Focus on… Bird & Bird
Interview with… Andi Memi, Hoxha, Memi & Hoxha
Which recent change of the legislation has impacted the market noticeably?
Lawyers profession in Albania is currently regulated by law no. 55/2018, entered into force back in 2018. The change of legislation in 2018 did not produce any noticeable effect in the market of legal services, despite it introduced for lawyers certain protection mechanism from non-paying clients such as the provision to consider as an executive title the agreement reached between the lawyer and the client.
Some of the recent changes of legislation that have impacted the market include the new legal framework on strategic investments (law no. 55/2015 on strategic investments and enacted secondary legislation), the new law on tourism no. 93/2015, etc. Recently, on 29 July 2020 the Albanian Parliament approved Law no. 112/2020 for the establishment of a registry for beneficial owners which is expected to impact the market in terms of disclosure requirements for the beneficial owners of the reporting entities.
What does innovation mean to you and how can firms be better at it?
Innovation for me means the delivering of legal services from a more traditional consultative model to a collaborative model, offering integrated solutions. Many clients interface with law firms through their internal legal departments and legal teams should find the right synergies in order to build an efficient and confident professional collaboration.
Another innovative element is represented by the increased use of information technology to enhance the legal services and the tools that enable the firms deliver the most professional and excellent service for the client. Firms can be better in alternating the consultative model with the collaborative model by a more extensive understanding and organization of internal legal teams, support specialization of lawyers and create internal promotion mechanism based on merit criteria. The challenges are complex and would require time and dedication to be completed.
What are the biggest challenges facing firms in the Albanian market ?
The biggest challenges facing firms in the Albanian market are the slowdown of projects that have nourished the demand for legal services for many years due to COVID 19 and regional economic factors, as well as a certain the increase of litigation which has caused the firms to reconsider the focus of legal services and to potentiate the litigation teams. In the recent times, we have witnessed a certain stagnation in the business sector, especially referring to larger projects that in some cases have been put on hold, accompanied with an increased litigation. These new dynamics have impacted also the market of legal services. Firms have reorganized and engaged litigation lawyers to meet the needs of a changing market.
What do you do differently from other Albanian firms?
We offer a holistic approach to client’s needs, where experienced lawyers are almost exclusively dedicated to the client, create an interpersonal relationship with the latter and think of a global approach and advice to client’s business. This approach helps building a strong, efficient and confident support for the client. In practical terms, the firm for the client is not the partners but the lawyers actively assisting and advising him, knowing the client’s needs and history. Junior lawyers join associates that keep the relationship with the client.
The above organization model of the firm offers a more human and personal interface with clients, and shapes an enhanced professional collaboration. On the other hand, juniors are encouraged to increase their expertise and communication with clients in order to be further promoted in directly dealing with client’s needs and legal matters.
Which technological changes have you implemented at your firm to improve the legal services you provide to your clients?
We have implemented a secure intranet, through an internal server, aiming to increase security and protection of sensitive client’s data and documents. Sharing of documents represents another technological aspect that is being implemented and will boost the efficiency of the legal services provided by the firm. Our focus has been on increasing security and protection of our internal system from malware and external intrusion. Increased security protocols govern internet navigation and exchange of files in our internal IT system.
How has the firm developed interpersonal relationships with international players in order to grow cross-border work?
The firm has developed interpersonal relationships with international players in terms of cross-border projects by participating in meetings (virtual due to COVID 19 pandemic situation) and fruitful discussions on several topics. Additionally and as a first approach, interpersonal relationships with international players and advisors has been stimulated through sharing of expertise and knowledge of the market.
We’ve seen recent growth in activity in the country’s tourism sector. Which sectors do you think will provide opportunities for investors in the next two to three years?
Building of luxury resorts and residential complexes is expected to take place in the next 3 years and many investors are switching their focus to developing touristic structures. In addition, the development of tourism infrastructure will require professional services and in parallel, we would probably witness in a request for services that would be complementary to the development of the new touristic structures.
What are the major recent developments impacting doing business in Albania?
In my view, there are no major recent developments that are creating a substantial impact in doing business in Albania.
Between the major recent developments impacting doing business in Albania is worth mentioning:
- An increased focus on tourism investments, including maritime tourism;
- Large infrastructure projects such as the project for the building of Vlora international airport and other main roads under construction;
- Development of renewable energy projects such the photovoltaic park of Karavasta with an investment value of 100 mln Euro, etc.
Recently, the Albanian government has announced the opening of international tender proceedings for the building of a 100 MW photovoltaic park in Spitalle, which may be attractive for energy investors. Tourism, infrastructure and energy are expected to drive and lead the economic growth of Albania in the coming years.
Focus on… Hoxha, Memi & Hoxha
Tintin, beer, and biotech?
If you were asked what Belgium is best known for, you would probably answer with Hergé’s Tintin, football, chocolates, waffles, frites, the creation of the saxophone, and world-beating craft beer brewed by Trappist monks. It is unlikely, however, that you would mention biotech in the same breath as the above.
