six months since lockdown took Jennifer Young, chairman of Ledingham meeting deadlines and client needs as
effect. Will “going back” mean just that, or Chalmers, believes remote working required. I have not missed the morning
has the working day changed for good? “has largely worked well, with “a strong commute and fighting for a coveted seat
Back in April, soon after lockdown, the community spirit about embracing this on the train into Glasgow, although I do
Journal surveyed a spread of firms to find change”, but has had its challenges, such miss having 45 minutes each day to sit
out how their teams were adjusting to as juggling work and family commitments. and read and set myself up for the day,
remote working. This month we followed “In some ways, remote working or switch off at the end of the day”.
up to find out how they now view the pros has brought us closer together across Likewise, Paula Skinner, partner at
and cons, and the impact on future practice. the firm. While folks have missed the Harper Macleod, says: “Before all this I
opportunity to turn to a colleague during would always have thought that in our
Driven change the day to bounce ideas off them, or line of work, when you are involved in
“The main positive has been that it has we’ve had to think again about how deals, you would need to be in the office.
forced innovation in terms of new practice best to mentor team members online, However, we have proven that remote
and procedures”, reports Greg Whyte, there’s something more intimate about working can be done effectively. Many of
managing partner of Jones Whyte. being ‘invited’ into someone’s home over our clients are entrepreneurs and they’ve
“We can now operate with only 2% videoconference.” simply been getting on with it, as are we.”
of the overall team physically present Overall, output does not appear
(and this number is decreasing as we to have suffered. “If anything, we are A need for contact
adapt further). The negative has been more productive from home,” claims But people do miss the casual contact with
the absence of the social side, both in Simon Allison, employment partner at colleagues, especially for work matters.
and out of work time.” Blackadders. “Except for occasional trips to “Not having people right beside me to
Shepherd & Wedderburn’s Andrew the office for essential scanning, there isn’t bounce around ideas, or even listen, has
Blain reflects others in paying tribute anything that cannot be done from home, been difficult,” McJannett acknowledges.
to technical support. “Thanks to the thanks to technology. It has been refreshing “While we have daily phone calls with
tremendous work of our IT team and the each other, and weekly team meetings
dedication of our lawyers and support via Zoom – a lifeline and a great way of
staff, we have not seen any disruption to keeping in touch, it’s not the same as a
client services while working remotely.” quick chat over a cuppa in the morning.”
Secure videoconferencing technology for She further admits: “The biggest
remote meetings with clients, contacts negative for me has not been remote
and colleagues has been extended to working; it has been working at home in
virtual social events for keeping in touch. a pandemic. This has involved general
“There have been many positives,” worry about the global situation, as well
Brodies’ Nick Scott affirms. “Perhaps, as personal anxieties about family and
most importantly, how quickly and friends’ health, while also juggling being
seamlessly our colleagues engaged a full time employee and stay-at-home
remote working. It has also accelerated mum to a very active toddler. It has
the move towards more digital practices. certainly been a challenge.”
One tangible measure is the reduction in Skinner comments: “It is working
printing, which has decreased tenfold in apart, rather than ‘working from home’,
the last three months.” which is the issue you need to monitor
12 / August 2020team members working together. “As
time passes, cracks naturally appear and
the need to re-engage in a traditional
setting (both professionally and socially)
becomes apparent.”
Flexible future?
Has the experience led to a change of
thinking about how much homeworking,
and flexible hours to allow?
Allison replies that while the SSSC
already had a very supportive approach
to flexible hours, “We are developing
an approach which will be much more
supportive of the principle that work is
an activity, not a place. Most staff are
indicating that in future they would like to
work a few days at home and a few days
in the office.”
“Unsurprisingly, most colleagues are
expressing an interest in a mix of home
and office working,” Blain reports. “We
will certainly be guided by our colleagues’
preferences and the needs of clients,
who, almost without exception, have also
adapted rapidly to homeworking.”
For Whyte, “The pandemic has
strengthened our view that homeworking
is something to be embraced rather
than feared.
“Flexibility is what professionals,
especially millennials, demand and
expect nowadays. It is not, as is
sometimes said, that millennials are
entitled: far from it. Rather, millennials
constantly. We’ve learned that having
everyone working from home means
“The main positive has been that have choices and opportunities. Enabling
these enhances rather than stifles
you need to be more organised than it has forced innovation in terms productivity and creativity.”
ever, even in terms of simple things such
as filing because you can’t quickly ask
of new practice and procedures” Scott emphasises allowing choice,
given there are those who do prefer to
one another where something is. It’s work from the office; Young agrees that
a guaranteed way to leak time so you her firm now has “lots of confidence in,
really have to be disciplined.” included weekly team updates, live virtual and a much clearer picture of”, how well
She too misses “the small chats”: Q&A sessions, and surveys about how both homeworking and flexible hours
“When you are beside someone all day people want to be updated, and what can work.
you can get a better idea of what is really they would like to see happen when they McJannett “would question any
going on with them, though I think the fact return to the office. employer whose employees stepped
that we have all recognised this shows She points out the particular up to the plate and continued to work
we are thinking about one another’s challenges for new people joining, for from home to support a business during
wellbeing, and that’s a good thing. whom strong internal communication has lockdown, who then denies them the
“For my part, I feel I can be more been particularly important. option of remote working in future”.
