Welcome to the June 2022 Edition of Lawyer Monthly! This month’s issue tackles a range of emerging concerns in the legal sector. With the UK government set to override the Northern Ireland Protocol, a key portion of the Brexit deal, our cover story focuses on the new bill and its implications for the UK, EU and Ireland. What does the bill change? What are the concerns of its critics, who have slammed it as illegal under international law? You can find our analysis on page 12. In an exclusive interview on page 66, we hear from Tracy Liberatore and Michael Jonathan Clark of Med Legal Pro, a growing Pennsylvania firm connecting legal counsel with expert witnesses. Both share their career stories and offer a unique perspective on the world of medical expertise. Our other cover story for this month comes from Nuno Cardoso-Ribeiro on page 44, exploring the unique aspects of Portuguese family law and their implications for international parental child abduction in the country. Further insights on international child abduction are shared by Richard Min on page 50, delving more deeply into the crime and how its victims are recovered. In addition, other featured contributors have offered exclusive deep dives into a range of subjects including mediation training, Brazilian white-collar crime and special education litigation for you to browse. The July edition also includes a round-up of several of the explosive legal news stories to emerge this month, such as the US Supreme Court’s shocking reversal of Roe v Wade, as well as a report of lawyer moves and a breakdown of high-profile mergers and acquisitions. We hope you enjoy this edition. Approx. 302,000 net digital distribution. LAWYER MONTHLY©2022 Universal Media Limited Lawyer Monthly is published by Universal Media Limited and is available on general subscription. Readership and circulation information can be found at: www.lawyer-monthly.com The views expressed in the articles within Lawyer Monthly are the contributors’ own. All rights reserved. Material contained within this publication is not to be reproduced in whole or in part without prior permission. Permission may only be given in written form by the management board of Universal Media Limited. Universal Media Limited: PO Box 17858 Tamworth, B77 9QG, United Kingdom Tel: 0044 (0) 1543 255 537 Follow Us: @lawyermonthly @LawyerMonthly @lawyermonthly linkedin.com/company/lawyer-monthly - EDITOR Oliver Sullivan editor@lawyer-monthly.com PRODUCTION MANAGER Emma Tansey production@lawyer-monthly.com - A Note From the Editor Oliver Sullivan Editor - Lawyer Monthly LM EDITOR'S NOTE 3 JUL 2022 | WWW.LAWYER-MONTHLY.COM
INSIDE THIS ISSUE Contents 4 WWW.LAWYER-MONTHLY.COM | JUL 2022 12 WORLD REPORT 6. Monthly Round-Up 8. Lawyer Moves - Recent Appointments FRONT COVER FEATURE 12. 'Fixing' the Northern Ireland Protocol By Oliver Sullivan MY LEGAL LIFE: 16. Finding Success in Special Education Litigation Nicole Hull, The Hull Firm LLC 22. From Innovation to Innovability Marco Imperiale, LCA Studio Legale 28. The Cutting Edge of Life Sciences Francesca Belli Novak, BelliLS SPECIAL FEATURES: 32. No-Fault Divorce and Family Justice in the UK Amanda Phillips-Wylds, Stowe Family Law 36. How to Protect the Judiciary from Political Interference Gareth Probert, EIP 40. Moving to the Cloud: Opportunities and Pitfalls Robert Rutherford, Quostar EXPERT INSIGHT 44. Unravelling Divorce and Family Law in Portugal Nuno Cardoso-Ribeiro, Divórcio & Família 50. Navigating Obstacles in International Child Abduction Richard Min, Green Kaminer Min & Rockmore LLP 54. Training a New Generation of Mediators Helen Lightstone, Lightstone Academy for Conflict Resolution 58. ESG and Private Equity in 2022 Nathan Blatz, Blatz Avocat THOUGHT LEADER 62. How White-Collar Crime is Prosecuted in Brazil Edward Rocha de Carvalho, Miranda Coutinho, Carvalho & Advogados EXPERT WITNESS 66. Connecting Attorneys with Medical Experts Tracy Liberatore & Michael Jonathan Clark, Med Legal Pro LLC 70. Expert Perspectives in Medico-Legal Care Lucinda Lloyd, Jane Jones and Associates TRANSACTIONS 74. What’s Happening in the World of M&As and IPOs? ‘ F I X I NG ’ T HE NORTHERN IRELAND PROTOCOL WR I T T EN BY O L I VE R S U L L I VAN
INSIDE THIS ISSUE 5 JUL 2022 | WWW.LAWYER-MONTHLY.COM Marco Imperiale From Innovation to Innovability Nicole Hull Finding Success in Special Education Litigation Francesca Belli Novak The Cutting Edge of Life Sciences 22 16 Nuno Cardoso-Ribeiro Unravelling Divorce and Family Law in Portugal 44 28
MONTHLY ROUND-UP On 24 June, the US Supreme Court voted to overturn the landmark 1973 Roe v Wade ruling that recognised a woman’s constitutional right to an abortion and legalised the procedure nationwide. The ruling comes as a momentous victory to Republicans and religious conservatives. The United States and Meta Platforms Inc, which owns social media platform Facebook, have settled a lawsuit over a housing advertising system that illegally discriminated against users based on their race as well as other characteristics. ROEVWADE: LANDMARK ABORTION RULING OVERTURNED BY US SUPREME COURT META SETTLES RACIAL DISCRIMINATIONLAWSUIT WITH US Powered by its conservative majority, the Supreme Court upheld a Mississippi law that prohibits abortion after 15 weeks. The vote was 5-4 to overturn Roe. The justices ruled that the Roe v Wade