Employed lawyers: another European case

first_imgAnother day, another case before the European Court of Justice on the practice of law. This one is interesting because it concerns rules that prohibit lawyers who are employed in other functions from being members of the bar.The case – Case C-225/09 – arose out of a €200 claim for damage to a car by a man out walking with his dog in Italy. The plaintiff hired the services of two lawyers, who both happened to be part-time civil servants. The Perugia Bar subsequently removed them from the list of lawyers, because there is an Italian law forbidding part-time civil servants from also being lawyers. The plaintiff protested, and out of her €200 claim the European Court of Justice has now been brought in to settle whether Italian law on this is compatible with European law. From the brief summary available so far, it appears to be about not being able to be employed, even part-time, and a member of the Italian Bar at the same time. But is it also because of incompatible occupations? At any rate, it is part of recent Italian judicial activism, bringing Italian bar rules to the attention of the European Court (see, for instance, Case C-35/99 Arduino, and Joint Cases C-94/04 and C-202/04 Meloni and Cipolla). If the case touches on the great in-house counsel debate, we are entering territory where those on either side cannot understand why the backward conservatives/irresponsible liberals (take your pick) on the other side behave as they do. In the one corner are about half the bars of Europe, which permit lawyers to be employed – in other words, to remain as members of the bar even when they work in-house. The Law Society is among this group. And in the other corner are the remaining half who strike lawyers off when they go in-house. The latter say that you cannot be independent if you work in-house, because your employer has too much control over your working conditions. All the arguments have been tried on each side, and failed to budge many minds. That is because the state of independence of any lawyer, whether self-employed or in-house, is not something objective that can be measured. It is more an act of faith on behalf of the bars who either permit or do not permit them to practise. Those who permit in-house practice doubtless know that there are dangers in a lawyer having only one client, whether that client is your employer or another large private client, and they try to manage the risk. Those who do not permit in-house practice doubtless acknowledge the existence of in-house counsel who deliver fearless advice to their employers, even at the risk of being sacked. Yet neither side budges all the same. There is an existing in-house counsel case still awaiting the final decision of the European Court of Justice. That is Akzo Nobel (Joint Cases T-125/03 and T-253/03), on the question of whether in-house counsel should have the benefit of legal professional privilege, or professional secrecy as it is called in much of Europe. The facts arose out of a European Commission raid, and an ensuing dispute as to which documents could be seized or read by the commission. The case is interesting because the lawyer in question was Dutch, and the Dutch Bar already has special rules to guarantee the independence of in-house counsel (who are then subject to professional secrecy): the employer has to sign an undertaking to respect the lawyer’s independence, which is not a step required in the UK. The in-house counsel issue generates much emotion. I have noticed that whenever the identity of lawyers is at stake, the temperature of debate rises – and here it is about independence. So much emotion is generated that, in the case of Akzo Nobel, it attracted a large number of potential interveners in the case. They were not only in-house counsel organisations, but also the International Bar Association, the American Bar Association – and the Law Society itself. That is why I write about this case at an early stage, before its shape and consequences can be easily foretold. All you in-house counsel addicts out there: another case is looming. (And you can find the references to European cases affecting the legal profession here.) Jonathan Goldsmith is the Secretary General of the Council of Bars and Law Societies of Europe (CCBE), which represents over 700,000 European lawyers through its member bars and law societies.last_img read more

