Peninsulawyer blog - Peninsulawyer blog

Entries in law (12)

Friday

Jun042010

Other iPad lawyers

Friday, June 4, 2010 at 2:19PM

As well as writing about my own experiences of the iPad, I have also been keeping an eye on what others have been blogging about its suitability for lawyers. A quick roundup of the highlights so far:

Jason Plant has changed tack slightly on his No Option for Law Firm blog with a post entitled Stop printing your emails… the iPad's a game changer. Using Adobe Acrobat to turn his email inbox into a PDF folder for viewing on the iPad is a pretty creative idea - although I won't be able to try it without investing a hefty sum for Acrobat 9.

@ljanstis (a new Twitter followee of mine) has also shared his experiences in the iPad and legal practice on his Work Life Law blog, which highlights some interesting drawbacks and benefits. Apparently the most was inspired by an earlier piece by @neildenny on Lawyer1point9. and my own (much less eloquent) ramblings.

Finally, I also stumbled on a higher profile review in The Times by the eminent legal expert Richard Susskind (will lawyers find the iPad useful?). This was probably the least useful contribution and would have been a lot more relevant if it had been written by someone using the iPad in legal practice. For example, anyone who has followed my posts will see that using Pages to edit legal documents (as Susskind suggests) is pretty much a non-starter. Unfortunately, the moderators obviously didn't agree with me and my comment to this effect has ended up on the Times moderating room floor.

I'm sure there are other UK lawyers blogging on the subject so if you know of any then please give me a shout so I can include them!

1 Comment

Email Article in

iPad Lawyer tagged

blogging,

iPad,

law,

technology

Monday

Apr262010

Social media law part one

Monday, April 26, 2010 at 7:47PM

What is social media law?

Many lawyers argue that there is no such thing. Other than specific legislation (like the Electronic Commerce Directive) the same laws of copyright, contract, defamation etc. apply to the Internet as in real life.

However, this depends on how you view social media. Is it simply a development of Internet technology? Or is it a paradigm shift, a completely new type of interaction which will eventually drive the evolution of a body of "social media law"?

I'm not saying which side I fall on quite yet, but this is the first of a series of posts in which I am going to look at how the law is adapting to social media.

Rather than writing about abstract theories, I will be looking at the ways my day to day practice is changing to incorporate social media and Web 2.0. In the last post I will round up with my views on how the law is likely to develop (and maybe even answer the paradigm shift question).

To start with, I am looking at something fairly simple: what I call the "social network clause".

This could be used in all kinds of commercial agreements, but a good example is franchise agreements.

Take a situation where you operate a chain of restaurants under the Taco Cottage brand and you want to expand into different cities by granting franchises to new operators.

As well as the usual provisions in your franchise agreement, it might be sensible to include a "social network clause" to set out how your franchisees are allowed (or encouraged!) to use social media to promote their Taco Cottage franchise businesses. This will be different in each case, but some basic things to think about are:-

Is the franchisee entitled to create and operate Twitter accounts, Facebook pages etc. using the franchise business name? Are you happy to see Taco Cottage Wolverhampton and Taco Cottage Shrewsbury on Twitter or do you want Twitter users to engage with your own @TacoCottage account?
Alternatively, should franchisees be obliged to use social media to promote their franchise business? If so, should they be required to feed back details of any successful initiatives to the franchisor for use by other franchisees?
Who will "own" these accounts and how will copyright in the updates and content provided be dealt with? (the Law Donut blog has an interesting post on the implications of this for employers, but similar issues apply in this kind of situation).
What social media policies should franchisees have in place for their employees?
What happens if the franchise is terminated (or sold)? Is there a provision for the social networking accounts to be transferred to a new operator or owner? (By the way, there are real practical issues with this if the login details are held by a franchisee... maybe a service like Hootsuite which allows team collaboration on your Twitter account, but under your control, would be useful).