With most of its activity in this space falling within the health and life sciences sphere, Belgium invests more per capita in biopharmaceutical research and development (R&D) than any other European Union member. In addition, it also ranks highly for biopharmaceutical patent applications, clinical trials, and biopharmaceutical exports per inhabitant. So, in the year of doom and gloom that is 2020, it’s unsurprising that Belgium has been a key player in the fight against the Covid-19 pandemic.
First, some background. An underlying factor behind Belgium’s reputation as a world-class biotech hub is its diverse ecosystem of stakeholders. Noted for its highly skilled (and growing) workforce, the country has a wealth of resources on the research side, including high-quality universities, R&D centres, and other scientific institutes. It is also home to a large number of start-ups and SMEs (who tap into the aforementioned local R&D expertise).
The country’s approach to finance and taxation makes it an attractive locale for emerging pharma and life sciences companies, with support coming from the Belgian government, regional authorities, and the EU. In addition, the strength of biotech companies in creating new products makes them ripe for investment from domestic and foreign investors, particularly venture capital firms.
Away from start-ups and scale-ups, research indicates that native Belgian biotech companies, such as Galapagos and Biocartis, account for 24% of the market capitalisation of public biotech companies across Europe. It is also noteworthy that each of the ten largest biopharmaceutical companies globally have operations in Belgium.
At a time when the race is on to test, develop, and roll out innovative new vaccines, Belgium has been well-placed to lead the charge against Covid-19. At the time of writing, a coronavirus vaccine created by Pfizer and BioNTech is being manufactured in Puurs, Flanders. In addition, Flanders-based Janssen Pharmaceutica (a subsidiary of Johnson & Johnson) is conducting clinical trials of a new vaccine, which is expected to be rolled out in 2021.
So, what have been the key priorities and concerns of Belgium biotech companies (and by extension both their in-house and outside counsel) over the past 12 months? ‘I think maintaining business continuity was foremost on biotech companies’ minds,’ says Catherine Longeval, a life sciences regulatory partner at Van Bael & Bellis. ‘The pandemic disrupted the supply chain. Some manufacturing sites were closed [during the lockdown] so some clients were forced to look for alternative suppliers of active pharmaceutical ingredients (APIs) and raw materials.’
Another priority, explains Longeval, was ensuring patients and hospitals received the medicines they needed: ‘Because of the lockdown measures, at-home care became even more important, so substantial resources were devoted to increasing patient support programmes. As demand for certain medicines grew massively and exceeded supply, difficult decisions had to be taken on how to allocate the available product.’
In-house counsel have also been kept busy in other key areas, including advising on workplace safety measures for staff in offices and factories. Also notable is how companies developing vaccines to combat the novel coronavirus have been busy negotiating advance purchasing agreements with the EU.
As with other industries, technology has played a vital role in helping maintain the day-to-day functioning of biotech companies. As Longeval notes: ‘Interactions between marketing teams and healthcare providers had to be rethought as physical visits were prohibited. Technology has been key in that respect.’
As has been well documented in the legal press, private practice lawyers have also faced challenges this past year. ‘Like all law firms, we have had to adapt to the pandemic’, Longeval says. ‘Physical meetings with clients, in our office, at their office, at conferences, etc were impossible and virtual meetings will likely become the norm even after the pandemic has passed. Therefore, we will have to be creative in how we keep connected to our clients.’
Beyond operational issues, another key question is the extent to which biotech companies of all shapes and sizes have been able to raise finance. Has the pandemic had an impact on investment activity at all? Not at all, according to Michel Bonne, an M&A partner at Van Bael & Bellis.
‘We have noticed strong investment interest and activity across all levels, from seed level to going public,’ he says. ‘There is no doubt the pandemic has increased awareness of the importance of biotech and enhanced visibility of those companies active in this area.
‘Biotech clearly offers tools in our fight against diseases (such as Covid-19) and ageing in a society that is increasingly interdependent and healthy – this presents unique investment opportunities for companies and states. When examined in the context of current investor appetite, promising biotech and e-health companies are not facing difficulties in raising financing. Instead, they are attracting a lot of interest from M&A suitors.’
The long-term outlook for the biotech sector (and the law firms who service it) looks extremely bright. ‘Work-wise, we are confident about the future,’ says Longeval. ‘The pandemic has made a lot of people realise that biotech companies can have a hugely positive impact on our society. Even post-Covid, there will be a lot of work in the life sciences sphere.’
As 2020 draws to a close, let’s raise a glass of Trappist beer to our friends in Belgium who are working hard to make 2021 or a more positive year than the last.
Private equity and the pandemic: What happened and what next?
In the bull market of 2019, private equity funds raised significant sums of money. Prequin, for example, estimated a total of $595bn, with so-called ‘dry powder’ estimated at a total $1.43tn. The latter figure is almost double the unspent capital estimated in 2015, an unsurprising phenomenon given the decline in PE-backed buyout deals during 2019; a total of $393bn in deals closed, down a full $100bn from the previous year. Venture capital deals similarly declined, falling to a combined $224bn compared to $271bn in 2018.