decision, which permitted abortions before a foetus would be viable outside the womb, was wrongly decided based on the US Constitution containing no specific mention of the right to an abortion. In a statement, Nancy Pelosi, Speaker of the United States House of Representatives, said, “This cruel ruling is outrageous and heartwrenching. But make no mistake: the rights of women and all Americans are on the ballot this November.” LM The lawsuit filed by the Department of Justice claimed that Meta encouraged advertisers to target users based on their race, religion and sex, thus violating the Federal Housing Act. Meta has denied any wrongdoing, though agreed to pay a civil penalty of $115,054. This is the highest sum permitted under the law. The US tech company has also agreed to cease the use of an algorithmic tool called “Special Ad Audience” and design a new housing advertising tool by the end of 2022. Since 2016, Meta has been subject to several complaints about ads-based discrimination and has reached settlements with the state of Washington and rights groups over similar claims. LM 6 WWW.LAWYER-MONTHLY.COM | JUL 2022
MONTHLY ROUND-UP The University of Pittsburgh School of Law is working to bring several Ukrainian lawyers to the US to spend a year studying and undertaking pro bono work. The initiative comes as part of Pittsburgh’s Ukrainian Legal Assistance Project. On Friday, UK Home Secretary Priti Patel approved the extradition of WikiLeaks’ founder Julian Assange to the US to face criminal charges, bringing his long-running legal saga closer to an end. US LAWSCHOOLS TO FUND DEGREES FOR UKRAINIAN LAWYERS UKAPPROVESUS EXTRADITION OF WIKILEAKS FOUNDER JULIANASSANGE Pittsburgh is committed to paying the Ukrainian LLM students’ tuition as well as covering their travel costs and living expenses as required. It will also help the students to obtain their visas. Due to Ukraine’s conscription rules, the students are mostly women who have fled Ukraine and are currently residing in European countries. However, the University of Pittsburgh has accepted two US authorities want Assange on 18 counts, including a spying charge, relating to WikiLeaks’ release of confidential US military records and diplomatic cables. Washington says the releases by Assange put lives in danger. “In this case, the UK courts have not found that it would be oppressive, unjust or an abuse of process to extradite Mr Assange,” the UK Home men who may be allowed to participate. Other law schools across the US are also working to support Ukrainian lawyers, including the University of Miami School of Law and the University of Florida Levin College of Law. Both have opened up a scholarship for a Ukrainian law graduate to attend their LLM programme. LM Office said in a statement. “Nor have they found that extradition would be incompatible with his human rights, including his right to a fair trial and to freedom of expression, and that whilst in the US he will be treated appropriately, including in relation to his health.” Assange’s wife has said he plans to appeal the Home Office’s decision. LM 7 JUL 2022 | WWW.LAWYER-MONTHLY.COM
LAWYER MOVES
LAWYER MOVES Allen & Overy has announced the appointment of partners Gilbert Li and Iris Yeung to its AsiaPacific corporate practice. Both partners join from Linklaters and bring a strong track record of advising clients on highvalue corporate transactions including public and private M&A. Both have also accrued a good deal of experience in equity capital markets (ECM) transactions that will further bolster Allen & Overy’s practice. Li’s portfolio includes some of the most complex and high-profile M&A transactions in the Asia-Pacific region. His past experience includes energy, financial services, fintech and infrastructure deals – all of which are currently seeing an increase in M&A transactions. He has also been recognised by Legal 500 as a “Leading Individual” and ranked by Chambers & Partners. Li’s time will be divided between the firm’s Hong Kong and Sydney offices. Yeung advises banks on corporations on public M&A and equity fund-raising exercises, with experience advising on numerous marketleading deals. She will work closely with Allen & Overy’s Greater China practice as well as Shenghai Lang Yue Law Firm – its joint operation firm – to provide businesses in mainland China with support on their public and private fundraising activities. Lina Lee, partner and head of Allen & Overy’s Hong Kong Corporate practice, lauded the partners’ appointment in a statement. “The strategic appointment of Gilbert and Iris is an important step in continuing to provide our clients with a market-leading regional integrated M&A and capital markets offering,” she said. Two Partners Join Allen & Overy’s Asia-Pacific Corporate Practice Baker McKenzie has announced that Bruno Dominguez, partner and head of its tax practice in Barcelona and Chair of its wealthmanagement practice for EMEA, will become the firm’s new co-managing partner in Spain. Dominguez, is expected to share the leadership and management of the firm with Rodrigo Ogea, working together to continue the firm’s growth. In his work at Baker McKenzie, Dominguez has gained extensive experience in tax planning and consultancy. He represents clients dealing with tax inspections and court procedures in Spain and advises family-owned businesses