Category: Interview

Crime Time

European criminal practice varies from state to state. But general trends are rather clear. On the eve of the International Criminal Law Forum, which takes place in Kyiv on 5 April, Olha Prosyanyuk, managing partner of AVER LEX attorneys at law, invited us to join the conversation with Jaime Campaner, managing partner of Campaner Law, and member of the Advisory Board European Criminal Bar Association.[1]

Olha Prosyanyuk (OP): Today, white collar crime is one of the most dynamic practices in Ukraine. It is the result of changes in economy and legislation, as well as increased pressure on business, a sense of impunity on the part of law-enforcement agencies, provoked corruption, and elimination of unwanted personalities by the “system”. Jaime, how would you describe the current state of White Collar Crime in Europe?

Jaime Campaner (JC): I would say that it is increasing and getting more complex along with the growth of the complexity of our society and contemporary business. Criminal codes are mirrors in which societies are reflected. Each new white collar crime is a new failure of society in the sector of the most qualified social classes, and definitely a failure within the core of the economic drivers of a country.

OP: When we cooperate with our partnering European law firms, namely British, Swiss, and Portuguese ones, we face differences in the ways, principles and terms of defense of client interests. Does the practice of defense in criminal proceedings differ among European countries, in your opinion?

JC: Yes, in my experience in criminal defense in cross-border cases (like in mutual legal assistance, the mutual recognition of decisions, extradition or European arrest warrant) the practice in European countries is rather different.

A very interesting issue can occur when the UK requests a citizen who has been previously acquitted in the UK using “new and compelling evidence”. In Spain it is never allowed, in any event, to retrial an acquitted defendant. It would breach the rule of double jeopardy. However, I am aware that nowadays that could be possible in UK. So my question is: are we going too far with the principle of mutual recognition?

OP: Both Ukrainian legislation and the UN Basic Principles on the Role of Lawyers provide for independence of legal attorneys and prohibit interference and obstruction to legal actions. However, in our country criminal attorneys regularlyface pressure from the state and law-enforcement authorities to causerough violation of attorneys’ rights. I mean denial of an attorney, forced removal from a proceeding, criminal prosecution based on professional practice. On top of that, unfortunately, in recent years we saw cases of threats of physical abuse, cars being torched, and murders. Is there anything similar in European countries?

JC:To the best of my knowledge this is not happening, as a general rule, in European countries. At least not in the original fifteen Member States of the European Union.I have been aware of some complaints in Poland but I have not witnessed them at first hand and, therefore,I cannot swear to the existence of this situation, much less as something permanent.

OP: What if the European Criminal Bar Association (ECBA) becomes aware of local cases of violation of professional rights of attorneys, what would be its reaction? Does the ECBA monitor the situation in Eastern European countries?

JC: The ECBA aims to promote the fundamental rights of persons under investigation, suspects, accused and convicted persons across Europe (including Eastern European countries). The independence of attorneys is one of the preconditions of the right to a fair trial in Article 6 of the ECHR, most particularly in terms of the right to legal advice at any stage of a criminal proceeding. So when the ECBA sees violations of professional rights on the ground it reacts by issuing recommendations and statements. For example, I remember an open letter from the ECBA to the Minister of Justice of Belarus after reports that he initiated and endorsed restrictions and the disbarring of several lawyers who undertook the defense of persons suspected or accused of participating in protests that took place in Minsk. The ECBAexpressed its deep concernsto him about attempts to prevent attorneys in Belarus from carrying out their professional duties and that the individuals arrested after the protest, including four former presidential candidates, had been unable to access their legal counsels, and requestedthat the Ministry confirm to the ECBA in writing that it would cease taking such actions against the legal profession in Belarus, and would ensure that arrested individuals were permitted to access their attorneys.

 

OP: How would you assess the current criminal justice reform in Ukraine?

JC: I think the creation of the State Bureau of Investigations is an interesting initiative but we have to wait how it works in practice, and what kind of problems arise, to give a properevaluation of it. On the other hand, I view positively the new Law On Misdemeanors, but I should warn that even though speedy trials have been a satisfactory experience in European countries there is a serious risk of loss of guarantees for the defendant due to the increasedprotagonism of the Police and limitations to the proper right of defense due to the summary nature of the proceedings.