Franchises are an obvious example, but the concept is just as relevant to dealerships and distributorships, operators of concessions in shopping malls and any other agreement where one party is promoting a business using elements of the other party's intellectual property rights and goodwill.

I have incorporated something like this into a number of contracts recently and I would suggest it to any client entering into this type of agreement.

Of course, if you are the client, and you are having this kind of agreement drafted, then ask your lawyer about including a suitable clause... if they look at you blankly then feel free to point them in the direction of this blog!

Coming up next time around:- social media in mergers and acquisitions.

3 Comments

Email Article in

Social Media Law tagged

contracts,

franchising,

law,

social media

Tuesday

Apr132010

Is law a creative profession?

Tuesday, April 13, 2010 at 7:37PM

A combination of two things inspired me to ask the question.

Jay Shepherd started me thinking about it by asking whether lawyers are artists or labourers. His post started me thinking about creativity, but it isn't actually about that, but about whether lawyers should be paid by the hour for their labour, or whether like artists they should "get paid by the result — by their creation".

The concept floated around in my mind until a few days later, when I was re-reading Stephen King's On Writing - a memoir of the craft.

Available on Amazon here, this is King's book about his "day job":- language and writing. I like Stephen King's writing so I was an easy sell for this book. I am fascinated by his description of the writing process, but I also think it is a useful little style guide for any writer.

This is the third time I have read it, but the first since I started writing this blog. It struck me that most of his guidelines are relevant to bloggers.

"Omit needless words" (taken from The Elements of Style) is a good starting point, but follow that up with:

"If you want to be a writer [or blogger], you must do two things... read a lot and write a lot."

I don't know if King would look down on bloggers (I hope not, but On Writing is a great resource for them regardless), but my own view is that blogging can be classed as creative writing.

Wikipedia defines creative writing as that which "goes outside the bounds of normal professional, journalistic, academic, and technical forms of literature...".

Some legal blogging is basically professional literature, but the more interesting blogs I read definitely meet this test:- they step outside this to play with ideas, concepts and language in a way that a law firm press release or legal update would not.

More importantly to me it just feels like a creative process in the way which drafting a Share Purchase Agreement (for example) doesn't. It's hard to say why this is. My gut feeling is that despite the absence of plot and characters you are still pulling together strands of an idea from somewhere and communicating it to your audience as best you can.

One thing I have learned is that being an expert in legal drafting does not help your creative writing. There is a lot of legal drafting and writing out there which is just plain bad, but even the good stuff tends to be focused on precision, certainty and avoiding risk rather than any kind of style. Not that this is a bad thing (this is what we are getting paid for), but it doesn't encourage creativity and it can make it hard to switch gears and write in another style.

I wonder if this is why lawyers (or some of them at least) seem to be such enthusiastic bloggers... it gives us an outlet to write more creatively without having to worry about how our language will be interpreted by a Court?

I would love to hear from some other legal bloggers on this.

Is this kind of creative freedom a factor for you, or is your blog just another aspect of your marketing? Or do you think that law is a creative profession already... that drafting that perfect clause or finding an elegant solution to a client's problem is quite satisfying enough?

Email Article in

blawging tagged

law,

Wednesday

Mar312010

UKBlawgRoundup Easter 2010

Wednesday, March 31, 2010 at 11:59AM

Welcome to the second edition of UKBlawgRoundup.

The theme of the roundup is "new beginnings". Given the season, you might expect the usual Easter cliches, but instead I have for you a fine crop of newly hatched legal blogging projects from around the UK. The only gambolling lamb is this rather tasty looking Czech sweet pastry one.

Easter lamb image copyright Chmee2

Where you live, the first sign of spring may be the emerging snowdrops or birdsong on a cold, crisp morning.