and multinationals on mergers and acquisitions, cross-border transactions, transfer pricing and business restructuring. He is also well-practiced in tax planning for high-networth individuals and families. Dominguez’s appointment coincides with Baker McKenzie’s promotion of two new partners to its Barcelona office. The presence of the new partners, Javier Blázquez and Rubén Lago, willconsolidate the continued strong growth of the firm’s tax practice. Dominguez’s appointment will go into effect on 1 July 2022. Freshfields Bruckhaus Deringer (Freshfields) has appointed partner Mark Sansom as head of dispute resolution for its London practice. He succeeds Sarah Parkes, following her recent appointment as global head of the practice. Sansom, who is recognised as a top-tier competition litigator, will continue his client work and leadership of Freshfields’ global antitrust litigation group while leading the London disputes practice. To his new role, he will bring a track record of advising on seminal cases in the UK and wider Europe for many high-profile clients, including Mastercard, Infineon, ABB and the Go-Ahead Group. Outgoing dispute resolution head Sarah Parkes said of Sansom’s appointment: “I am delighted to announce that Mark will assume leadership of the dispute resolution practice in London. Mark has all the qualities to drive forward the success of our practice as a marketleading antitrust litigator advising our global clients on complex, crossborder disputes.” The shake-up of leadership in Freshfields’ London disputes practice comes on the heels of Parkes’ rise to global head of dispute resolution, succeeding long-time practitioner Andy Hart, who will return to his practice at the firm now that his term has been completed. Sansom’s appointment goes into effect on 8 July. Backer McKenzie Appoints New Co-Managing Partner for Spain Freshfields Takes On New London Dispute Resolution Head 10 WWW.LAWYER-MONTHLY.COM | JUL 2022
LAWYER MOVES City firm Clifford Chance has hired its first ever global head of wellbeing and employee experience, furthering the firm’s goal of being a “leading employer of choice” in the sector. Charles Alberts joined Clifford Chance at the beginning of June, having previously worked as head of wellbeing at professional services company Aon since 2017. In a press release, the firm announced that his appointment to the new position would “drive forward the recently-implemented global people and talent strategy” created by Grant Eldred, Clifford Chance’s chief people officer. In his new role, Alberts will work closely with both Eldred and Chimwe Odimba-Chapman, the firm’s global partner for talent. Alberts will be responsible for creating and delivering Clifford Chance’s first global wellbeing strategy. Alberts, who will work with Eldred and Clifford Chance’s global partner for talent Chinwe Odimba-Chapman, will be responsible for creating and delivering the firm’s first global wellbeing strategy. In a statement on his appointment, Alberts said: “Protecting and enhancing employee wellbeing and creating positive experiences has never been more important in the rapidly evolving world of work. It is evident that Clifford Chance is serious about its people and I look forward to working with our leaders and colleagues to create a world class approach to wellbeing, enhancing each step of the employee journey.” Alberts’ appointment comes as the legal profession attempts to come to grips with concerns that lawyers are experiencing workrelated stress or burnout. Legal mental health charity LawCare identified stress as the most common problem cited by those who contacted its staff in 2021. Clifford Chance Appoints First Global Head of Wellbeing Leading global firm Dentons has announced a list of its 37 new practice and sector group leadership appointments for the Europe region for the term ending December 2024. The raft of new appointments is in keeping with Dentons’ mandatory periodic review and rotation of key regional leadership roles, which is laid out in the Dentons Europe partnership agreement. The new sector and regional leaders were appointed by Tomasz Dąbrowski, CEO of Dentons Europe, and undertaken in consultation with the Dentons Europe Board and the firm’s global practice and sector leadership. “I am thrilled to congratulate these 37 talented partners – all of whom are recognised as leaders in their fields - on their European leadership appointments,” Dąbrowski said in a statement. “In their new roles, they will be responsible for driving the strategic development of their respective practice and sector groups in order to enhance our service offering, deepen key client relationships, develop and attract talent and build our market profile.” The 37 newly appointed leaders are based in 12 different offices across Europe, and over one third (35%) are female. A full list of the new appointments is viewable on Dentons’ website. Dentons Announces New announces Leaders of Europe Practices and Sector Groups 11 JUL 2022 | WWW.LAWYER-MONTHLY.COM
‘ F I X I NG ’ T HE NORTHERN IRELAND PROTOCOL - WR I T T EN BY O L I VE R S U L L I VAN -
On 27 June, the UK government’s controversial bill to change a key part of its post-Brexit trade agreement with the European Union was passed in the House of Commons. Now, lawmakers and businesses prepare to assess the consequences.
