Page 125 – Legal Business

26 February 202113 February 2025

In the absence of a fair market value, the corporate valuation must be carried out using a suitable and recognised method and the (tax-relevant) fair market value can be determined in the same way as for wealth tax purposes

As from 1 January 2021, non-listed companies implementing an employee benefit plan will be valued based on the so-called practitioner method ((2x earnings value + 1x net asset value) divided by 3). Depending on the canton, other assessment approaches may also be applicable for companies that meet the qualifications of start-ups. Irrespective of this change in practice, companies can still apply a valuation using their own methodology (eg an EBITDA multiple), provided that (i) the formula plausibly reflects the business model, (ii) it is comprehensible and (iii) it is accepted in advance by the relevant cantonal tax authorities as ‘suitable and approved’. It is advisable to ensure the acceptance of a separate valuation formula by means of an advance tax ruling.

National-wide possibility of a tax-free capital gain after a five-year holding period

As a general rule, both the purchase of employee participations may be subject to Swiss individual income tax. That is, the difference between both the purchase price paid by the employee (if any) and the fair market value constitutes an employee-related benefit and is subject to tax. The same applies, if there is a surplus profit in the event of a sale; ie if the sale price exceeds the value of the employee participation based on the same formula as at the time of allocation and the sales price. The surplus benefit is generally treated as taxable employment related benefit. However, as of 1 January 2021, a holding period applies to the taxation of this surplus benefit:

What previously applied only in the Canton of Zurich now (since 1 January 2021) applies throughout Switzerland. After a five-year holding period, any surplus profit will no longer be subject to Swiss individual income tax. Thus, the entire difference between the value at the time of granting the shares and the latter sales price qualifies as a tax-free capital gain, save for income taxation of violations of an eventual blocking-period in years n6-n10.

This tax exemption for capital gains in principle only applies for sales to third parties. The five-year holding period remains irrelevant for re-sales to the company or its shareholders, and any surplus profit is subject to income tax and social security contributions in the cantons in question.

The change of practice will undoubtedly apply to new employee benefit plans throughout Switzerland. In a perfect world, the same rules should also be applicable to existing employee benefit plans, where employee participations were allocated before 2021. Unfortunately – as a result of the Swiss federal system – this is not (yet) the case. Depending on the canton, there are currently different opinions as to how the new nationally applicable five-year holding period shall apply to existing employee benefit plans. Companies affected will most likely not be able to avoid getting in touch with the relevant cantonal tax authorities to resolve this ambiguity and to be on the safe side.

Shares acquired at third-party conditions or subscribed for during incorporation do not qualify as employee shares

If employees acquire shares of the company at the same terms and conditions as those applicable to third-party investors, their shares do not qualify as employee shares. The same applies to shares acquired by shareholders (so-called ‘founding shareholders’) in the course of the incorporation of the company. Future capital gains realised on such sales are therefore entirely tax-free, irrespective of whether the sale is made to third parties, to the company or to shareholders. However, this requires that no discount due to the blocking period is granted when allocating the shares.

However, other aspects of the tax authorities’ intervention against the tax-free capital gain, such as the qualification of the shares as business assets or the qualification of the employee or founding shareholder as a professional securities dealer, must be considered.

The changes of the practice are highly welcomed. Nevertheless, the effects on existing employee share plans are ambiguous owing to the lack of clear transitional provisions. It is therefore worthwhile for affected employees and employers to consult their tax adviser as early as possible.

FOR MORE INFORMATION

To find out more about Prager Dreifuss’ tax team, contact Lukas Scherer, tax counsel

T: +41 44 254 55 55

E: [email protected]

26 February 2021

The Legal 500 View: The rise of US firms from barbarians at the gate to London’s top tiers

A ten-year analysis of Legal 500 data highlights the ever-growing status of top Global London firms in London, as Georgina Stanley and Ben Wheway explain

The ten largest Global London firms have almost tripled their top-tier rankings in the UK Legal 500 over the last ten years, according to data analysis which highlights their increasing penetration at the top end of the City legal market.

The group (full list below*) have increased their combined number of tier one rankings by 186% from 21 to 60 over the last decade. This compares with a 32% increase in top-tier rankings for the ten largest UK firms by revenue, from 158 to 208. Continue reading “The Legal 500 View: The rise of US firms from barbarians at the gate to London’s top tiers”

26 February 202113 February 2025

Litigating in Israel

Litigation is no exception to the robust expansion of the Israeli market in the last decades. As an increasing number of multinational conglomerates have entered the Israeli market and established a business presence, and while Israeli society and the economy have further matured, the practice of litigation in Israel has had to adapt in order to meet international standards as well as to service local demand and expectations. This change is particularly evident in terms of Israel’s modern and sophisticated procedures as well as with respect to causes of action, international litigation and consumer rights.