Wirral Egg Run 2010 by Jon BloorRound here it is the tell-tale haze of high grade mineral oil and the creaking of leather, which heralds the annual Wirral Egg Run. As ten thousand plus bikers polish their helmets and dust off their bunny outfits ready to ride across the Wirral peninsula and deliver a mountain of Easter Eggs to the children at Clatterbridge Hospital we know that winter is over and spring is on the way.

So, as the first daffodils begin to bloom outside, how have the UK's legal bloggers been keeping their typing fingers warm in the long, cold months since Michael Scutt's inaugural roundup was published at the beginning of this year?

Paul Hajek has been analysing Tesco's new venture into estate agency, iSold, on the Clutton Cox Blog in a smooth full bodied post, with a rounded finish and a trademark hint of acidity:- Wake up and smell the Tesco coffee.

Paul also represented UK blawgers in a fascinating Twitter interview with 22Tweets where he revealed amongst other things that he has "been an oppressed minority virtually all his life" (including, most recently as a sole practitioner solicitor!). The transcript of Paul's interview can be found here. Having been interviewed for 22Tweets myself I can thoroughly recommend it if you get the chance.

Neil Denny also picked up the iSold story on his Lawyer1point9 blog in a post which gave rise to an impressive amount of debate (46 comments at the time of writing). Does iSold mean that supermarkets could make a success of Tesco law or is it another false start? You will need to read the post to find out, but Neil's conclusion to From Tesco Estate Agency to Tesco Law is a warning to solicitors:

"the future is coming. Please try to stay awake while it happens"

Jon Busby also waded into the fray on his new and revamped Legal 2.0 blog and poured a little cold water on the fires of the Tesco Law panic... he doesn't believe that "the ROI is there yet for a major invest, and certainly not in-house" and that solicitors may not need to be measured up for their blue and white uniforms for a year or two yet.

Jon's blog is always an interesting read with some "horse's mouth" views on what the big brands might actually roll out come 2011. Whether or not you agree with him, his blog is certainly looking very tasty following its redesign!

Finally, and closer to home, the Liverpool Law Society blog looks at how the big brands might feel about referral fees once the Legal Services Act 2007 allows them to fully enter the legal market: "Won't they see the buying of work as part of the normal world of business?".

I'm sure there will be a lot more Tesco law debate to come over the next couple of years, but for now I will trundle the wonky wheeled Peninsulawyer trolley onwards and look at some other blawgs.

Darren Sylvester of Interalialegal drew my attention to another new development:- the introduction of English language tests for Bar School applicants. As a simple solicitor I was surprised to hear that prospective barristers turn up at bar school unable to "speak fluently", but apparently the Bar Standards Board have found that this is a real issue. Read his post (assuming you are not a student barrister without the necessary language skills...) to find out why.

You can't get much fresher than the first post on a brand new blog, which is what Michael Scutt has kindly provided just in time for this roundup. His new blog on UK legal services deregulation There May be Trouble Ahead... kicks of with a post titled Lets Face the Music and Dance asks the question

"who would want to buy into a law firm?"

This is one of best kind of posts: those which ask some intelligent questions, but leaves the answers open for discussion rather than reaching a glib conclusion. If you have views on what would attract investors to a law firm then this is the place to join in the debate. Michael's Jobsworth blog is still alive and kicking too...asking whether fit notes are "fit for purpose".

External investment in law firms is a hot topic with other UK blawgers too, and I'm guessing it will remain so in the run up to implementation of the Legal Services Act 2007.

You can rely on James Dunning to provide a fresh perspective on issues like this on his An Inside Take from the Outside blog. James's recent post looks at what partners and firms might lose by listing on the stock market or raising external investment (spoiler alert: you sell your business the moment you invite in external investors looking for a return). The comparison with the Kraft takeover of Cadbury is very apt - as is the title of the post: Sacrificing Legacies.