Given the continuing growth of the global economy, particularly in the US, what was the cause of this slowdown? When speaking to private equity practitioners in late 2019 and early 2020, a common refrain echoed: valuations are too high. Many assets were deemed to be overvalued by fund managers, with only growth areas such as healthcare and technology continuing to see increased investments. When asked, most practitioners discussed the possibilities of a recession in 2020, or perhaps early 2021, as the likely solution – reducing valuations and increasing the possibilities for distressed acquisitions and buyouts.
Fast-forwarding to late 2020, these prayers have been answered in an entirely unforeseen fashion. An astonishing economic shrinkage has occurred due to the Covid-19 pandemic has wiped billions of dollars off the value of businesses worldwide. The US economy has shrunk by 33.1% amidst stay-at-home orders and government-mandated business closures, only returning to growth in Q3 2020. The picture in the UK is similar, with a predicted 11% shrinkage across the year. The hospitality and retail sectors have been decimated, with many businesses forced to close indefinitely, while travel and leisure have similarly declined rapidly.
Conversations with London-based private equity lawyers in early summer 2020 revealed how the pandemic has – and has not – impacted the sector, both in terms of fund behaviour, strategy, and future planning. Although partners at major UK and US-headquartered law firms had different perspectives to their mid-market counterparts, the same picture slowly emerged – one of a sector challenged by 2020’s unprecedented events, but making small adjustments rather than wholesale changes to its operations.
Across the market, it became clear that funds briefly ceased active transactions in March, as economies were shuttered, and citizens ordered to stay at home. Portfolios became the priority, with GPs and LPs looking to protect their initial investments and ensure they were not responsible for insolvent assets. As March turned to April, however, funds were keen to continue deals begun in pre-Covid times, with major PE shops such as Kirkland & Ellis, Latham & Watkins, and Weil Gotshal & Manges closing multi-billion-dollar transactions throughout summer 2020.
Transactional partners across the US and UK were keen to point to their clients’ reserves of capital, which having been raised, needed to be spent. Similarly, fund formations across 2020 remained solid, with Blackstone announcing the close of its landmark BCEP II in September, with a total of $8bn raised. After an initial period of reflection, the funds have pressed on with planned investments as well as fresh capital raisings, anticipating a return to something approaching normality in Q1 or Q2 2021.
There have been sectoral impacts, however. Real estate-focused funds have struggled, while transactions in the retail, food, and hospitality industries have dried up. The much-discussed closure of popular London chain EAT by its owner JAB Holdings now seems increasingly prescient, as affected industries are forced to retrench and consolidate.
Emma Danks, head of the private equity team at Taylor Wessing, says: ‘We are certainly seeing an increased focus on deals involving assets that have shown resilience and that are likely to return to a normalised level of earnings fairly quickly post-Covid. This has a lot to do with investors’ desire to realise a return and shake off any hits they may have taken during the worst of the pandemic. Interestingly, this has gone together with a real shift in business models not just for the businesses being acquired but also in the strategy deployed by PE houses themselves.’
Despite these setbacks, the pandemic has not affected the prevailing trends identified in the happier economic times of 2019 – the growth in healthcare, life sciences, and tech-focused investments. With online and technology-based solutions increasingly prized as major businesses switch to home-working, and state-private partnerships working tirelessly to find palliative treatments and vaccines for Covid, it is unsurprising that private equity and venture capital investors alike have sought to acquire these increasingly valued assets, keeping transactional partners busy even as planned deals elsewhere are shelved or abandoned entirely. Venture capital funds in particular have remained active, with tech-focused firms reporting significantly increased new client demand and workloads.
Stephen Rosen, head of private equity in Cooley’s London office, notes: ‘I would expect PE interest in tech investing (and raising of funds specifically targeting tech) to increase even further. We are already seeing increased willingness from PE investors to consider deals on an annual recurring revenue basis; Tech verticals set to capitalise on the macroeconomic trends resulting from Covid (more remote working, less travel, etc.) look particularly well placed.’
What next?
Although initial optimism about a return to normality in Q4 faded given the resurgence of the virus this winter, practitioners anticipate transactional work will continue, with a vaccine and hopeful re-opening of economies due either late in Q1 or early in Q2 2021, funds are expected to retrain their eye on long-term targets, with valuations more to their tastes.
Rosen believes the way deals are done has changed, for the better: ‘Investors, their advisors, and finance providers have now become entirely comfortable originating, negotiating, and executing deals in a remote working environment, which has not ultimately proved as logistically challenging as one might have initially assumed. If anything, transactions, where there is a collective will to move with pace, are closing quicker than ever.’
Additionally, lawyers have been kept busy by non-buyout deals, including debt-backed transactions and Covid-inspired portfolio mergers and consolidations. Private M&A, GP-led restructurings, and secondaries have also continued apace, reflecting a sector adapting effectively to unusual times.