Despite its relatively small market size, Israel is one of the very few jurisdictions in EMEA which offers a modern US-style class action. The Class Actions Law 2006 allows for the filing of class actions under various circumstances, using an ‘opt-out’ mechanism, namely, any person or entity that falls under that definition becomes a member of the class, unless they provide a withdrawal notice (while the court is allowed, under special circumstances, to apply an ‘opt-in’ mechanism). The filing of a class action is subject to the court’s approval and discretion, and is subject to meeting several conditions: (1) the action must raise material questions of fact or law that are shared by all members of the class; (2) there must be a reasonable possibility that the legal or factual questions will be decided in favour of the class; (3) a class action must be the efficient and fair way of resolving the dispute under the circumstances of the case; and (4) there must be a reasonable basis to assume that the interest of all members of the class will be represented and managed properly and in good faith.

Israeli law further offers modernised consumer rights regulation. The Consumer Protection Law 1981 imposes various obligations towards consumers who purchase products or services for personal, family or domestic use. This raft of obligations include a prohibition on misrepresentation, duties of disclosure, duties concerning product labelling, special regulation on autorenewals, cancellations and refunds, and other types of duties and prohibitions. It contains various post-sale duties, mainly with respect to warranty periods and terms; repair of defects; technical service and more.

The combination of sophisticated consumer rights regime and the availability of class actions has led to a substantial increase in the number of consumer rights and product liability cases as well as to the significant development of case law on consumer rights, duties of disclosure, duty to warn, product labelling, competition issues, data protection and other matters.

The Israeli Supreme Court ruled in 2018 in Re Facebook that a jurisdictional provision in a uniform contract with Israeli consumers referring to a foreign jurisdiction (in the foregoing case – US and particularly to California) is an unconscionable provision and hence unenforceable, while a provision which applies foreign law is not necessarily such. Foreign companies providing products or services to Israeli consumers should therefore assume that a class action may be filed against them by a class of Israeli consumers and would be adjudicated in this jurisdiction (either pursuant to foreign law or otherwise).

Issues to be Aware of

Against the foregoing background, foreign companies providing products or services to Israeli consumers or having business dealings with Israeli entities should be aware of certain legal risks associated with this jurisdiction, inter alia:

- Israeli courts may exercise jurisdiction over a foreign entity even if it did not and established a business presence in this jurisdiction.
- Israel does not use juries at all and all questions of fact and law are decided by professional judges and justices.
- The general statute of limitations in Israel is seven years (excluding some limited exceptions) and it applies as the law of the forum regardless of the persons or entities involved.
- Israeli courts may entertain a motion to certify a class action against a foreign entity on behalf of a class of Israeli customers and it may be deemed to be the appropriate forum for such proceedings.
- Israeli courts may apply Israeli law to disputes with a foreign entity, and may exercise the presumption that a certain applicable foreign law is similar to Israeli law.
- Israeli courts may apply Israeli completion laws with respect to actions by foreign entities that took place outside of Israel (such as intentional cartels, to the extent they had a direct impact on competition in this territory).
- Israeli law recognised some type of damages and injuries which are not commonly recognised in other systems including pure financial damages and indirect damages.

In cases where a multinational conglomerate is litigating in Israel, there is a level of expectation to receive the highest quality of legal service and attorney attention that matches other jurisdictions, particularly the US or EU. Both the Israeli legal market in general, and our firm in particular, has adapted to this high standard.

For more information, please contact:

Ruth Loven, partner, litigation practice

Yigal Arnon & Co
1 Azrieli Center
Tel Aviv 6702101
Israel

T: +972 3 608 7901
E: [email protected]

www.arnon.co.il

26 February 202113 February 2025

Sponsored briefing: Israel: Litigation and dispute resolution 2021

Tadmor Levy & Co’s Yechiel Kasher and Sivan Wulkan-Avisar answer questions on how the litigation and disputes market functions in Israel

What type of legal system does your jurisdiction have? Are there any rules that govern civil procedure in your jurisdiction?

Israel has an independent, adversarial legal system, modelled on the Common Law tradition.

How is the civil court system in your jurisdiction structured? What are the various levels of appeal and are there any specialist courts?