Shifting from law firms to in-house counsel and another new beginning: Melanie Hatton's new In-House Lawyer blog. Melanie is blogging to "share my experiences and nuggets of wisdom as an in-house lawyer". She has been doing a great job so far, covering subjects from a run down of the legal challenges facing Google to 5 Best Practice Twitter Tips for In-House Counsel. If you interested in an in-house lawyer's perspective in 2010 then add this blog to your RSS feeds.

Ask Andrew Murray and he will tell you that new doesn't always equal good. His recent The IT Lawyer post on the Digital Economy Bill entitled Intimidating; Anti-Business and Unlawful lives up to its title with a scathing attack on "the digital economy bill for dark ages". Andrew asks how alleged infringers will be able to prove their innocence (as they may have to do if the bill becomes law) and how can possibly comply with article 6 of the European Convention on Human Rights.

Peninsulawyer note:- For what it's worth I wholeheartedly agree; if you haven't already done so please consider contacting your MP using the excellent 38 Degrees service to push for a proper debate on the bill.

Clarinette's blog has also been looking at copyright legislation and internet privacy with a comprehensive roundup of her travels around the UK attending events like the IPKat Google Adwards Trademarks Seminar and the Counter 2010 Conference in Manchester. Take a look at her What a Week! A weak copyright! post for the full itinerary.

Easter Daffodil - Jon BloorLinda Cheung has been stealing my thunder on the Connectegrity Blog by posting her own Spring roundup of interesting web nuggets. I particularly like the fact that Proctor & Gamble are instituting a bring your laptop to work scheme as their younger employees would rather use their own technology... if only I could ditch the Dell and use my Mac in the office!

Earlier in the year, Connectegrity also posted the notes of an interesting conference call between US social media guru Adrian Dayton and two of our home grown stars, Brian Inkster and Chris Sherliker. The transcript of the how UK Lawyers are using social media call is here if you missed it the first time around.

Over at Ramblings of a Scottish Student, there is a new beginning for Oliver Smith who has negotiated the Byzantine workings of the scarily named "deviant timetable committee" to get back to university and knock two years off the time to graduate from his law degree. Exciting news indeed!

Few new projects compare with starting a new book, which is what Shireen Smith at Azrights' IP Brands Blog is doing. After looking at various options for publication of "The New Rules of Brand Protection" Shireen has decided

"to write my book by blogging it gradually"

This will be an interesting project to keep track of over the next year or so as Shireen will be taking advantage of the blogging format to "invite other lawyers, brand owners, writers, bloggers, interested individuals, anyone to follow along, and to contribute to the process".

Tessa Shepperson also has a new project on her Landlord Law Blog looking at the urban myths which surround the landlord and tenant relationship. Depending on whether you are a landlord or a tenant you may or may not be happy to find out that landlords are not entitled to go in and take a tenant's possessions if they are in rent arrears.

If you rent out a room (rather than a whole house) Tessa's other Lodgerlandlord blog has some useful tips on how to get rid of deal with problem lodgers. Personally I have always favoured the PassiveAggressiveNotes approach, but each to their own!

I always try to keep up with CharonQC's blog (which can be hard as he is probably the most prolific writer on my blogroll), and I was interested to see that he is laying waste to his surplus social media accounts. New social media services seem to spring up every other day and I wonder whether this "paring down" to the most relevant (Twitter and the blog were the only ones granted a stay of execution by CharonQC) will become a growing trend? On the subject of Easter posts... look out for CharonQC's annual Urbi et Orbi Easter proclamation next weekend, which should be an entertaining read.

Somebody else keen on terminating technology with extreme prejudice is Jason Plant at No Option for Law Firm. This time email is in the firing line for the performance and storage issues caused by the lawyers who don't subscribe to the Inbox Zero credo and the "time sucking controlling nature of the stuff...". Email, hate the stuff! is his take on the problem and he even promises the solution in a future post, which I will definitely be watching out for!