“Companies are going to need capital injections to facilitate these growth projections, for example, to release new products and address any issues in their supply chain,’ argues Danks. ‘This has in turn driven a need for portfolio companies to do bolt-on acquisitions. PE funds may also look at part-funding a deal via a founder’s roll over investment. This is about securing growth capital, but without a majority control position which a full buy-out brings.’
Danks also suggests that ESG as an investment strategy has been bolstered by the events of the pandemic, both for reasons of governance and stability: ‘There is increasing recognition that high ESG scoring companies are viable and often better vehicles for investment. They often have better governance and investors look keenly at integrating investments like this into their sustainability objectives.’
This is echoed by Rosen: ‘We are starting to see funds recognise the dual benefit that ESG investing can bring. Improving financial returns coupled with impactful socio-economic investments are increasingly important criteria for LP’s considering their PE allocation.’
A sector often associated with opportunistic behaviour in times of strife, private equity funds and their legal counsel are instead taking a long-term view, continuing existing strategies while also seeking to protect earlier investments and access newly-crucial sectors of the market along the way.
I will have my cake and eat it
Life in chambers had always been recognised for the gruelling hours spent with the last waking hours left trying to squeeze in some quality family time (for those with families still talking to them). Thankfully those times have evolved – for those wishing to have a better balance.
My chambers has worked hard to ensure that everyone’s needs are met to ensure a happy work-life balance is achieved and to ensure optimum output and retention. This is true of many chambers.
Any working parent will confirm the internal battle they regularly have with themselves when either in chambers or at home – feeling the guilt that they should be in the other place.
Many chambers have formed Equality & Diversity and Wellbeing committees to provide members of chambers and staff with policies that provide the tools to aid a healthy and prosperous working environment and by doing so have reformed the traditional chambers family feel that many had started to believe had deserted us. Husbands, wives, partners, and children now speak of ‘work’ in a welcoming conversation rather than the harsh mutterings of a cheated partner.
Many hours have been spent by committees made up of parents and carers, those without responsibilities to others, both barristers and staff to create policies that are fair to all and allow the flexibility to manage practices as each individual requires. Having been at Temple Garden Chambers approaching 30 years, I have never come across two barristers with exactly the same practice, working hours, personal commitments or long term goals. It is an impossible task to get a ‘one policy fits all’. A balance must always be struck with the interests of those members of chambers who work full time. Chambers must ensure that there is a sole ‘us’, not a ‘them and us’ mentality.
My chambers has created a flexible working policy (including the provision for a career break) along with a parental leave policy which has been warmly received with several members (male and female) gratefully taking up the offer. There is also provision for the more senior members of chambers who are seeking more flexibility in their practices in later years. These policies allow more control over the hours and days worked knowing that you can safely afford to retain your seat in chambers.
For this to work it is essential that the line of communications is always open between the member involved and their clerks. There must be no ambiguity as to the scope of what the member of chambers can do with days, hours, and distance all factors that need to be carefully considered and discussed. It is then imperative that the clerks maximise the potential of the member within these boundaries and keep lines of communication open to ensure neither side are dropping from the parameters set.
Likewise the same flexible approach must be afforded to staff members. The staff handbook has provision for maternity, paternity, adoption, shared paternity, family leave, etc. with the flexibility to continue along the same career path whilst raising a family. Having benefitted from these policies myself for the last 14 years it cements the loyalty from both parties and makes for a happy and steadfast working relationship. It is also greatly appreciated by those at home who talk fondly of Mummy’s work and who are also a part of the ‘Chambers Family’ by baking for chambers tea (in the good old days when we used to be able to gather socially in a conference room in close proximity).
If there is any silver lining to Covid-19 it is that it has brought forward and promoted remote working which has worked well for those with children who now have the capability to do the school/nursery runs before jumping back on the computer ready for their video hearing or conference.
Children and partners of both members and staff interact with chambers for charitable events, quiz nights, work experience, and much more. Who knows whether this will inspire future barristers or clerks but what it certainly does is create an extended family.
In bygone days I had seen barristers leave the Bar unable to see a way to facilitate a working practice that would be compatible to their home life but thankfully those days seem to have passed. In a physical and metaphorical capacity you can indeed have your slice of Battenberg and eat it.
Some clients don’t like negotiating with women
A hot-button topic across the legal profession globally, diversity is one one of the key talking points for researchers at The Legal 500 when conducting interviews.
During my recent stint as a researcher into the Indian legal scene, I raised the issue in a (virtual) all-female roundtable discussion with several senior lawyers at Samvad Partners, a firm that prides itself on, at present, having a leadership comprising 87% female partners across the board.
Conversation drifted from the challenges and positive developments of being a female partner, to ruminations on the legacy of nepotistic and elitist recruitment practices within the profession.
I begin by asking whether the decision-making process at Samvad is as democratic as the figures suggest, with all partners getting a say? ‘One thing that is unique to us is that all of our partners are signatories to the partnership deed, making it a true all-equity partnership deal,’ states Neela Badami, whose corporate practice is based out of Bengaluru.