 

OP: I could add regarding “extramural” pre-trial investigations and legal proceedings. This is really important, as in the face of “reforming legislation in accordance with international standards” there are attempts being made by representatives of law-enforcement agencies and courtsto simplify criminal prosecutions. The brightest example is the attempt to exchange the requirement of putting a person on the Interpol international wanted list for conducting extramural legal proceeding on issuing an order on search by the investigator. In this case, the latter is authorized to do so only on the basis of a short-term absence of the person on the territory of Ukraine, and following few formal nuances.

By the way, I would like to draw your attention to another Ukrainian trend. Today,  casesare not rare when a suspect is not yet aware of a criminal investigation and the announcement on his arrest, while the board of law-enforcement bodies has already published the news in social media. Or, when a search has not been completed but its results are being published in the media. It has an especially negative effect in politically motivated cases, as the public and judges form their opinion without counting the arguments of the defense and the research on facts from both sides. In these situations it is reasonable for the criminal attorney to work with the media in order to let the public assess the arguments of both sides and make an informed opinion. This can contribute to some difficulties for the defender, meaning not only representing interests in court but also before the general public. How should an attorney respond to public opinion?

JC: It is an undeniable reality that the principle of open justice has mutated into a principle that everything should be made public in the media on a permanent basis, which damages the proper functioning of the administration of justice. But in my opinión, it doesn’t mean that an attorney should participate in the media parody. The defense counsel, just like the suspect or defendant, should speak and act in a court and should be impermeable to public opinion, despite the fact that sometimes the client does not understand this silence. I sincerely believe that in the long run it works in favor of the client. As always, there are exceptions: if it is a case before a jury, it is sometimes advisable to respond to public opinion (when theprosecutor makes public statements).

 

OP: The ways of committing crimes are evolving in unison with the introduction of legal acts, multi-jurisdictionality of legislation and technological progress. In your view, how will the practice of the Criminal Law and Process develop over the next few years?

JC: In point of fact, those factors require deep knowledge of new technologies and the lawyer must know perfectly how to obtain and serve electronic evidencein a courtroom. Otherwise, that hard work may not bear fruit.

In my opinion, it is essential to create co-workingteams that include lawyers from each jurisdiction that is involved, precisely because of the great differences between the systems of each country, even in the European Union. Just like a few years ago it was inconceivable that an attorneycould not work on any specific case (civil, criminal, labor, administrative), and today there are  specializations by subject matter; in a few years it will be unthinkable that a single lawyer from one jurisdiction will be able to solve a case without working closely with attorneys from other jurisdictions involved as part of a joint team.

[1] The translation of the interview is published in the Yuridicheskaya Practika Weekly: https://new.pravo.ua/articles/crime-time/?fbclid=IwAR1lr1DrrDhe9xoLIN7dZ50NmcyAfJ3mywjFv3yLnlwALijXP6m6ctN6ti8

Evolving Role

English law is a key export of the UK to post-Soviet countries, including Ukraine. Every year legal practitioners from both countries gather for English Law Day in Kyiv. We met Christina Blacklaws, President of the Law Society of England and Wales, to explore the development of the legal profession, the evolving role of women in law and UK market trends.

UJBL: Your Presidential year is dedicated to the empowerment and leadership of women in the legal profession. How would you describe the situation in the profession in general. And particularly in England and Wales?

Christina Blacklaws (CB): As the centenary of the 1919 Sex Disqualification (Removal) Act, this is a landmark year for women in the profession. It denotes a historic moment; 100 years since women won the right to practice for the very first time.

This is a time, of course, to reflect on the considerable progress that’s been made. However, we must also acknowledge that there is so much work left to do. We know that 60% of new entrants into the profession have been women, but women only represent 30.8% of partners in private practice.

That’s why over the past year, we have focused on uncovering the hidden barriers that hinder the progression of women in law. We’ve held over two hundred roundtables and conducted the largest ever international survey on this topic. Nearly 12,000 women and men have taken part.

As a result, we have been able to outline three primary obstacles to progression: unconscious bias, the gender pay gap and a lack of flexible working. If we are to enable more women to reach positions of senior leadership, we must be willing to get to grips with those issues as we strive towards building more inclusive and flexible workplace cultures.