productive in the office, but that’s partly Maree Allison at the Scottish Social TC Young has been “incredibly
because it is more efficient for me as a Services Council agrees. “Induction and supportive” of her circumstances, and
senior person to have a quick chat with training of new staff is more challenging. “as long as the work is getting done,
a younger colleague, mentor them and We are conscious that for some staff it to the same standard and in line with
pass on pieces of work. Those small, has been an isolating and difficult time.” client expectations, then allowing people
immediate interactions are definitely Whyte, too, stresses the importance the option of flexible working is key to
harder to replicate.” of the “informal conversation or chance adapting to the changing landscape of
Young observes: “Internal encounter” for ongoing learning. the workplace”.
communications have become even more Another risk he sees from extended Skinner responds: “From my
important. We took the view we couldn’t homeworking is the dissipation of the discussions it’s clear that everyone in
communicate too much.” These have trust and relationships built up between the team at least wants to get back to
August 2020 \ 13REMOTE WORKING
the office to some degree, though redesigned, then built up from that
in general I think people feel they starting point”.
have been able to achieve a good As regards hours, her firm sets
work/life balance.” certain parameters. “We quickly
Blackadders’ Allison begins realised it was essential for us to
with team goals and timescales. “It keep to a core period where we
doesn’t matter whether we choose knew the whole team would be
to do something outwith working working and available. These core
hours or between 9am and 5pm. It hours of 9.30 to 2 mean there is
is about assisting them accomplish a good chunk of the day when we
these goals. Leaders need to be know we can interact freely with
clear about how their team fit into each other and schedule calls and
the bigger picture. You cannot over- catchups with the team and with
communicate when you’re working clients and others. Outside these
with a remote team.” hours, everyone was free to make
He sounds a note of caution up their hours at whatever times
about “psychological safety”, which suited them, subject only to the
is “a real concern for our firm. Our requirement that, once stabilised,
partners have taken it in turns to these became relatively fixed so
email all staff on a monthly basis that we all became familiar with
with an update from each unit” –
covering not only firm business, but
each other’s work patterns.
“Because we all have different
“It doesn’t matter have taken a shared space which
we use as a team hub, where we
voluntary work undertaken by staff. commitments and also times of whether we can get together for in-person
“We even had one update featuring
a trainee’s TikTok dance routine. Our
day when we are at our most
productive, between us we are
choose to do meetings once or twice a week,
and which also acts as our physical
managing partner also conducted working from 6am until 10pm, and something outwith presence and a space where we can
a live webinar where staff could
sign in anonymously and type
productivity is higher than ever.”
working hours or meet clients and contacts.
“We have set up a social
their questions. They could ask him Shape of the office between 9am and enterprise to manage the space
anything (and they did).”
Anne Campbell of Lennox
What does it all mean for office
needs? Here Lennox Forensic has
5pm. It is about when we are not using it and are
letting it out on a non-profit basis
Forensic Accountants describes made the most radical change. assisting the team to support local freelancers and
homeworking as “the ultimate in
business interruption insurance”;
“In our new world of work,
maintaining an office space 24/7
to accomplish small businesses who need ad hoc
space but cannot afford to take on
the need now is “to make sure just doesn’t make sense,” Campbell these goals” premises at this time... it is a privilege
that our business structure declares. “We have taken the to be able to help in this way.”
and operating procedures are decision to give up our office and Our other respondents may be
Remote hearings: how far?
We took the chance to ask about our positive move. Hopefully, remote hearings preliminary hearings “relatively easy” to carry
respondents' experience with remote court and will be a bigger part of what we do”; and out this way: “and the employment judge was
tribunal hearings, and whether they think these (concerning Fitness to Practise Panel hearings) very understanding when my toddler came
might become the norm. Maree Allison adds: “Feedback has been into the room asking for Fireman Sam to be put
Jennifer Young reports a general view in very positive. For us, they will be the norm back on the television!” But they took longer
her firm that they have been effective and when appropriate.” than usual, two running well over an hour
efficient, and an expectation such digital use Marianne McJannett found tribunal instead of normally 20-30 minutes.
will increase. However, “There is a high level of She adds: “To conduct final hearings relying
frustration that the Scottish court infrastructure on witness evidence and numerous documents
seems to lag behind that in other jurisdictions, could be difficult, and ultimately I think would
and England in particular.” take up far more tribunal time than would be
Nick Scott responds: “We believe this is a required for in-person hearings.”
positive step forward for the Scottish courts, Simon Allison's team hopes remote
and a move towards creating a system that... hearings, while good for straightforward case
delivers a number of benefits for our clients, management, do not become the norm. “Just
particularly in efficiency and cost.” like with meeting clients over Zoom, it is very
Greg Whyte states: “From a personal difficult to gauge emotions, which makes it
perspective I think this is a long overdue difficult to ensure that justice is done.”