New Delhi-based Ashwini Vittalachar adds: ‘When it comes to actual decision making, we are fairly democratic. While the founding partners take overall decisions, critical issues are opened up across the partnership.’
Vineetha MG, a leading corporate partner in the Mumbai office, says: ‘If you look back a decade, it would be primarily male partners controlling big decisions, but there has definitely been a cultural shift.’
According to Badami, this arrangement is uncommon within the Indian legal market, adding, ‘we want to do things by international standards’.
Which begs the question: In what ways is Indian partnership not comparable to international standards? In MG’s view: ‘If you look at how traditionally firms have come up in India, they have always had a family-run or individual-centric model. There are very few firms that are truly professional. You could say we are outliers, though there are a number of firms following the international, professional model.’
Does this nepotistic culture negatively impact gender representation in the legal market? Not so much, according to Badami: ‘I can tell you empirically, even the family-run firms are trying to make a push to make themselves gender diverse, but the important question is, does this filter through to the avenues of power?’
‘I would say that this issue is equally true for men and women,’ adds Vittalachar. ‘A significant element of power still holds in the family or individual element, and to that extent the issue is gender neutral’.
‘Most firms are neutral with hiring,’ offers MG. ‘A lot of the hurdles are cultural, not professional.’
Vittalachar continues: ‘Workplace culture plays an important role in enabling as well as retaining a young lawyer, especially a woman lawyer. At Samvad, we encourage all the lawyers to use technology to stay connected and ensure seamlessness in client deliveries.
‘This culture of trust and transparency has to a large extent removed unhealthy workplace practices, fostered a positive and collaborative work environment and has enabled retention.
‘This also meant that women associates were able to progress in their careers and grow into leadership roles despite having to balance both work and the needs of a young family. We believe this inclusive workplace culture has translated into a women-dominated leadership in the firm’.
Is the number of women aspiring to careers in law on the rise? ‘The number of women [law] students has definitely increased over the years, but the system has many areas that can improve,’ says Vittalachar. ‘It’s a larger philosophical question of making students more ready for the profession, and is not confined to the issue of gender diversity.’
Badami agrees: ‘Students are aware of the gap between theory and practice. Students are happy to take up practice-oriented courses, they love that kind of thing.
‘Personally speaking, this is something that I enjoy helping with, and in fact, many of our partners do take up practice oriented-courses at various prestigious law schools. Students tend to produce questions that professionals such as us never would have thought to ask!’
Are the recruitment practices in Indian law firms still considered to be ‘elitist’? ‘We have consciously broadened the recruitment net,’says MG. ‘We now recruit across the country and have found the quality has been equal across the board. The market trend in general is to broaden the net.’
‘What we have seen is an openness to having interns across the country irrespective of the grading of the school, as long as the person can demonstrate dedication and a hunger for learning,’ adds Vittalachar.
‘Our firm has been able to convert these internships into genuine recruitment, even if they have come from lesser respected schools.
‘What we also see is that non-elite students work harder; their approach to the profession is a lot better because they really want to excel. I feel we have been a progressive firm on this front.’
MG adds: ’One distinction is that, while we work in a commercial firm, there are a lot of issues on the litigation front. In fact, I personally wanted to pursue litigation as a practice, but I settled with corporate practice as it was easier for my career.’
‘It’s an accepted reality that litigation lawyers find it more difficult,’ states Badami. ‘Flexible working arrangements are better suited to the corporate arena, and a lot of talented female litigators do find it difficult to progress, though the more senior you become, the better you learn to juggle multiple balls in the air!’
‘A lot of the time, the attitude of the judges or opposing counsel is as if they want to know who the senior is. There is still that bias!’ says MG.
Badami adds: ‘One interesting side effect of Covid-19, however, has been the acceleration of the adoption of technology by courts, with video conferencing becoming an important tool. This may help women continue to stay the litigating course – time will tell!’
That is not to say that women practicing corporate law are immune from the biases faced by their litigator counterparts. ‘We have that in the corporate environment too,’ MG says. ‘When we go to conferences, we make sure to wear a saree to show that we are the seniors in the room. Once they see us working, they get the point, but it does take time.
‘Sometimes clients from particularly traditional backgrounds don’t like negotiating with women, they won’t be looking at you. This may happen for a few meetings, then there is a shift; the ice breaks.’
‘The saree is the best kept secret!’ laughs Badami. ‘It’s interpreted by some to indicate a sign of maturity.’
Nevertheless, there is clearly still work to be done, as Vittalachar explains that her team often contains the only women at the negotiating table on major deals.
Reflecting on the changes to the legal profession she has witnessed over the years, MG summarises: ‘Economic background is still a challenge, but we have sponsorships and we have organisations like IDIA* working with law schools to address this issue. The legal profession is not considered a second best to medicine or engineering any more.
‘Cultural improvement is still something we have to catch up on, but that will happen; India is not bad on this front compared to other countries across Asia.’