WWW.LAWYER-MONTHLY.COM 14 What is the Northern Ireland Protocol? Following the UK’s exit from the EU Single Market and Customs Union, the formerly free trade between Britain and EU member nations was no longer possible. The EU’s food rules require border checks when certain food and agricultural products, such as milk and eggs, arrive from non-EU countries. This raised issues for trade relations between Northern Ireland and the Republic of Ireland, the UK’s sole land border with an EU member nation. All parties involved wish to avoid the return of a “hard border” between the two countries, which would involve the use of cameras, border posts and checkpoints with the potential to be targeted by paramilitary groups. The Northern Ireland protocol was introduced as part of the 2019 EU-UK Withdrawal Agreement as a means of preserving the soft Irish border while complying with the two blocs’ new trade relationship. It allows for a continuation of the free flow of goods between Northern Ireland and the Republic of Ireland that was standard prior to Brexit. To facilitate this, when goods arrive in Northern Ireland from the rest of the UK (England, Scotland and Wales), they are checked against EU rules at the port where they arrived. The new arrangement has necessitated the hiring of new customs agents to address a backlog of goods being transported across the Irish Sea, and has restricted what some supermarkets and other produce sellers are able to supply. The protocol has also not yet been fully implemented, with more checks on British goods expected to increase costs once the grace period ends. There is disagreement between think tanks on just how much disruption has been caused as a result of the protocol and whether or not its existence is a net cost or benefit to Irish trade. What Are the Effects of the Bill? The new Northern Ireland Protocol Bill proposes a fundamental shift in the way trade is conducted between Great Britain and Ireland. Its core premise is the creation of separate lanes for British goods imported to Northern Ireland, with a “green lane” exempt from checks and customs controls established for goods intended for Northern Ireland only and a “red lane” for products going to the EU – including the Republic of Ireland – which will be subject to full checks and paperwork. Beyond the issue of trade with the Republic of Ireland, the bill also gives UK ministers more power to alter tax and spending policies. Under the protocol, Northern Irish businesses currently follow EU rules on state aid and VAT, limiting government payments made to assist firms. The bill would enable the government to remove those limits. The government is also seeking to alter current arrangements so that disputes over the Northern Ireland Protocol are “resolved by independent arbitration and not by the European Court of Justice”. The largest unionist party in Northern Ireland, the DUP, is supportive of the bill, and is currently refusing to participate in the Northern Ireland Assembly until its concerns with the protocol have been resolved. Having come in second place in the May elections behind nationalist party Sinn Féin, the power-sharing government cannot be formed without its support.w
WWW.LAWYER-MONTHLY.COM 15 The largest unionist party in Northern Ireland, the DUP, is supportive of the bill, and is currently refusing to participate in the Northern Ireland Assembly until its concerns with the protocol have been resolved. Next Steps for the Bill While the Northern Ireland Protocol Bill has cleared its first legislative hurdle, it is still far from settled law. The opposition and the 70 Conservative MPs who abstained from the recent vote will have an opportunity to support amendments stripping the bill of some of its more contentious elements. The government has set a condensed three-day committee stage for review of the new legislation – a process that typically takes between two and three weeks – signalling an intention to advance the bill through the Commons before the mid-July recess. Despite this, there is every chance that the end state of the bill after passing committee and the House of Lords will be much diluted from its current form, and a high likelihood that the Lords will slow its passage for several months. Conservative MP Simon Hoare, who chairs the Commons Northern Ireland Committee, has predicted that the final bill may not pass until next spring. Lawyer Monthly will continue to track the status of the bill as it passes through Parliament, as well as any further legal actions undertaken by the EU in response. Legality and Repercussions for the UK Some MPs and other critics of the government’s move have taken aim at the Northern Ireland Protocol bill for its deliberate contravention of the agreed terms of the EU-UK Withdrawal Agreement. In a statement in Parliament, former Prime Minister Theresa May condemned the passing of the “illegal” bill as liable to diminish the UK’s standing in the eyes of the international community. Others have argued that the bill is legally permissible in international law. The most common pro-bill argument cites the Article 16 provision of the protocol, which allows for unilateral safeguarding measures to be undertaken against the protocol if it leads to “serious economic, societal or environmental difficulties that are liable to persist, or to diversion of trade”. The protocol provides no guidance as to what qualifies as a “serious” difficulty or a “diversion of trade”, though the UK government stated in July 2021 that it believed the threshold had been met. To date, however, it has not begun the process of activating Article 16. Whether the bill constitutes a breach of international law or not, EU member states who perceive it as such will likely have few options for recourse. As a warning, the EU has restarted legal proceedings against the UK for alleged breaches of the protocol, with the possibility of further measures to be enacted later – such as the imposition of tariffs or the termination of the entire Brexit deal within one year as a “nuclear option”. With both the UK and EU economies already in a vulnerable position and unenthusiastic about a trade war, however, the only certain damage is likely to be dealt to international perceptions of the UK.
About Nicole Hull Nicole Hull possesses a wealth of experience representing and litigating on behalf of families in special education and child abuse and neglect cases, in addition to extensive experience in the alternative dispute resolution field. Because of her vast experience, Ms. Hull was appointed by the Georgia Supreme Court to serve on the Commission on Dispute Resolution to oversee the development of court-connected ADR programs in Georgia. Prior to founding The Hull Firm LLC in 2014, she clerked for the University of Georgia’s Carl Vinson Institute of Government, where her research and policy analysis reports were later used in the revisions for the Georgia Juvenile Code. She also serves on the Clarke County School District's Board of Education and is an adjunct professor for the Walter F George School of Law and Brenau University. About The Hull Firm LLC The Hull Firm LLC is a law firm devoted to advocating for the best interest of children. The firm’s attorneys place emphasis on helping parents to understand the law, enabling them to make the most beneficial decisions for their children’s futures. Some of the firm’s specialisations include education and special education needs, guardianships, delinquency, mediation and child abuse and neglect.
