Wednesday 23 September 2009

Professor Susskind acknowledges SOLO contribution

It well worth listening to the College of Law podcast in which Professor Susskind and Mike Semple Piggot engage in conversation about the future of the legal profession.
You will be well aware of Professor Susskind's evangelistic advocacy of all things IT and commoditised that he believes will replace large swathes of lawyers' work in the future. He has seen this future for many years but maybe we are really getting closer now. One of the examples he discusses is a sole practitioner, so it is encouraging to believe we may be part of the future.
Certainly the IT tools I use in my practice for case management, accounting and communication are essential and I could not practice unsupported without them. Indeed they free me to add that strategic advice and wisdom that only an individual brain can add.
I am however less enthused about the idea that we and our clients should outsource entirely. Rio Tinto has taken their patent work offshore. Professor Susskind sees this as extending the team, which is fair enough. I suspect they might have done better to re-examine a strategy that demands they factory file patent applications in the first place.
Another area that concerns me about factory drafted legal agreements is that they tend to be verbose and beyond the comprehension of many clients. So, sadly, do many law firm drafted products. Having learned to draft contracts after I learned to draft patent specifications, I tend to make less use of precedents. My short documents can cause consternation and frequently are substituted by the other side's prolixity. However I keep coming up against problem situations created by misunderstood or missing legal documents:
  • a negotiation between two small firms held up because one wants a 9 page confidentiality agreement
  • investment delayed because the proposed investors don't want to spend the entire investment on drafting the shareholder agreement
  • disputes unsettled as the drafting of the settlement agreement takes forever and the parties forget where they are going
  • re branding prevented because there is no licence to use the new logo

The less0n must be that we do need to keep some sensible legal advice available at a reasonable price. If the price of the real advice can be reduced by IT and commoditisation then I am a supporter but don't take the lawyer out of the equation.

Sunday 13 September 2009

Guest Post from Mark Anderson: Sole or SOLO

My good friend Susan Singleton is a sole practitioner specialising in IP/IT/competition law and a regular correspondent on the letters page of the Law Society Gazette. Her letter in this week’s Gazette comments on the joys of being a sole practitioner. One of the necessary qualities for sole practitioners that she identifies is being “emotionally robust”, which certainly applies to her.

Other qualities that I would identify are:

1. When you start in (sole) practice, it helps to have a steady client base that will stay with you when you go it alone.
2. You need to develop a “gene pool” of contacts who will recommend you or feed work to you to replace the clients who inevitably move on, retire, have no further need of your services, or find someone else whose services they prefer.
3. Linked to the previous point, you need to develop and maintain a reputation as someone who is good at what they do, and a credible alternative to using a larger firm. How you do this depends on your skill-set and temperament.
4. You definitely need to be someone who does not need the social interaction of a large office and can concentrate on work without external pressure.

There are different models of sole practice. Susan has chosen the extreme route of having no support, other than occasionally asking me to baby-sit her clients whilst she is on her holiday island off Panama. My route, as someone who worked at the same firm (Bristows) as Susan for 5 years, and set up my firm about 6 months after she set up hers, has been slightly different. Although still a sole practitioner, I employ six people.

What do readers think are the key qualities for successful sole practice?

Thursday 10 September 2009

Advising SMEs with enforcement issues: can you help?

The appeal posted here earlier today on the IPKat weblog for volunteers to share their experience with SABIP's researchers regarding IP enforcement by SMEs has already attracted some responses from the 'small litigant' sector. Assistance has also been offered by Own-it, which provides pro bono sessions for micro-businesses with enforcement / infringement issues.

If your practice involves advising SMEs, particularly in circumstances in which cost is a major factor, and you'd like to make yourself available for survey or interview purposes, please email Jeremy Phillips or Robert Pitkethly with the email subject line 'SMEs SABIP', no later than 25 September 2009.

Monday 7 September 2009

Must we oppose?

Before investing a client's money on an opposition fee, and mindful of the Trade Mark registry's guidance, I wrote (by fax and post) a while ago to the agents for the application in which my client was interested. Knowing how trade mark agents like deadlines, I asked for a reply by a certain date. When that date passed without a reply I wrote again and asked at least for an acknowledgement, and when that went unanswered too I telephoned.

I spoke to a member of the firm's staff, who told me that because so often a letter-before-opposition was a "try-on", as he put it, it was the firm's practice to ignore them. If a Notice of Opposition then arrived, they would seek an amicable settlement, which he assured me was common practice. I pointed out that this was not an approach conducive to amicable relations, and told him I would refer the matter to the Institute - which I have done. I know that it is not universal practice, because others have acknowledged such letters.

ITMA's Code of Practice deals in section 2 with "relations between members of the Institute". This states in pertinent part: "A Member must behave courteously at all times, irrespective of the issues involved in the matter with which he is dealing". It does not deal with relations between members and other professionals. It seems to me that failing to answer correspondence is about as discourteous as can be (not that I have never failed in timely fashion to acknowledge a letter, but not as a result of a deliberate policy). It also seems to me that obliging the would-be opponent to become an opponent in fact creates an unnecessary cost burden for the opponent and for the applicant, as well as making an amicable settlement unlikely. If my opposition can be settled, it will have to be on terms that include payment of my client's wasted costs, and if that means taking it to a formal decision and costs award then so be it.

What possible purpose does the agent's policy serve? If there is a problem with "try-ons", the same paragraph in the Code surely applies - surely that in itself shows a lack of courtesy.