*The Increasing Diversity by Increasing Access (IDIA) non-profit organisation works with underprivileged children to them access to quality legal education
Covid-19 and exam chaos: How chambers can help the next generation
To say that aspiring barristers have had a hard time of it in 2020 would be something of an understatement. The Covid-19 virus has led to some financially hit chambers – some struggling even before to the pandemic hit – pausing their pupillage intakes for this year and, potentially, even next year, too.
The government’s mishandling of students’ A-level grades led to an approximately 40% of final results being downgraded after the exams regulator used an algorithm to determine grades based on schools’ previous years’ results. This has resulted in some law students, including those from state schools, failing to obtaining places in their preferred universities.
Law graduates haven’t got off lightly in 2020 either. The recent BPTC exam chaos saw Bar students unable to access their online assessments or even go to the toilet if they were taking their tests remotely rather than in an assessment centre.
All in all, 2020 has been the perfect storm for the Bar’s next generation of advocates, with the impact likely to be be felt for years to come. The impact may be especially acute for those from ‘non-traditional’ backgrounds. So just how are chambers reacting to the impact of the pandemic and various exam debacles on their recruitment of future talent, especially when so many sets are trying to improve the diversity of their member?
To answer this question, fivehundred spoke with representatives from the publicly-funded and commercial Bars to ascertain how sets are adapting their pupillage assessment and recruitment policies and also provide some top tips on obtaining pupillage in the months and years ahead.
Genevieve Reed, Red Lion Chambers
Access to this profession can seem prohibitively expensive to many and although being self-employed has its benefits it can also feel financially precarious and uncertain. This has always been the case, but the current pandemic has put those issues under the microscope. There was already a concern that the pandemic would negatively affect access to the profession but the current BPTC and A-level debacles will have further compounded those issues. It is no coincidence that there was a rise in applications for teacher training this summer, as young people look for a stable profession.
Aspiring barristers already do so much in preparation for their pupillage applications and there is no reason why their chances of obtaining pupillage should be negatively impacted by the current issues. The real concern is that the pandemic and exam debacle will deter good candidates and further erode access to the profession. The onus is on us to ensure that this does not happen. As a profession we have done some recent introspection about the lack of diversity in our profession and what we can do to change this but we need to double our efforts to counteract the effects of the most recent issues.
Chambers can look at their recruitment policies and consider whether, for example, it is necessary to require candidates to supply their A-level results.
My chambers no longer ask for A-level results on pupillage applications. It was a small change but made a big difference to our paper sift and helped us to interview a more representative pool of candidates. We also have an extenuating circumstances box on every form which candidates can use to explain why they have not, for example, achieved a particular mark in an assessment. This could be used by candidates who, in the years to come, want to explain their BPTC results or other associated issues.
This goes someway to assisting those negatively affected by the pandemic and the A-level and BPTC debacle, but this is not enough, and we need to continue to find creative ways to support aspiring barristers access the profession.
My chambers are in the process of organising a virtual seminar on pupillage applications. This will be open to anyone who wishes to join, and its aim is to assist aspiring barristers with tips and tricks for their applications and the interview process. It is an attempt to demystify the process and create a more level playing field for candidates. This will, we hope, help to improve access to the profession.
To aspiring barristers: it sounds trite to say but this is a very supportive profession. Many barristers have already been actively involved in challenging the poor conditions and other issues facing BPTC students with their online assessments.
If you ask for help, you will always find at least one barrister who will offer their support and guidance: contact one of the Inns of Court who can match you with a mentor or reach out on Twitter, you will be surprised at the amount of support you will get.
Lots of chambers are running online events now which allows more people to attend and engage and learn. These are good opportunities to get an insight into chambers ahead of any applications.
Sanaz Saifolahi, Goldsmith Chambers
I am a tenant at Goldsmith Chambers and I specialise in immigration, asylum, and human rights law. The pandemic has had a severe effect on the justice system. Financial pressures and court closures have had a significant impact upon chambers, the Bar and, as a consequence, on the future of the Bar; those hoping to secure pupillage. I have, therefore, put together my top tips for applicants aiming to secure pupillage:
Check in with your mindset: Work ethic
Work hard academically and supplement your academic success with work experience; whether it is unpaid, voluntary work, internships, work within a solicitors’ firm, paralegal work, mini-pupillages, marshalling or other jobs/paid work that you can use to demonstrate that you have a ‘can-do’ attitude and leadership skills. All of this experience can help develop your confidence and stamina. Your experience is valid no matter how limited you may think it is. Value it. There is bound to be something within a role that enhanced your communication, leadership, and social skills.
Some opportunities will be dramatically reduced due to the pandemic. Use your research skills base to check what is being offered via home working/remote means.
Confidence, determination, persistence, and self care
Aside from being incredibly rewarding and, in my opinion, the best job that there is, this career is very demanding and is very hard work. Obtaining pupillage is the start of this journey. You may need a few tries before you obtain pupillage. I had one pupillage offer out of 12 applications. Try to keep going and fill in any gaps in time with more work experience. There is no rush: the additional skills that you acquire will help you in the future and experience is normally always a good thing. Your time will come. Be determined, be confident, and keep going. Look after yourself along the way. Your wellbeing is central.