Israel’s court system is divided into three tiers: Magistrates’ Courts, District Courts and the Supreme Court. The former are trial courts and appeals over Magistrate Court decisions are submitted to District Courts. The Supreme Court is an appellate court (also functioning as the High Court of Justice). There are no juries in Israel. Israel also has unique tribunals established by law, inter alia, the Antitrust Tribunal, military tribunals, religious courts, family courts, labour courts and administrative courts.

What are the main stages in civil proceedings in your jurisdiction? What is their underlying timeframe?

A civil proceeding is initiated by the filing of a statement of claim, following which the defendant has the right to file a statement of defense within 60 days, and to which the plaintiff has the right to file a rejoinder within 30 days.

Are there any particular rules about funding litigation in your jurisdiction? Are contingency fee/conditional fee arrangements permissible?

According to the Bar Association Rules (Professional Ethics), 5746-1986, lawyers are forbidden from providing loans or other benefits to their clients (ie, to fund the litigation). Contingency fees are allowed under said rules.

Are there any constraints to assigning a claim or cause of action in your jurisdiction? Is it permissible for a non-party to litigation proceedings to finance those proceedings?

Per the Tort Ordinance: assigning a claim is forbidden unless it has been explicitly allowed (said rule refers only to tort claims). The Supreme Court has established various exceptions to this rule, the most significant being assigning a tort claim on the grounds of contractual context. There is no legal limitation over a non-lawyer litigation funding, although this practice is uncommon.

Is there any particular formality with which you must comply before you initiate proceedings?

Generally, there is no formality with which parties must comply prior to initiating proceedings. However, there are exceptional procedures with unique requirements, such as remedies exhaustion when required or a warning letter prior to the submission of a class action.

How are civil proceedings commenced (issued and served) in your jurisdiction? What various means of service are there? What is the deemed date of service? How is service effected outside your jurisdiction? Is there a preferred method of service of foreign proceedings in your jurisdiction?

Proceedings begin with the serving of the statement of claim and a summons to the defendant. Regulation 162 states that the first pleading can be served either by post or in person. Service outside jurisdiction requires the plaintiff to apply to the Court to obtain a permit for service of process outside the jurisdiction. Regulation 166 elaborates on the circumstances under which this type of permit is granted.

Is there any particular case allocation system before the civil courts in your jurisdiction? How are cases allocated?

There are two types of Court jurisdiction: material and local. Both bind the litigants. There are six judicial regions, each with a single District Court and several Magistrate Courts. Magistrate Courts within each District have parallel authority. If no District has jurisdiction, the case would be allocated to the Jerusalem District Courts. The geographical factor (eg, a land-dispute involving a real-state in Tel Aviv would be brought to the Tel Aviv Court) would play a role when allocating the case between districts, based on specific rules. Materially, claims exceeding ILS 2.5m are brought directly to a District Court, while claims below ILS 2.5m are brought to the first tier, Magistrate Courts). For other matters, cases are heard in accordance with the matter in question, (eg family matters are brought to family court, an antitrust issue with the Antitrust Tribunal and so on.

Do the courts in your jurisdiction have any particular case management powers? What interim applications can the parties make? What are the cost consequences?

Courts have broad discretion regarding how proceedings will be managed. The president of each Court appoints the presiding judge who will hear the case. In cases where requests have been discussed as part of the main proceeding, the Court would impose costs regarding these requests at the final verdict.

Do the courts in your jurisdiction have the power to strike out part of a statement of case or dismiss a case entirely? If so, at what stage and in what circumstances?

Courts have the power to strike out a statement of claim (either with or without res judicata) or part of it, at any stage of the proceeding due to lack of cause of action, inaction, vexatious statement of claim, consistent incompliance with the Regulations or court order, res judicata, limitation or for any other reason at the court’s discretion. The Court also has general discretion to strike out pleadings, either as a whole or specific parts, due to abuse of process.

What are the basic rules of disclosure in civil proceedings in your jurisdiction? Is it possible to obtain disclosure pre-action? Are there any classes of documents that do not require disclosure? Are there any special rules concerning the disclosure of electronic documents or acceptable practices for conducting e-disclosure, such as predictive coding?

Civil proceedings’ disclosure consists of document discovery and production (with their production) and questionnaire. Following the filing of the final pleading, the litigants are required to replace affidavits regarding the list of documents relating to the disputed matters, which are or were in the possession or control of the litigant and which the litigant located after inquiry and demand. If the document is no longer in the litigant’s possession or control, it should also specifically detail the circumstances. The document review procedures will be completed no later than 30 days before the first preliminary hearing. There are no special rules regarding disclosure of electronic documents.