Travis the Trout is another lawyer blogging about new beginnings... a new paralegal job which she seems to be enjoying. Updated with a frequency which puts some legal bloggers to shame (well me, anyway) the blog has a great mix of content... including pointing me to this great Downfall take-off video about Alistair Darling's budget hike in cider duty. I enjoy the blog for its own sake, but it would also be a good read for anyone starting out on a career in the law.

If your own new beginning includes setting up your own law firm, there is some good advice on Peter Blair's blog A Pitch for Common Sense. Peter offers some solutions to the problems facing modern law firms in his 8-step summary of the constitution and governance of an ideal law firm. The Very Model of the Modern Law Firm... has lots of tips for anyone involved in law firm management, but there is one which I think many lawyers would do well to remember:

"don't be afraid to change your mind or to try something new. "All change is bad" is a mantra that has no place in any good organisation"

One final, and very exciting, new beginning. Familoo at the Pink Tape blog has had a "blawg baby" who has already been the subject of his first blog post (on avoiding sibling rivalry): Baby Choo Point Oh. I am seriously impressed that the blog is up and running again a mere three weeks later... the sign of a seriously organised and committed blawger!

On that happy note, I will leave you all to enjoy your Easter long weekends. Thanks for taking the time to read this roundup - I hope it has given a flavour of the variety of legal blogging going on in the UK, and hopefully introduced you to at least a couple of new bloggers.

Don't forget to look out for the next roundup in three months' time - check out the UKBlawgRoundup site for details or follow UKBlawgRoundup on Twitter.

Cadbury Kraft Mini Eggs... here I come!

4 Comments

Email Article in

Law,

UKBlawgroundup,

blawging,

blogging tagged

Easter,

law,

Monday

Mar012010

Competency tests?

Monday, March 1, 2010 at 8:16PM

I have been following the debate in the Law Society Gazette over recent weeks about the inability of solicitors to work to a fixed fee because their counterpart on the other side of a transaction may be incompetent or inexperienced.

This seems to have struck a nerve with the profession (see the letters from Natalie Saunders from Berwins entitled "Time-based charging cannot be abandoned entirely" and from Neil Wright entitled "Competency Test" by way of example and the in-house counsel perspective from Christopher Digby-Bell).

Christopher used the analogy of a heart surgeon to illustrate the concept that payment should be based on results and not necessarily the time spent, which was challenged by a subsequent correspondent who replied that longer heart operations cost more (see the full letter of response here).

This seems like a rather strange argument - as Christopher pointed out in his own response, it is unquestionably true that the operation will cost more (in terms of theatre time and staff costs) but actually the surgeon doesn't charge the patient more in this situation.

I don't disagree that often the biggest problem on a transaction is dealing with a solicitor representing the other party who clearly has no experience or knowledge of the relevant area of law. It can and does make matters much more difficult and time consuming.

As a profession though can we seriously afford to say to our clients "we can't guarantee that other members of the profession are qualified or competent to carry out the work they take on. If it turns out that this is the case here, then we will expect you to pay extra for it"?

As a client, if a lawyer said this to me I would find another lawyer - and there are plenty around who will offer a fixed fee.

Maybe the answer is in competency tests for specific practice areas as Neil suggests? This is the position in other professions such as medicine - to strain the heart surgeon analogy even further your heart surgeon wouldn't be able to decide that he was a little short of work and so would try his hand at a few knee replacements.

Some practice areas do seem to have adopted this idea of additional qualification (for example the Society of Trusts and Estate Practitioners which offers the various STEP certificates and diplomas for practitioners in this area), but it could be used more widely.

I don't believe that the answer lies is in arguing with our clients (and that includes in-house counsel) when they tell us that they want fixed fees and are not prepared to subsidise the incompetence of other solicitors.

To (loosely) paraphrase Bill Gates:-

"in 10 years the way in which solicitors operate today will be obsolete. The only question is whether we make it obsolete or whether someone else will"

If we, as a profession, refuse to listen to what our clients are telling us then it will be someone else who makes it obsolete.