Network, be social, and try to keep developing your communication skills
The Inns offer a lot of socials and events where you can meet barristers and enter competitions and there are various debating and mooting opportunities. Join a relevant committee focusing on an area of law you are interested in, for example the Bar Human Rights Committee is open to law students. Some universities offer mentoring schemes. If they don’t, why don’t you set one up? I am a mentor for the University of Warwick Bar Society.
These schemes and events can be helpful as a means of inspiring you and offering you guidance. In addition, these events can offer you an opportunity to work on your communication skills. Some events are still taking place via remote means at the moment. Take the opportunities you find and if you don’t find them create them for yourself and others.
As far as you can, surround yourself with those who inspire you, believe in you, and nourish your dreams
Positivity creates positivity. But most of all, believe in yourself, who you are, and what you can do and offer.
Rosalind Phelps QC, Fountain Court Chambers
Securing a pupillage is as fiercely competitive as ever. But many of the top sets, including Fountain Court, are acutely conscious of the need to ensure diversity among new tenants and are therefore taking steps to broaden the pool of potential applicants. This includes the new Mentoring Scheme for Underrepresented Groups at the Commercial Bar, an exciting new programme in which those interested in a career as a commercial barrister are paired with an individual mentor at a commercial set. Fountain Court will also be participating in Bridging the Bar, another mentoring scheme set up by a new charity to encourage greater diversity across the bar.
One of the important qualities we look for in a prospective pupillage applicant is an understanding of, and interest in, our work. We understand that those without existing connections in the law may well have had less opportunity than others to build up this sort of knowledge base. That is why arrangements such as the mentoring schemes are so important in levelling the playing field for future applicants.
My advice to anyone considering becoming a commercial barrister is to take advantage of mentoring and mini-pupillage schemes in order to better understand what commercial law really involves. That can only improve the credibility of any subsequent pupillage application but, just as importantly, it will give you sense of what work you might enjoy doing in the future.
2020 has of course been a very disrupted year for A-level and GCSE exam results. We have yet to see quite how this disruption will play out but I currently do not expect that we will need to change our pupillage selection criteria. Chambers requires evidence of academic and intellectual ability but we tend to look to university examination results rather than A-levels or GCSEs in the first instance.
Almost all of our successful applicants are able to demonstrate that they have achieved first class results at some stage of their university career; below par A-level results in 2020 are most unlikely to hamper a candidate who is otherwise able to meet this standard.
Paul Fisher, 4 New Square
As a barrister from what might be regarded as a non-traditional background, I can personally vouch for and am proud of the fact that at 4 New Square our objective is to recruit the best talent regardless of background and with an acute focus on merit. I was educated at a comprehensive school in South Wales and had no one in my family with experience of the legal profession. Much like my colleagues, I am very aware of the need for the commercial Bar to do more to reach out to future talent by breaking down some of the barriers to entry (perceived or real) in our profession.
If your starting point when considering the commercial Bar is to say to yourself ‘I don’t “look” like a barrister’, then you need to think again. The phrase ‘non-traditional background’ is somewhat misleading, in my opinion. The commercial Bar is changing at pace and ‘traditions’ are fast being disrupted – which is a good thing. There is no single ‘type’ of individual that renders them ideal for our kind of work. Successful barristers come in all shapes and sizes, from all sorts of backgrounds.
At 4 New Square, our recruitment committee is focused on doing all it can to improve social mobility at the Bar at all stages of a potential tenant’s decision-making, from school right through to pupillage.
Firstly, before a potential applicant even applies to chambers, we are supporting a number of social mobility schemes that seek to provide greater insight into work at the commercial Bar for those from ‘non-traditional’ backgrounds. These include the Bar Placement Week, Inner Temple Pegasus Access Scheme, and Oxford Pathways to Law.
Secondly, chambers is keen to ensure that students have the opportunity to undertake quality work experience with our barristers despite the obstacles 2020 has created. Since the onset of Covid-19, we have provided a number of two-day remote mini-pupillages which allow those interested in the Bar and our work to speak with members of chambers and to undertake work on real cases. This way students can get a taste of what life is like at the Bar despite the current circumstances and make sure that they get those all-important mini-pupillages down on their future applications.
Chambers is also a founding member of Bridging the Bar, which seeks to provide future talent from a diverse range of backgrounds with experience of the profession, particularly through mini pupillages. It is exactly this sort of contact with the profession that helps to improve access: giving potential candidates from a diverse range of backgrounds the opportunity to envisage what their working day will be like, in the absence of family networks in the law. We are also keen to promote our pupillage podcasts which are designed specifically for the purpose of making our profession more accessible to those without family contacts or prior networks in legal London.
Thirdly, we want to make sure that when students apply to us we are effectively identifying future practitioners through our application process. Chambers uses the Rare contextual recruitment system, which allows us to see students’ achievements in context by using various indices so that at the recruitment stage we do not overlook the particular quality of an applicants’ achievements when set in the context of their specific circumstances. Rare have also recently added a feature that flags any A-level, GCSE, or university results that may have been impacted by Covid. In addition, to make sure that it is not focusing too much on CVs, chambers undertakes a blind written assessment on top of interviews, which consists of a piece of work that does not require any pre-existing legal knowledge.