What are the rules on privilege in civil proceedings in your jurisdiction?

Absolute privilege: concerns situations in which the Court has no discretion as to whether to maintain privilege and refers mainly to two situations: client-attorney and clergy–penitent privileges. Partial privilege: concerns situations in which the Court was granted the discretion to remove the privilege (eg, physician–patient privilege, journalists). The removal of privilege will be done while balancing the interests at stake – exposing the truth and the reasons that justified privilege in the first place.

What is the court’s role in disclosure in civil proceedings in your jurisdiction?

By default, the parties exchange documents without the Court’s intervention. However, a party that seeks the disclosure of a specific document should submit an adequate request to the Court. The legislature specifically recognises the importance of adequate disclosure and review procedures, and that it constitutes a basic condition for an adequate and fair judicial procedure. If the court determines that a party has not properly fulfilled its obligation under the New Regulations, the Court can issue orders requiring disclosure or response to questionnaires, as well as impose expenses and in special cases, even have the pleading dismissed.

What are the basic rules of evidence in your jurisdiction?

As Israel has an adversarial legal system, main testimonies are heard verbally or by an Affidavit of evidence in chief, and the opposing party has the right to cross-examination.

What types of evidence are admissible, and which ones are not? What about expert evidence in particular?

As a rule, any relevant evidence is admissible. Nevertheless, there are several exceptions to this rule, such as hearsay evidence and privileged documents. Expert medical opinions shall be annexed to the statement of claims. A non-medical expert opinion shall be submitted to the Court no later than 90 days prior to the date of the evidential hearing (or at a date determined by the Court).

Are there any particular rules regarding instructing expert witnesses, preparing expert reports and giving expert evidence in court? Are there any particular rules regarding concurrent expert evidence? Does the expert owe his/her duties to the client or to the court?

Expert opinions may only be submitted in writing. Each party is entitled to submit an expert opinion on his behalf. There is no limitation to the overall involvement of the commissioning lawyer in the preparation of the opinion. Still, the absence of such a prohibition does not allow the submission of an opinion that is, in fact, of the commissioning attorney who commissioned the lawyer – and the underlying issue of the expertise which is the subject of the opinion remains with the expert. The court has the authority to appoint an expert on its behalf to assist in questions of expertise. It seems likely that this practice will become more commonplace under the New Regulations. There are some legal fields in which appointing an expert on behalf of the Court is a somewhat perfunctory step with substantial influence on the proceeding. Expert witnesses are warned of the legal implications of misleading the Court, it can reasonably be assumed that they owe their duties to the Court itself, rather than the summoning party.

What powers do your local courts have to make rulings on damages/interests/costs of the litigation?

The default is to impose costs on the winning party. In practice, costs are estimated by the Court and the sum ruled is generally less than the real actual expenses. The Court has the authority to add a monetary interest with linkage differences to the judgment. Non-adjudication of interest and linkage differences is an exception. Generally, it is impossible to claim damages for the mere filing of a claim or the conduct of a defence (except for damage caused by a temporary interim order, if the claim was eventually rejected).

How can a domestic/foreign judgment be recognised and enforced?

A foreign, civil, and operative judgment can be enforced in Israel. The enforcement is via the legal procedure, and the conditions set in the Enforcement Law. Recognition of foreign judgments – ie, the adoption of a legal determination not by way of enforcement (for instance for the purposes of estoppel by record). It is secondary to the other proceedings and subject to certain conditions.

For more information, please contact:

Yechiel Kasher
[email protected]

Sivan Wulkan-Avisar
[email protected]

Tadmor Levy & Co.
Azrieli Center, The Square Tower, 132 Begin Rd., Tel Aviv, 6701101, Israel
Tel: +972-3-684-6000
Fax: +972-3-684-6001

www.tadmor.com

26 February 202113 February 2025

Diversity

With respect to gender equality, Israel’s 70,000 lawyers are split almost equally between male and female. In fact, Israel has four female Supreme Court judges – surpassing the number in the UK, whose own first female president, Baroness Brenda Hale, was appointed only in 2017. By then, Israel was about to start on its third female president, with its first, Dorit Beinisch appointed in 2006. Furthermore, by this point, Israel had already appointed two female Ministers of Justice: Tzipi Livni – serving three times – and more recently, Ayelet Shaked in 2015.