UJBL: What are the current policy trends across UK law firms and globally?

CB: Law firms based in the UK and global law firms with substantial operations in the UK, play a central role in the UK’s successful service sector. English law and legal services emanating from the UK are a key export and, as a result, large law firms take an increasingly global view of the legal services market. That’s why the most successful firms are placing an emphasis on modernization, particularly the need for innovation in the provision of legal services. They are making maximum use of legal tech, an area where the UK leads the world. Keeping up the pace with these trends is amongst the primary challenges for UK firms and those operating in the UK.

We at the Law Society are devoting substantial efforts to promoting achievements in this field, to ensure that UK law firms continue to be leaders in a competitive global market.

UJBL: How would you comment on the situation that there is a substantial gap in compensation even in Magic Circle law firms?

CB: The Gender Pay Gap reporting requirement has been an effective policy as it has shone a light on this issue and, often for the first time, firms have been looking at their reward information through the lens of gender equality. The fact that many law firms have larger than average gender pay gaps is concerning, and something which I hope is getting real attention in those firms.

We have produced a Gender Pay Gap Toolkit which enables firms to identify and then address any pay gap issues. We are also encouraging firms to include their partners in their gender pay gap reporting and to report on their ethnicity pay gap as well.

 

UJBL: What can the Law Society of England and Wales do to increase the role of women? Can you give us some examples of your recent achievements and share your plans?

CB: Historically, the work culture in law firms has been set by men. Transforming those cultures has to be a prerequisite to unlocking more opportunities for women in the profession. By exposing the challenges, we hope to support firms in creating that change.

Firstly, there must be an acknowledgement and willingness to address unconscious bias. In our research this emerged as the biggest barrier to women’s career progression – 52% of respondents feeling it prevents women from reaching senior leadership positions, yet only 11% receive consistent unconscious bias training at work. I have spoken to many women who believe they have been held to different standards of behavior opposite male colleagues.

60% of respondents in the Law Society’s survey reported being aware of a gender pay gap in their organization, but only 16% saw visible steps being taken to address this. We want to empower women to be able to have “difficult” conversations about pay equality without simply being labelled “pushy”.

Finally, 91% of respondents in the Law Society’s survey saw flexible working as key to improving diversity in the legal profession, but only 52% work in organizations where flexible policies are consistently enforced. Firms must consider introducing flexible working patterns to show that it is the quality of work, rather than the number of hours spent in the office, that matters.

We are encouraging law firms to fall behind this vision of a more positive and inclusive environment. As a profession which strives to uphold justice, the legal sector must be at the forefront of the fight for equality in the workplace.

We are holding aninternational symposiumon Thursday 20 – Friday 21 June 2019 in London.I hope that as many colleagues from Ukraine – menas well as women – will attend.

 

More Than Just Business

During his first visit to Ukraine, Paul Rawlinson, Global Chair of Baker McKenzie, told UJBL readers in a special interview of his vision of the balance between local independence and a global strategy, partnership policy and innovation, as well as the global challenges facing the legal marketplace during celebrations to mark the 25th anniversary of Baker McKenzie-Kyiv.

 

What is Baker McKenzie’s strategy? How does the firm meet the challenges of the global legal marketplace?

Paul Rawlinson: Baker McKenzie is an international law firm that operates in 47 countries with 77 offices. How is that organization relevant to today’s economy? The firm was set up, obviously with the different economic and different client needs, so we are always looking at how we can be responsive to  what our clients are asking for. And the strategy of the firm is to really partner with clients, to help them navigate these risks. You look at the risks of doing business in different markets, and also risks of changing the regulatory environment in different sectors: financial sector, energy sector, consumer goods or pharmaceuticals. You`ve got different issues which clients face in terms of doing business internationally. So our job as lawyers is to do M&A deals, to help them with the IP protection, to help them when they get litigation. Typically now we are working with those clients in terms of their business strategies, to help them before these issues arise, and to help them to manage those risks. When we talk about the role of Baker McKenzie, we are moving from a more traditional view of the lawyer to one that`s partnering with clients through industry knowledge, a real understanding what the client business agenda is, helping clients to navigate those risks. What does it mean? It means that we need to equip our lawyers with those skills, not to just be good technical lawyers, but to be able to really understand the industry, how that client operates in this sector, what the challenges are, and to be comfortable talking to the client about the business issues. So when they come back to the office with a mandate, the client wants to do, they have got a much better understanding about that client and the needs of work to be done.