Solicitor suspended over 19-year estate delay

first_imgA Suffolk solicitor was suspended from practice last week after taking 19 years to settle a spinster’s estate. Guy Choat, 70, a sole practitioner in Beccles, was barred from practising for three years by the Solicitors Disciplinary Tribunal for what it called an ‘almost grotesque’ delay in winding up the £294,000 estate of Muriel McCarthy, who died in 1992. Two executers of the estate died during the time Choat (pictured) spent dealing with the matter. Choat admitted failing to provide a proper service, acting in a manner likely to diminish confidence in the profession, and failing to deal with his governing body in a prompt and cooperative manner. No allegations of dishonesty were made against him. He told the tribunal his problems began when he realised there was an issue with some of the fine details of the estate, which caused extra work and led to a claim that he had overcharged the estate by £7,000. He said he had struggled to find the £7,000 to pay back to the estate, or the time to settle the accounts. He said he had been beset by family difficulties, ill health and bad luck. ‘I was never in a position to pay that money. Ever since that day, I have laboured to get sufficiently ahead of the game and recalculate the accounts,’ he said. Tribunal chair David Glass said: ‘We do take note of the fact that this is a case of extreme and almost grotesque delay. It is 19 years since the death of the deceased person, and the estate has still not been administered. ‘This sort of delay… cannot be taken lightly. Many promises were given by you over the years and many deadlines were missed.’ The Solicitors Regulation Authority said that Choat closed his practice in September 2010 and another firm has been appointed to deal with his former clients.last_img read more

Insurance

first_img Beazley Underwriting Ltd and ­another v Travelers Companies Incorporated: Queen’s Bench Division, Commercial Court (Mr Justice Christopher Clarke): 17 June 2011 Professional indemnity insurance – Defendant seeking indemnity under deed of insurance The claimants were companies subscribing two policies of primary and excess professional indemnity insurance (the contracts of insurance) to the defendant company. In 1995, M, a group of insurance companies, acquired a firm of insurance brokers that had previously dealt with insurance for the firm SL (the insurance). The original policy excess between the parties was written so as to permit the aggregation of claims arising from a common cause or source. However, when the insurance was renewed for 1995/6, the excess provision was amended so as to read ‘claim and/or claimant’. In May 1997, the defendant sold M to A Ltd. A deed of indemnity relating to the sale was made (the deed), under which the defendant agreed to indemnify A Ltd, M and other companies relating to M and their subsidiaries against any loss, liability, claim or cost arising out of any event occurring prior to the date of completion of the sale. Subsequently, SL received a very large number of small claims, made in relation to mortgage endowment policies. Interpreting the terms of the insurance contract, the court found that SL was unable to make any recovery at all under the terms of its insurance. The court further held that A Ltd was liable in negligence to SL, as it had been aware of SL’s requirement for insurance cover in respect of a large number of such claims and had procured unsuitable cover for it. A Ltd claimed against the defendant under the deed, on the basis that the words ‘claim and/or claimant’ had been added by the lead underwriter in 1995, when it had been well known that SL had required cover for a large number of small claims. A Ltd contended that the negligence involved fell within the deed. The defendant settled A Ltd’s claim and sought an indemnity under the original contracts of insurance subscribed by the claimants. The claimants issued proceedings, submitting that even if A Ltd’s claim under the deed was valid, the contracts of insurance did not respond to the defendant’s claim. Two issues arose, among other things: (i) whether the defendant was liable to A Ltd under the deed, and (ii) whether the defendant’s claim fell within the scope of the contracts of insurance. The court ruled:(1) On the true construction of the deed, it did not deal with recoveries under A Ltd’s insurance, because any claim brought under that insurance would be for A Ltd’s own negligent acts and hence would be outside the ambit of the defendant’s liability under the deed by reason of the indemnity exclusion. A Ltd could be expected to claim on its own insurance in respect of its own negligence. Furthermore, in the event of proceedings for an indemnified claim, the contract expressly permitted the defendant to make a contribution claim on A Ltd (see [147]-[148] of the judgment). The defendant would not be liable to A Ltd under the deed (see [149] of the judgment). (2) On the true construction of the contract, the cover provided by the policy was, as far as relevant, in essence concerned with liability in relation to claims made against M for breach of duty, arising out of and in the course of the actions of the claimants in respect of wrongful acts committed prior to the date of sale by M or any of its employees. It was plain that such a breach had to have been committed by an employee of M, not only because the claim had to be made against an employee of M itself, but because the insuring claim had to be read as a composite whole, so that the claim in respect of the wrongful act had to be one for which M was responsible, and the act had to be committed by someone fitting the description in the contract at the time that it was committed. Furthermore, the insurance provided for events occurring during the 12 months after the date of sale which were related to a wrongful act deemed to have occurred prior to the date of sale, even though related events might occur in the following year. In the present case, the claim was not of that sort, being a claim in respect of A Ltd after the date of sale (see [158], [159] of the contract). The claimants would be entitled to appropriate declarations to the effect that they were not liable to indemnify the defendant under the contracts of insurance (see [195] of the judgment).center_img Dominic Kendrick QC and Josephine Higgs (instructed by Clyde & Co) for the claimants; Sioban Healy QC and Jessica Sutherland (instructed by Freshfields Bruckhaus Deringer) for the defendant.last_img read more