Finding Success in Special Education Litigation JUL 2022 | WWW.LAWYER-MONTHLY.COM entitlement of all students in the United States. The right to a FAPE is a civil right rooted in the Fourteenth Amendment, which requires schools to provide students with disabilities with special education and related services, at public expense, designed to prepare those students for the future. To provide FAPE to a student, schools must provide students with an education, including specialised instruction and related services where necessary, designed to prepare the child for “further education, employment, and independent living”. Under the Individuals with Disabilities Education Act (IDEA), federal and state laws require that children with disabilities and their families have specific educational rights and procedural protections for exceptional students. The law provides for specialised instruction in the least restrictive environment possible that meets these students’ challenges – whether physical disabilities, developmental disabilities, behavioural or emotional disabilities, or sensory impairment. ever have to feel this way while trying to advocate for their child. Therefore, my law practice focuses on helping parents understand how the law works so that they can make informed decisions that protect their children's safety, future and best interests. At The Hull Firm, I litigate matters involving the violations of students’ and parents’ special education rights during the process of identification and eligibility, educational program development, and service implementation. What is Free Appropriate Public Education (FAPE) and what does it cover? The right to a Free Appropriate Public Education (FAPE) is an educational Special education litigation is a very niche area. How did you get involved in this type of work? I remember sitting in my first special education meeting and feeling overwhelmed and under-prepared. As the meeting progressed, I felt like I was observing a meeting about my child’s education instead of participating in a collaborative effort. I did not understand the terms the administrators were using, the data they presented to me, or whether I should even trust the teachers and administrators to do what was best for my child. I felt hopeless and alone. I firmly believe that no parent should MY LEGAL LIFE - NICOLE HULL The field of special education litigation is not one that many lawyers include among their specialisations, but for students with specialised education needs, it is a service that can be legitimately life-changing. In this feature, we have the pleasure of speaking with experienced special education litigator Nicole Hull, who explores the struggles faced by children and families during the litigation process and how her practice works to achieve the best possible outcome for those with no other recourse. 17 The onset of the pandemic made school districts nationwide vulnerable to pandemic-related special education litigation.
A growing number of parents and guardians are suing schools and state education departments for failing to meet special needs. In your opinion, what reasons are behind this trend? What can schools do to protect themselves from legal action? The onset of the pandemic made school districts nationwide vulnerable to pandemic-related special education litigation as the disruptions in face-to-face learning prevented many students with disabilities from receiving appropriate instruction. As schools pivoted to virtual learning, they were unable to provide all of the special education supports and services that some students require to access the curriculum and receive FAPE. While schools tried to determine how to provide these critical supports virtually, many students with disabilities experienced interruptions in instruction or a complete loss of learning until in-person learning resumed. Once schools returned to in-person learning, students with disabilities expected schools to address the learning loss and denial of FAPE immediately by providing plans for compensatory services and extended learning opportunities. However, as many schools suddenly faced widespread teacher and staff resignation, in addition to debates on whether to require vaccinations and masks for students and staff, and how to address the financial impacts of pandemic learning, students have been forced to initiate litigation to make sure that their right to receive FAPE is not lost in the chaos of pandemic education. Legally speaking, what is the different between an Individualised Education Program (IEP) protected under the Individuals with Disabilities Education Act (IDEA) and a 504 Plan protected under Section 504 of the Rehabilitation Act? When students require accommodations WWW.LAWYER-MONTHLY.COM | JUL 2022 MY LEGAL LIFE - NICOLE HULL 18 The most challenging aspect of winning a special education lawsuit against the school district is understanding the laws and policies that govern special education in your locality and selecting the right set of authority to advance your argument.
to help support them in school, they can either be provided with an IEP or 504 Plan. The differences between the two can be very confusing and making the wrong choice can have a significant impact on a child's education. While both options can provide a student with supports, there are a few key differences that a parent and attorney should consider before deciding which option to pursue for a student. Individualised Education Plan (IEP) Purpose: An IEP provides for specialised instruction and support for eligible students in grades K–12. Eligibility: A student’s educational performance must be “adversely affected” by a disability or diagnosis in one of the 13 disability categories outlined in the Individuals with Disability Education Act (IDEA). Impact on Curriculum: An IEP is an individualised plan that customises instruction to meet a student’s goals and objectives developed by the IEP team. The IEP details the student’s individual academic performance, services, providers, and placement. The IEP is reviewed regularly and amended as needed to assist the student meet the goals outlined in the IEP. Safeguards and Recourse: IDEA provides very specific procedural safeguards to protect the rights of the parent and the child. If a parent believes their rights or the child’s rights under IDEA have been violated, the parent can file a Formal Complaint or Due Process Hearing Request with the Department of Education. 504 Plan Purpose: A 504 Plan does not create a customised learning plan for the student and there is no impact or adjustment to the curriculum. Additionally, there are no goals and objectives in a 504 Plan. Rather, a 504 Plan details the accommodations and supports that a student will receive. Eligibility: A student must have a disability that has a significant impact on at least one major life activity. Impact on Curriculum: A 504 Plan does not create a customised learning plan for the student and there is no impact or adjustment to the curriculum. Additionally, there are no goals and objectives in a 504 Plan. Rather, a 504 Plan details the accommodations and supports that a student will receive. Research has shown that reaching agreement through the mediation process is often faster and cheaper that traditional litigation and produces more satisfactory outcomes. JUL 2022 | WWW.LAWYER-MONTHLY.COM MY LEGAL LIFE - NICOLE HULL 19