So the strategy of the firm is to look more at an industry focus, to equip our lawyers with business skills as well as legal skills, and also to continue to stay ahead of the developments in the market. The market is moving quite quickly, so using artificial intelligence, using innovation to help us deliver legal services more efficiently or price competitively is also what our clients want to have because clients are pressed with their needs, with a fixed legal budget they need lots of things to happen. But before this happens we have to respond in a more innovative approach to the way of a pricing services, to the way as we deliver our services using different means of mechanisms to do that.

 

What is the geographical strategy of Baker McKenzie? Do you see any opportunities in the emerging markets like Ukraine, and other CIS countries?

P. R.: We have been in Ukraine for 25 years and even longer in other emerging markets in the region. Right now our strategy isn`t to open new offices unless it’s really strategic. We`d love to be in India, but we can’t be because of regulatory reasons. We certainly look at Africa as  it is  a great opportunity because  our clients are increasingly looking to invest in that continent where we have presence in three offices: Cairo, Casablanca and Johannesburg. Africa is a huge area. Although we are not looking at opening offices in more countries right now we have a real understanding as to how we can continually adapt our services in all the markets which we have a presence. Take Ukraine as an example, we are looking at what are the business needs of our clients today. We just had a meeting with a number of business leaders in the Ukrainian community, talking about the need to encourage investment, how can we help that. They need to improve anticorruption laws and how can we help with them. They need to help with a labor market in terms of employment rights and obligations and how we can navigate that. These are the issues that clients want to talk to about, to help them manage those issues and help them ultimately succeed in this market. So our lawyers here, in Ukraine, are looking for ways to improve the connectivity with what the clients want. At the same time, still be an excellent lawyer and technically gifted for people to do the work to a high standard.

 

Since the financial crisis, clients have become cost-sensitive and put pressure on the pricing of law firms. How did you feel it in Baker McKenzie?

P. R.: The clients want value for money, like all businesses. They want to know when they are getting the best value, and they want to have an excellent service but they want it for the right price. Typically clients started to become unhappy with the notion of billable hours. Sometimes that can be a right model but more often now we talk to clients about the overall value of the matter. So they give us an M&A deal, or they give a tax assignment or whatever, we can teach them about pricing much more innovatively, both sides being more creative. We can have a sense of how long it will take, and what sorts of resources we need, what a client is uncertain about. When you have a client that is giving you lots and lots of different pieces of work, it is easy to do that because you can look at the relationship as a whole, with some issues you handle  more efficiently than others, while sometimes there will be unexpected events in a matter which no-one could predict. The more you can keep them away from the client the better, and just keep a client happy with the uncertainty of a feeling that next you will start to sort a really good relationship with clients.

 

Baker McKenzie is known for giving lots of independence to its offices at local level. What is the advantage of such an approach? What is the secret to maintain this balance of local independence and global strategy?

P. R.: It is a very good question. As a global law firm we have many global clients who expect consistency across markets, and we have process and proceeds in play to manage our global clients in a consistent way. And all the offices in the firm know what that means. We have relationship partners, people who manage those accounts, and there should be no differences in the service level wherever clients use us. At the same time, we encourage local offices to have a certain amount of work which is domestic work. We don`t need to manage that because they know what the market needs but if you are acting for a global client, we are very integrated. It`s getting the balance right between offering a global service, offering in the same format, in the same standard, but having lots of flexibility so the local market can adapt to the needs of domestic clients. It is not something that we are uncomfortable with because we’ve got used of operating like that. The shift is more towards  global work because more of our business is international. Even here in Ukraine a significant  proportion of work does have  an international element. So more and more of our work requires multiple offices to work together and collaborate.

 

What is your partnership policy? As far as I know from the history of the Kiev office, here the partners were promoted internally, from within the firm. Do you hire external partners at your other offices?