Finally, once a student finds themselves in the position of obtaining pupillage with us, we continue our general approach which is to ensure flexibility and fairness having regard to the specific circumstances of the pupil. Chambers is particularly concerned to ensure that wellbeing of all members, including our pupils, is given proper attention. We are also very keen to make sure that new pupils are introduced to the modern Bar, which is absolutely committed to adjusting to childcare and caring responsibilities and we will provide adjustments to assessment processes where that is required.
Obviously, we have had to respond to events since March by ensuring that remote working is facilitated, giving each pupil support with IT set-up, resourcing and regular video reviews/meetings with clerks and members of chambers. The key thing for any potential applicant is to know that support is there. Life at the Bar is demanding, but the support networks exist to reach down and give you a helping hand if and when you need it.
In short, 4 New Square invests a great deal of time considering how best to advance social mobility at the commercial Bar because we want to recruit the best and brightest regardless of background. In any event, diversity and social mobility will only help to promote the wider objectives of our profession: objectives that we are absolutely committed to playing our part in fulfilling.
You can learn more about social mobility at the Bar at The Legal 500 Podcast
Milestones in criminal law
How has the criminal law of England and Wales evolved during the last 20 years? It is an especially pertinent question for me as the firm that I helped to found, Corker Binning, opened for business in October 2000. Coincidentally the same day as the Human Rights Act 1998 was implemented. This event was considered then by many as a legal watershed; that making the jurisprudence of the European Court of Human Rights admissible in all UK legal proceedings would effect sweeping change to especially the common law by “bringing rights home”. Hindsight, however, has refuted such heady expectations. Insofar as our criminal law is concerned it is insignificant. I would not include it in a pantheon of legal milestones of the last twenty years.
What have been the most significant changes during this period? Without reservation, I would award my first place to the Criminal Justice Act 2003. This effected a revolutionary break with the pre-existing common law concerning the law of evidence. The slogan it proclaimed was “Let the jury decide!” and consistent with this goal it either abolished or diluted an array of restrictions that inhibited the admissibility of hearsay and bad character material in a criminal trial. The Act enabled especially the prosecution to invite the jury to determine the defendant’s guilt from a far wider range of “secondary” facts. Facts previously deemed inadmissible either for fear that a jury would attach more weight to them than it ought or because they were deemed to unfairly prejudice the accused.
Ironically whilst one part of the Act held that juries should be trusted more to evaluate complex evidence rationally, another part of it introduced a procedure whereby a jury’s acquittal can be quashed and the accused retried for the same offence. The law concerning double jeopardy was thus reformed. The killers of Stephen Lawrence were amongst the first accused to stand trial for his murder, a legal possibility despite their earlier acquittal.
The second most important change also occurred in the first quartile of my set period. Another statute, the Proceeds of Crime Act 2002. It merits second place notwithstanding that it has been the subject of subsequent multiple revision, most notably by the Criminal Finances Act 2017. The 2002 Act matters because it began the development of a panoply of laws now collectively known as civil recovery. These all concern the ability of the State to bypass criminal law whilst still accusing a person of serious criminality. If the State’s case is upheld it results in the forfeiture of the target’s property and their stigmatisation as a criminal.
Criminal law has thus lurched in a civil direction. No need any longer for trial and conviction, the process is presented as purely civil litigation in name although it is criminal in substance. The latest expansion of this jurisdiction is the unexplained wealth order where the target of such is required to divulge their source of wealth in order to avoid its expropriation on the ground that somehow it must have been obtained by criminal conduct.
This Act has in regard to financial crime correspondingly changed the priorities of the UK’s criminal law enforcement agencies. In their battle against serious and organised crime, the official measure of their effectiveness has subtly shifted from a conviction rate and consequent terms of imprisonment to how many criminal plots were disrupted before they hatched and the value of assets seized via the civil recovery route.
Third place goes to a 2017 judgment of the Supreme Court. Despite its high significance, there was only one speech delivered in that case, by Lord Hughes, with which all the other members of the court concurred. Dishonesty is an element of most acquisitive criminal offences and it is the foundation of the law of both criminal and civil fraud. Whilst it is probably the most important legal concept in our criminal law it has never been defined by a statute.
In Ivey v Genting Casinos its definition or more strictly, what needs to be proved to establish a claim that a person acted dishonestly was recast. The second of the two tests as to what constitutes dishonesty, near-universally applied by trial judges since the early 1980s was jettisoned. Most subsequent criminal trials have been affected by this judgment, the law of dishonesty now being consistent across criminal and civil cases with no room for the defendant’s subjective judgment of whether his conduct was dishonest.
My headline prediction for the next twenty years is that jury trial will be emasculated under the cover of the pandemic leading to trial without juries in complex fraud cases.