Innovation in the Start-Up Nation

The country is an attractive destination, mostly due its principal export: the innovation of its hi-tech sector. Israeli start-ups raised a record monthly figure of over US$1.2bn in January 2021, according to press releases from the companies and their investors. Israeli tech companies raised a record US$10bn+ in 2020, according to IVC-ZAG, up from US$8.3bn raised in 2019, and US$6.4bn in 2018.

In many instances, financing rounds by tech companies that facilitate remote working and healthcare and cyber security, have been boosted rather than hampered by the Covid-19 pandemic. For example, in response to the Covid-19 pandemic, organisations around the world had to quickly mobilise and move to remote work platforms. Israel is at the forefront, with respect to the cyber industry.

Opportunities in the Middle East and North Africa

It is technology that has been at the forefront of recent exciting developments with the United Arab Emirates (UAE) and Morocco. Last year’s landmark agreement formalising ties between Israel and the UAE has investors and entrepreneurs flush with genuine excitement and in October, Israel and the UAE announced the creation of a new trilateral fund – the Abraham Fund – with the US, potentially worth more than US$3bn. In addition to cyber, defense, healthcare, AI, while in the field of smart transportation, Israel’s Mobileye announced a strategic partnership with the UAE’s Al Habtoor Group (AHG) to begin setting up the infrastructure to test autonomous vehicles in Dubai. After the UAE, Morocco became the fourth country in recent months to normalise relations, opening up opportunities in food, agri-tech and desert agriculture, as well as solar and wind energy.

Israel Law Firm Rankings Table 2021*

* Disclaimer – the table was derived from size, quality of work (according to The Legal 500 rankings) and cross-border capabilities.

26 February 2021

Access your print copy online – LB300

While much of the country works from home we are providing more options for you to access your copy of Legal Business. Please see below for links to a limited version followed by a complete version. The complete version is only accessible to subscribers. Please make sure you are logged into the site to see the link.

Limited version Continue reading “Access your print copy online – LB300”

26 February 2021

LB300 – issue menu

Continue reading “LB300 – issue menu”

24 February 2021

Coronavirus measures pay off for Reed Smith as revenue tops $1.3bn while profit soars

Despite starting the financial year by reducing partner drawings in response to the pandemic as well as other cost-cutting measures, Reed Smith has unveiled a respectable set of results that saw global revenue rise to over $1.3bn.

Overall revenue increased 5% from last year’s $1.25bn to $1.31bn this time around, while revenue per lawyer jumped 4% from $778,000 to $811,000. However there was a striking 16% uptick in profit per equity partner (PEP) from $1.3m to $1.5m which, combined with the firm’s 48 lateral partner hires in 2020, underlined the robustness of the results. Continue reading “Coronavirus measures pay off for Reed Smith as revenue tops $1.3bn while profit soars “

24 February 2021

Revolving doors: Linklaters senior partner candidate replaces Moriarty at Diageo as accountancy GC lands at Clydes

There was an in-house flavour to this week’s recruitment round, while Addleshaw Goddard, Davis Polk, Paul Hastings and Faegre Drinker Biddle & Reath all made key partner hires.

Linklaters has lost its partner and global US practice head Tom Shropshire (pictured), as he departs to take over the GC and company secretary position at multinational beverage company Diageo, recently vacated by the long-serving GC Powerlist member Siobhán Moriarty. Moriarty announced her intention to retire last September after more than 24 years of service. Continue reading “Revolving doors: Linklaters senior partner candidate replaces Moriarty at Diageo as accountancy GC lands at Clydes”

22 February 2021

Guest comment: Balancing acts – partnership versus corporation

Professor Laura Empson and David Morley ask what makes partnerships so distinct from corporations in what they demand of the people who lead them

Immerse yourself in a strong and successful professional partnership, even for a short time, and it becomes clear that these are unique entities requiring a very distinct kind of leadership. Continue reading “Guest comment: Balancing acts – partnership versus corporation”

22 February 2021

‘Huge implications’: employment experts assess fallout from Supreme Court ruling against Uber

In a Supreme Court judgment with potentially profound implications on the future of the gig economy, it was held that Uber drivers are workers entitled to full employment rights.