P. R.: Yes, we do. We have the good quality people coming through. And generally speaking, it’s a really good thing to have lots of people coming though the firm who train with us,  understand the firm, the culture of the firm and to grow people to become our future partners. So that is still very much the norm with all the advantages I’ve mentioned.  You get a real consistency of people coming through with in built  loyalty to the firm.

But with lateral partners they are also very beneficial because they bring something different. Besides  you may not able to grow if you don’t have the right people in the right area. You do need to supplement this with laterals. And we have increased our lateral hire rate particularly in the financial area, where we need to improve our numbers generally and get bigger. The  answer to this question is you need a healthy mix of both home grown and lateral talent. It’s not a policy issue here in Kiev. If you have the luxury of having good people coming through then you don’t need to hire laterals, that’s fine. If you have an area where you still have lack of expertise, then sometimes you have to bring people in from outside. If you are growing at a rate where your people coming through is just not enough to sustain the growth you need.

 

Your firm is known for its diversity policy. What is the reaction of your clients? Do they appreciate this approach?

P. R.: They do love that. I mean they are driving it. Because they ask us to make sure that not just when you do the pitch, but when you do work, that they have a diverse range of people, not just gender but also different perspectives. Gender is the key one for many of our clients. They want us to have diversity in a good sense of the range of perspectives. It also reflects on the way the clients look and feel as well. And they feel more comfortable with a mix of different types of people around the table from agenda, ethnic and angles of cultural basis. We’ve got a way to improve, but I think we’ve had a good track record of tackling that issue, seriously introducing gender targets. Last year we had 40% female partners promoted globally across the board. It doesn’t improve the imbalance right away and  it will take some time to work through the system, before we could equalize overall. Our ambition is to meet our global inspirational targets.

 

You have already touched upon the legal tech. How do you introduce innovations in Baker McKenzie? Do you invest in artificial intelligence, special programs or applications?

P. R.: AI means different things to different people. The way we look at it is looking at innovation as the topic, having a group of people looking at it, recommending that we invest in certain things — certain technologies, certain skill sets, and may be even buying an expertise from other areas in the future. What we’ve done so far is invest  in different technologies, and train people how to use them to be more efficient in the way they deliver services.

So if you are involved with a major piece  of litigation and you need to review a million documents historically you have needed a major team to get involved. Now we have a tool that pre-selects that number down to maybe 10,000 documents and then turn that over to a  human mind to look at them. Sophisticated AI can achieve that through  key search terms, and things like that.

If you have an M&A deal, and you are doing some due diligence, checking contracts, you can also use another product we’ve rolled out to make sure you are not wasting time on the relevant documents. So again, searching through against the large volume of documents to make the lawyer’s job quicker, easier, faster, and more efficient.

These technology tools need to be integrated with the way you work, always making sure you understand how to use them and understanding the limits they have  so that the human intervention can be appropriately used once the  first cut of document review is complete. Two examples of the way in which innovation and AI can help to reduce the costs to the clients, making them more efficient, and also making lawyers job more interesting. It’s all about gaining efficiency and getting value added. So when the client sees the bill they know that the lawyer spent quality time on their matters and not including  hours without good reason.

 

We have seen that Baker McKenzie went under slight rebranding recently. How does it affect the positioning of the law firm?

P. R.: It’s important. So for me it’s not about the visual identity of Baker McKenzie. Yes, it is a bit of a visual boost. I think all companies have that, every now and again. But what sits behind that? I think it’s a modernization of the way we work.

So we are developing these ways of working that we might call the New Lawyer. What does the New Lawyer look like? The New Lawyer is socially mobile, an agile worker probably with a millennial, different way of working, comfortable with technology, probably speaks multiple languages, is comfortable talking to clients about business and legal issues. So, the rebranding is, if you like, a reflection on a modernized view on what we expect of our people, and also what our clients can expect of us, rather than some other law firms being more distant, maybe even arrogant, and don’t really listen, not good communicators. That is not us. So, the brand we want to project is a modern, young version of who we are. Very international, very global, very comfortable with clients, very accessible and mobile, and comfortable across cultures and markets. For me it wasn’t so much about a flashy sign, it’s more what was sat behind that, and what reflects our values.