SafeguardsandRecourse: Unfortunately, Section 504 does not provide specific procedural safeguards to protect the rights of the parent or the child. If a parent believes their rights or the child’s rights provided under Section 504 have been violated, the parent can file a complaint with the Office of Civil Rights. A large part of your practice includes litigation and conflict resolution practices in the education field. How is conflict resolution used in special education cases? The Individuals with Disabilities Education Act (IDEA) provides the opportunity for exceptional students to receive special education services from K-12. During the processes of determining a student’s present levels of performance, deficits, curriculum accommodations and modifications, related services, and the educational placement for instruction, students and families are required to have several meetings and interactions with schools through a student’s matriculation. When there is not a consensus on what a student requires to access the curriculum, or what services are required to provide a student with FAPE, students and schools often turn to the court system to litigate these matters or file complaints with their State Department of Education. As families and schools continue down a path of contentious litigation, their relationships are often damaged and their trust is so fractured that it prevents cooperation in future meetings, which causes the parties to become lost in a cycle of endless litigation and dysfunction. Fortunately, this pattern has not gone without notice from the Federal and State Departments of Education. These agencies have developed several conflict resolution practices and make them available to schools, students, and families free of charge very early in the litigation process. Facilitated IEP Meetings Facilitated IEP Meetings use third-party neutrals to direct the IEP meeting and keep the conversation focused on a specific set of desired outcomes developed by the meeting participants. Through the use of visual charts and a pre-set agenda, facilitators design a meeting process that ensures productive communication and which often focuses on producing an IEP by the end of the meeting. While the facilitated IEP meeting process can be utilised throughout various points of litigation, the process is most commonly used prior to the actual commencement of litigation to resolve the matter prior to seeking court intervention. Although facilitated IEP meetings often do result in agreement, the use of a facilitator during the IEP meetings is voluntary and does not require the participants to develop an IEP during the meeting; nor does it prevent the filing of a complaint or requesting a due process hearing. However, as research has shown that this is an effective conflict resolution process to diffuse potential litigation, many state Departments of Education encourage participants to attempt to resolve their issues through the use of facilitated IEP meetings and will often appoint a specially trained facilitator to run an IEP meeting at no cost to the participants. WWW.LAWYER-MONTHLY.COM | JUL 2022 MY LEGAL LIFE - NICOLE HULL 20
Mediation Mediation is a process that uses a thirdparty neutral to facilitate negotiations between the students, their families and the schools. Special education mediators are trained in the mediation process and are experts in the special education field. Although the mediators do not make decisions during the mediation sessions, they are able to help all participants keep the focus on the student and gain a general understanding of the issues and interests that are causing disagreement. During the mediation sessions, mediators are able to help participants narrow issues, develop empathy, engage inmutual problemsolving and discover new options for resolution. Research has shown that reaching agreement through the mediation process is often faster and cheaper that traditional litigation and produces more satisfactory outcomes, as participants are able to work together to craft a unique resolution that addresses the unique needs of the student. Although mediation is a voluntary process that participants must agree to utilise, it does not require the participants to reach an agreement during the session, nor does it impede the participants’ ability to move forward with litigation. To encourage participants to attempt to resolve their issues through the use of mediation, many state education departments will offer to schedule a mediation with a specially trained mediator at no cost to the participants. Early Resolution Meetings Once litigation has been initiated, the school is required to invite the student and their family to a resolution meeting aimed at addressing the issues that will be argued at the due process hearing. While the law requires the school to extend the invitation, the student and school can agree to waive the resolution meeting. However, this presents an opportunity for productive discussion and settlement between the student, family, school and other relevant members of the IEP Team. If the IEP Team is able to reach an agreement on any of the issues, it is recorded in a written settlement agreement that is signed by the representative for the local school district, the Local Education Authority (LEA) and the student’s guardians and becomes binding after a short review period. While these meetings can result in a full settlement agreement, they can also be tremendously helpful in narrowing issues and clarifying interests, even if a settlement is not reached during the meeting. What are the challenges of winning a lawsuit against a school district? The most challenging aspect of winning a special education lawsuit against the school district is understanding the laws and policies that govern special education in your locality and selecting the right set of authority to advance your argument. Unlike any other practice areas, special education is regulated by federal laws, state laws and local school policy. Becausemost courts will view educators as the experts in education, it is critical to be able to thoroughly analyse any legal problem and understand the intersection and divergence of special education laws and policies and how to apply them to strengthen your legal theory. Due to the strict timelines imposed by special education legislation, the wrong decision can permanently prevent a successful outcome for a student, as there is often not a second chance at litigation. Another challenging aspect of winning a lawsuit against a school district deals with the relationship between the student, the student’s family, and the school. Because a student is able to receive special education services and supports through K-12, there is a strong likelihood that the student’s family and the administrators in the school district will have to work together for several years to develop and implement the student’s Individualised Education Program (IEP). A fractured relationship caused by mistrust and disrespect will often catapult the IEP Team into a cycle of contentious litigation that will ultimately impact the student’s education. As an attorney, being able to balance the need to advocate for a student’s rights and the need to foster healing between the IEP Team is a skill that few have mastered. While winning inside a courtroom can feel victorious, the best student advocacy focuses on winning the war, not just the battle. While winning inside a courtroom can feel victorious, the best student advocacy focuses on winning the war, not just the battle. Contact Nicole Hull Founder The Hull Firm LLC 3720 Atlanta Hwy Suite 3, Athens, GA 30606, United States Tel: +1 706-388-5330 E: nicole@thehullfirmllc.com www.thehullfirmllc.com JUL 2022 | WWW.LAWYER-MONTHLY.COM MY LEGAL LIFE - NICOLE HULL 21
About Marco Imperiale Marco Imperiale is a lawyer and the head of innovation at LCA, a leading Italian law firm. He has extensive experience in legal design, legal tech and the interplay of copyright law and the entertainment industry. Whenever he finds time, he also works as teaching fellow for Harvard Law School (CopyrightX course) and as a mindfulness trainer. Marco is passionate about innovation in its broader meaning, and he is the author (together with Barbara de Muro) of the first Italian book on legal design, published by Giuffré Francis Lefebvre. About LCA Studio Legale LCA Studio Legale is an independent, full-service law firm that specialises in providing legal assistance to companies worldwide. From its offices in Italy and the United Arab Emirates, LCA’s team of almost 200 professionals works to drive innovation and sustainability in the business world.