14 / August 2020I N A S S O C I AT I O N W I T H M I T I G O
Top 10 cybersecurity
viewing their office space differently,
but still regard it as integral.
“In planning Brodies’ new office
when they take place virtually. It’s
really easy too to share documents
during these sessions and update
checks for your return
in Edinburgh [a move scheduled them in real time.” David Fleming, Chief Technology Officer at Mitigo gives
for next year], we had already McJannett takes a similar view. his 10 top tips to help firms avoid a cyber incident and
challenged ourselves to think Presenting Zoom webinars has reduce the risk of a breach when returning to the office
differently about what the office been “fantastic and a great way
is, and how clients and colleagues of updating clients and contacts he move to
T
will want to use it,” Scott explains. throughout the country, without the remote
“Having a physical presence is still travel time and expense”. Attending working
very important, arguably more client management committee caused a
so, as changes brought about by meetings virtually has also worked spike in firms
the pandemic will likely see more well: “an effective way for clients falling victim
virtual hearings, for example, and to keep costs down while taking to damaging cyberattacks,
so to be able to provide the space appropriate legal advice on difficult including ransomware and email
and the technology for our clients in decisions”. And CPD “has been account takeover. I now fear, as
that respect, is fundamental.” really nice to do from the comfort staff start to return to the office,
Similarly Whyte says: “We have of my desk”. that even bigger issues may lie
just completed the purchase of a Whyte plans to respond to ahead of firms.
new head office in central Glasgow. I demand: “We will keep in place The things which would
believe it is important to have a base all new methods of communication keep me awake at night are
where everyone can congregate and and interaction, while recognising (1) malicious software being
meet clients. I suspect it will operate that face time is still king for introduced back into the office
more as a hub than as a place to be a great many clients, lawyers by “dirty” devices; (2) security
every day.” and transactions.” protection failing, leaving known
From an in-house perspective Blackadders’ Allison, though, vulnerabilities; (3) data being
Maree Allison also predicts office has found client video calls “quite lost or compromised in the
space – shared with two other public challenging, since it is normally move; and (4) staff bringing
bodies – being geared more towards straight down to business – there digital behaviour into the
meetings and training, with most is little chatter about niceties or office that is inappropriate and and ports should be removed,
staff working partly from home. personal matters, and lawyers have dangerous. retained by exception only.
Blain regards it as too early to work hard to spot their clients’ If you are worried about this 8. Personal data and
to assess the impact of the last real emotions during a Zoom call”. too, please read carefully this confidential information must
few months on future requirements, From the SSSC, his wife reports: top 10 priority checklist: be consolidated to follow
“but the experiences are likely to “As a public body we work closely 1. Staff cybersecurity refresher existing company policy. Check
impact how businesses use office with Government and other public training should be issued prior for temporary use of cloud
space in future”. bodies. That engagement has to office return and browser collaboration platforms.
Young is confident Ledingham worked very well remotely and we controls should be reviewed/ 9. Backup configuration needs
Chalmers will still need its five expect that will become the norm.” tightened. to be reviewed to ensure it is
offices across the country. “They’re A beneficial side effect, Scott 2. Work laptops, computers, and working effectively and securely.
important to our staff and our clients. relates, has been greater use of drives (including USBs) should 10. Local and external firewall
But lockdown will have an impact on electronic documentation and have a full anti-virus scan before configuration should be checked,
how we use them in the future and e-signing. “We believe this is returning. ensuring alerting is directed
what technology we’ll need.” progress towards legal systems and 3. Work mobile phones, laptops appropriately.
She expects a rise in demand processes that are more fit for the and computers should be There is of course more to do,
for video meetings, and with fewer future, and would encourage their brought up to the latest OS but if you do this top 10 well, it
people present, more demand for greater use as restrictions ease.” versions. will dramatically reduce your
areas for team activities. “That Campbell remarks: “It turns out 4. Once reconnected to the risk. If you do not understand
doesn’t necessarily mean fewer that new ways of working are fine secure network, ensure that any of the above, please seek
desks, but will make us think more after all – and in most cases an anti-virus software has updated appropriate advice from a
about how we use our existing improvement. Remote client identity and is reconnected to its central cybersecurity specialist.
space. It could well mean we need verification is a must now, and control. This article was produced by
less storage space for colleagues certainly appreciated by clients. 5. Personal computers and Mitigo. Take a look at their full
who, until lockdown, weren’t And the enforced rollout of all our phones should only be service offer: www.lawscot.org.
confident about going paperless!” tech-forward solutions that were connected to a properly uk/members/member-benefits/
previously only used for those separated guest wi-fi. professional-legal-services/
Meeting client needs clients we thought suited to these 6. Automated software and OS mitigo-cyber-data-security/
As for dealings with clients and approaches has been a revelation.” updates processes need to be
others, Young expects these to She concludes: “It feels like five reviewed and re-enabled as For more information contact
continue online longer term. or 10 years’ worth of change has necessary. Mitigo on 0131 564 1884 or email
“There’s a real discipline around happened in four months – and it 7. Remote connection software lawscot@mitigogroup.com
meetings, and meeting structure, turns out that is a good thing!”
August 2020 \ 15You can also read