In the saddle

first_imgWith the retirement of Newmarket jockey Phillip Robinson at 50, my mind went back to the bearded solicitor Victor Morley Lawson. He had tried to ride a winner for 30 years until, at the age of 67, he won on Ocean King in the last race – an amateur hurdle – at Warwick. By then, he had retired as a solicitor but rode to work every day on Epsom Downs. A big crowd had stayed to watch him and he was given what The Times called a ‘rousing reception’. Morley Lawson may not have been the best jockey in the race – Nicky Henderson rode the second – but he certainly had the best horse, because Ocean King later won the Cesarewich. I don’t believe he ever rode competitively again. Because of his age, he had already had difficulties getting the stewards to give him a licence. I can’t think of too many other solicitor or even barrister jockeys who rode under rules, although the stipendiary Mick McElligott once told me he had financed his early years at the bar by backing himself to win a point-to-point. ‘I had my man go down the line of bookmakers with a suitcase. Until then I never knew how many fivers you could get in one,’ he recalled. He must have been the only man to make money betting at a point-to-point. One solicitor who did ride under rules was John Carden, who took up riding when he gave up motor racing. He rode in five Grand Nationals, never getting further than the Canal Turn. Tragically, he suffered a ‘hangman’s break’ – the same sort of injury as Christopher Reeve – when his horse fell in an amateur race at Southwell in May 1993. This left him as a ventilated tetraplegic, but he continued working until his retirement in 2003. He died just over a year ago. Pride of place, however, must go to Chester solicitor Billy Dutton, who rode Tipperary Tim (pictured, left) at 100-1 to win the National by a distance in 1928. The story goes that, as he was on the way to the start, a friend called out, ‘Billy boy, you’ll only win if all the others fall’. And that is exactly what happened. My recollection is that Punch printed a mock bill to be presented by him. It included ‘To advising jockey on his parentage after he crossed me at Beecher’s – two guineas.’ I may have the fence and fee wrong. Dutton took up training at Malton and died in 1958. James Morton is a writer and former criminal defence solicitorlast_img read more

Face the facts

first_imgStay at the forefront of thought leadership with news and analysis from award-winning journalists. Enjoy company features, CEO interviews, architectural reviews, technical project know-how and the latest innovations.Limited access to building.co.ukBreaking industry news as it happensBreaking, daily and weekly e-newsletters Subscribe to Building today and you will benefit from:Unlimited access to all stories including expert analysis and comment from industry leadersOur league tables, cost models and economics dataOur online archive of over 10,000 articlesBuilding magazine digital editionsBuilding magazine print editionsPrinted/digital supplementsSubscribe now for unlimited access.View our subscription options and join our community To continue enjoying Building.co.uk, sign up for free guest accessExisting subscriber? LOGIN Get your free guest access  SIGN UP TODAY Subscribe now for unlimited accesslast_img read more