From Innovation Innovability Law Firms: JUL 2022 | WWW.LAWYER-MONTHLY.COM the law firm world would soon undergo what happened in the music industry in 1999, when Napster came out. 1999 was a record year for the music industry, but thanks to the emergence of peerto-peer platforms, consumers started perceiving the value of recorded music in a different way, and artists had to change their business model in order to survive. Even now, after more than 20 years and the rise of social media and streaming platforms, data show us that people tend to pay not for recorded music, but for playlists and the services. This means that the 1999 value change was permanent. Well, I believe that the law firm world is facing something similar. Maybe we will not offer our services for free, but tech is posing some serious threats (or challenges) in terms of monetisation and perception of added value arising from our services. Plus, we might find interesting additional revenue streams in lateral activities and dedicated business units. Coming back to my work several years after that career shift, and having experienced both expected elements (investments in contract automation, the rise of legal tech, the impact of sustainability) and unexpected ones (the pandemic, the new normal, etc), I am quite glad I took that risk. What does a head of innovation do in a law firm? This is a very interesting question, For the benefit of our readers who may not have met you yet, please tell us a little about your background. Hi everyone, and thanks for having me here. My name is Marco, and I am an Italian lawyer and the head of innovation at LCA, a leading Italian law firm. My background is a little peculiar. I graduated from Bologna University Law School before starting my career as copyright and entertainment lawyer for a boutique Italian firm. After several years of practice and a number of relevant experiences abroad, I decided to make a career shift, first taking a gap year to do my LLM, graduating fromHarvard School as a Fulbright scholar, and later starting at LCA as the first head of innovation for law firms in Italy. What prompted this career shift? My background in copyright – and my background as a musician – told me that MY LEGAL LIFE - MARCO IMPERIALE The legal sector as a whole is placing ever greater emphasis on technological and systemic innovation as a tool to gain a competitive edge – yet Marco Imperiale, head of innovation at LCA, believes that practitioners are only scratching the surface of what can be achieved. Is it possible that law will see a repeat of the seismic user-centric shift that allowed leading tech companies like Amazon and Netflix to dominate the market? Marco shares his opinion on this, and other insights, below. 23 to The more an innovation is visionary, the less it is quantifiable in terms of KPIs and ROIs – and the less that is quantifiable in KPIs and ROIs, the harder it is to ask for investments
especially because there is not a onesize-fits-all answer. In the most renowned academic article about chief innovation officers (CINOs) in lawfirms, indeed, Michele de Stefano points out what everyone in the field knows: CINOs do different things, have different backgrounds and teams, manage different budgets and reach different goals, because they represent how innovation is driven in a specific law firm. Sometimes they work on legal tech products, sometimes on their implementation, and sometimes they are more into trends and market analysis. I would also stress that innovation is much more than having a head dedicated to the role – like having a chief sustainability officer does not mean that your law firm is sustainable, having a CINO does not mean that your firm is innovative. It takes much more than that. You often speak about “innovability” and not innovation. Could you tell us why? I believe that innovation and sustainability are strictly related, and they represent a perfect match. Something like bread and butter, beer andpretzels, or – for Italians like me – pasta and ragù. Without innovation, a law firm cannot be sustainable; without sustainability, there is no law firm at all. I also frequently stress that if we look at the etymology of the word “innovation”, we can notice that it comes from the Latin in and novare. This means that the root of innovation is looking at things from a new perspective, and (more importantly) that tech is not included. So I believe that innovation should be considered in a broad way, including sustainability, which is – quoting LCA’s managing partner – “the key to guaranteeing the intergenerational survival of the law firm, its identity, and its welfare system, so that it goes beyond the lifetime of its founders and maintains the same professional mission”. What are the experiences of LCA in terms of innovability? We are very committed in highlighting that innovability means innovation of thought. For example, we are among the first in Italy to decide to release a social report, which includes our strategy regarding ESGs, but also takes into account several other aspects (innovation, governance, pro bono, WWW.LAWYER-MONTHLY.COM | JUL 2022 MY LEGAL LIFE - MARCO IMPERIALE 24
etc). Another major step we are taking, thanks to the huge effort of a dedicated team of lawyers, is becoming the first Italian law firm certified for gender equality. We created a venture capital through which we invest in start-ups and established a small office inside H-Farm, the most important Italian incubator. In the Genova office, developers and engineers work together to create legal tech products. The first one is an AI-based, NLP-driven search engine platform for internal documents. We have also offered to our clients the registration of IP assets on a blockchain bitcoin protocol. As you can imagine, I could go on. That said, and apart fromour achievements, we believe that innovability is a matter of human relationships. For this reason, we endeavour to focus on our growth as humans, and not only as professionals. For a young associate, this could mean creating his or her individual career path; for a lawyer with more experience, it could mean incentivising cross-selling and collaborating with a different number of professionals. For a partner, it could be listening and involving the younger generations so that they can have a greater impact and purpose, as well as accountability for their actions. Regarding the latter, I would also stress that we try to invest as much as possible in feedback (in both senses) and bottomup proposals from each member of the firm, whether professionals or PSLs. In an environment which is, by nature, strictly hierarchical, it is a small revolution on its own. What are the main challenges you currently face in your role? Being a lawyer by background but doing a different job from those of most of my peers, I believe that the biggest struggle is in the way my role is perceived. For the firm, how can I sell myself as a value and not a cost (or even an asset)? For the clients, how can I use my skills to make them more satisfied in our services? For the professionals, how can I involve them in my projects without affecting their daily (aka billable) duties? The challenge becomes greater once we shift from tangible to intangible effects. The more an innovation is visionary, the less it is quantifiable in terms of KPIs and ROIs – and the less that is quantifiable in KPIs and ROIs, the harder it is to ask for investments, which not only take into account the monetary part, but also the effort and the commitment of the various professionals involved. That said, I love challenges and I am a gritty-by-nature professional, so my glass is always half-full. You have developed significant experience regarding legal design. Can you tell us more about this? Legal design is a wonderful, unique discipline, which can be defined as the design of legal documents in a usercentric way. This means trying to bring into the legal world the mentality that made successful companies like Uber, Amazon and Netflix by starting from the final user and going backwards. I am very proud in saying that at LCA we are pioneers at an international level, and that I wrote, together with Barbara de Muro, the first Italian book on the matter. In the last few years, we also collaborated with the B Corp Mondora (one of our clients) to create “Design Rights”, the first Italian provider of legal design products, consulting and workshops that counts on the expertise of lawyers, but also graphic designers, design thinkers, psychologists and economists. In the last few years we worked with institutions and multinationals in the fields of telecommunications, food, pharma, banking, insurance etc. Sometimes the trick is not being a good lawyer or a good innovator, but in being in the right place at the right time. JUL 2022 | WWW.LAWYER-MONTHLY.COM MY LEGAL LIFE - MARCO IMPERIALE 25
Although I could speak for hours about legal design, I would stress that its values are even more relevant: diversity of views, inclusivity, MVP-based approach, involvement of the clients, feedback obsession… if the wheels spin, it could represent a Copernican revolution for the legal business. Plus, it is innovation at its core! Do you think that legal design will represent the evolution of the legal profession? That is an interesting question. Legal design is undeniably influencing the way lawyers are exercising their profession, because the idea of having a non-hierarchical, client-centric, MVP-based mindset certainly changes the way we practice. On the other hand, we are still at the embryonic phase of a movement; the examples are still few in number, and there is no agreement – at a market or academic level – regarding either what legal design is or the existence of a common framework. This can have serious consequences on a practical level, because if we think that each lawyer can be a legal designer (maybe because of their experiences with software like Miro or Canva) or if we say that legal design requires, by its nature, the presence of different professionals at the table, it is a very different scenario. Another example could be related to the similarities between visual law and legal design. If we think that legal design is just a bunch of infographics, some colours and the use of a specific tone of voice, or if we say that it is a method which involves steps, a co-creation process and a total focus on the final user, it is a very different story. I have my opinion on that, but one thing is clear irrespective of my thoughts: if we choose a more purist approach, the number of practitioners will be lower and the time to spread the seeds will be greater. If we choose the other way around, we could have a stronger impact in the short term but damage the core and the perception of the discipline. That said, the new normal is bringing more attention to clients, consumers and users, and legal design is certainly a useful tool to strengthen the relationship with them. Furthermore, it is related to several SDGs of the UN 2030 Paris agenda. We tend to consider sustainability in terms of environment and diversity, but what about internal and external communication? Considering your expertise, what do you think are the main challenges for practitioners of the legal profession? I believe that this is an exciting moment to be a lawyer. In addition to rising demand, the new normal is posing several legal challenges; clients tend to perceive us more as business and legal advisors and less as service providers. However, striking the right balance is tricky. We are asked to provide complex legal advice, in a short amount of time, with integrated teams. Sometimes we are also asked “unusual” requests (such as data breach interventions, ESG ratings or AML documentations). This means having dedicated and organised resources, being prepared to handle different types of requests, and working tirelessly on the WWW.LAWYER-MONTHLY.COM | JUL 2022 MY LEGAL LIFE - MARCO IMPERIALE 26 Lawyers’ tendency to be riskaverse forces them to make each project sustainable and profitable, but innovation is a different matter.
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