See you, Jimmy

first_imgStay at the forefront of thought leadership with news and analysis from award-winning journalists. Enjoy company features, CEO interviews, architectural reviews, technical project know-how and the latest innovations.Limited access to building.co.ukBreaking industry news as it happensBreaking, daily and weekly e-newsletters To continue enjoying Building.co.uk, sign up for free guest accessExisting subscriber? LOGIN Subscribe now for unlimited access Get your free guest access  SIGN UP TODAY Subscribe to Building today and you will benefit from:Unlimited access to all stories including expert analysis and comment from industry leadersOur league tables, cost models and economics dataOur online archive of over 10,000 articlesBuilding magazine digital editionsBuilding magazine print editionsPrinted/digital supplementsSubscribe now for unlimited access.View our subscription options and join our communitylast_img read more

Hansom

first_imgTo continue enjoying Building.co.uk, sign up for free guest accessExisting subscriber? LOGIN Stay at the forefront of thought leadership with news and analysis from award-winning journalists. Enjoy company features, CEO interviews, architectural reviews, technical project know-how and the latest innovations.Limited access to building.co.ukBreaking industry news as it happensBreaking, daily and weekly e-newsletters Get your free guest access  SIGN UP TODAY Subscribe to Building today and you will benefit from:Unlimited access to all stories including expert analysis and comment from industry leadersOur league tables, cost models and economics dataOur online archive of over 10,000 articlesBuilding magazine digital editionsBuilding magazine print editionsPrinted/digital supplementsSubscribe now for unlimited access.View our subscription options and join our community Subscribe now for unlimited accesslast_img read more

Health and efficiency

first_imgSubscribe to Building today and you will benefit from:Unlimited access to all stories including expert analysis and comment from industry leadersOur league tables, cost models and economics dataOur online archive of over 10,000 articlesBuilding magazine digital editionsBuilding magazine print editionsPrinted/digital supplementsSubscribe now for unlimited access.View our subscription options and join our community To continue enjoying Building.co.uk, sign up for free guest accessExisting subscriber? LOGIN Subscribe now for unlimited access Stay at the forefront of thought leadership with news and analysis from award-winning journalists. Enjoy company features, CEO interviews, architectural reviews, technical project know-how and the latest innovations.Limited access to building.co.ukBreaking industry news as it happensBreaking, daily and weekly e-newsletters Get your free guest access  SIGN UP TODAYlast_img read more

Full marks for construction training

first_imgSubscribe to Building today and you will benefit from:Unlimited access to all stories including expert analysis and comment from industry leadersOur league tables, cost models and economics dataOur online archive of over 10,000 articlesBuilding magazine digital editionsBuilding magazine print editionsPrinted/digital supplementsSubscribe now for unlimited access.View our subscription options and join our community Stay at the forefront of thought leadership with news and analysis from award-winning journalists. Enjoy company features, CEO interviews, architectural reviews, technical project know-how and the latest innovations.Limited access to building.co.ukBreaking industry news as it happensBreaking, daily and weekly e-newsletters Subscribe now for unlimited access To continue enjoying Building.co.uk, sign up for free guest accessExisting subscriber? LOGIN Get your free guest access  SIGN UP TODAYlast_img read more

In the detail

first_imgSubscribe now for unlimited access Get your free guest access  SIGN UP TODAY To continue enjoying Building.co.uk, sign up for free guest accessExisting subscriber? LOGIN Stay at the forefront of thought leadership with news and analysis from award-winning journalists. Enjoy company features, CEO interviews, architectural reviews, technical project know-how and the latest innovations.Limited access to building.co.ukBreaking industry news as it happensBreaking, daily and weekly e-newsletters Subscribe to Building today and you will benefit from:Unlimited access to all stories including expert analysis and comment from industry leadersOur league tables, cost models and economics dataOur online archive of over 10,000 articlesBuilding magazine digital editionsBuilding magazine print editionsPrinted/digital supplementsSubscribe now for unlimited access.View our subscription options and join our communitylast_img read more