The Supreme Court unanimously ruled on Friday (19 February) that under the Employment Rights Act 1996, Uber drivers are full employees and therefore in line to receive the national minimum wage, annual leave entitlements and other legal protections afforded to workers. Continue reading “‘Huge implications’: employment experts assess fallout from Supreme Court ruling against Uber”

19 February 2021

Baptism of fire: New Hogan Lovells chiefs unveil record results as PEP nudges $2m

Taking the helm of a global law firm is no small feat at the best of times, much less so amid a global pandemic. However Hogan Lovells’ chief executive Miguel Zaldivar and his deputy Michael Davison, who assumed their roles last summer, had cause for cheer as the pair revealed a solid set of financial results, including a 31% surge in profit per equity partner (PEP) to $1.97m from $1.5m in 2019.

Global revenue grew a more sedate 3% to $2.3bn in 2020 compared with $2.25bn the previous year and revenue per lawyer (RPL) rose 4% to $884,000 from $850,000. Geographical performance has been broadly in line with last year’s output, with the Americas accounting for roughly 49% of total billings, EMEA 45% and Asia-Pacific 6%. Continue reading “Baptism of fire: New Hogan Lovells chiefs unveil record results as PEP nudges $2m”

18 February 2021

‘Growth in the offing’: Cooley’s City turnover hit by IP team exit as PEP tops $3m

Cooley’s London office has suffered a 4% revenue drop following the loss of its intellectual property team amid a striking 25% surge in PEP to $3.2m and strong financials globally.

The results revealed London turnover fell to $70.3m from $72.9m in 2019 – a reversal after a 9% increase last year marked a third consecutive year of revenue growth . Continue reading “‘Growth in the offing’: Cooley’s City turnover hit by IP team exit as PEP tops $3m “

18 February 2021

Diversity guaranteed in Linklaters senior partner race as Jacobs takes JP Morgan role

Charlie Jacobs, senior partner, chairman and rainmaker of Linklaters has taken the road less travelled for outgoing law firm leaders, landing himself the role of co-head of investment banking at JP Morgan.

The audacious move will see Jacobs (pictured), who in January announced he was leaving the Magic Circle firm in October after 30 years, replace banking industry stalwart Ed Byers as he is promoted to the solely client-facing role of vice chair of UK investment banking. Jacobs will join existing co-chair David Lomer in the dual role. Continue reading “Diversity guaranteed in Linklaters senior partner race as Jacobs takes JP Morgan role”

17 February 2021

Revolving doors: A&O makes Manhattan finance move as Slaughters sees rare partner departure

Allen & Overy (A&O) has made a significant US leveraged finance play by hiring a partner from White & Case, as a host of firms added to their benches internationally.

Jake Mincemoyer has been appointed head of A&O’s US leveraged finance practice in New York, having previously led White & Case’s Americas banking department. He brings experience in all aspects of the leveraged lending market, and spent several years in White & Case’s London office. Continue reading “Revolving doors: A&O makes Manhattan finance move as Slaughters sees rare partner departure”

16 February 2021

Rude health: White & Case City revenue soars 18% and PEP cracks $3m to defy Covid

White & Case has traversed the pandemic minefield to reveal its strongest City financial results yet, with the London office increasing revenue by 18% in 2020 to $397m from $337m in 2019.

The pacey London showing comes against a backdrop of global success and proved something of a resurgence, given disappointing results in 2019 when City revenue dropped 4% amid subdued global turnover growth of 7%. Continue reading “Rude health: White & Case City revenue soars 18% and PEP cracks $3m to defy Covid”

14 February 2021

Finnegan FORWARD

For quite some time now the legal profession has acknowledged that more needs to be done to develop female talent, and there has been much discussion about women in the law. Having those conversations is a great start, but the practical piece is often missing. We wanted to develop a programme that would have a real impact on the lives and careers of female attorneys. What we have started with Finnegan FORWARD, and what we will continue to develop over the coming months, is a set of tools and resources that will help women advance their careers.

As science and engineering professionals, we are aware that women in STEM-related areas of law face a number of obstacles to career progression. Therefore, we were interested in finding ways to move the needle when it comes to our diversity and inclusion initiatives.

When we sat down to plan the Finnegan FORWARD initiatives, we wanted to make sure our female attorneys were given a clear path to partnership. The first step was to identify the practical barriers women face in the legal profession. One consistent challenge female attorneys face, both within their firms and when developing relationships with clients, is how to best market themselves. As a generalisation, women tend to downplay their experience. If a female attorney is not, for example, comfortable listing her relevant experiences or is not certain that her experiences are relevant to a particular matter, it can result in her being missed in a pool of candidates. It takes conscious effort to routinely think about everything you’ve done and been exposed to, but that is a helpful practice if you want to be more visible within a firm.

No one in this firm is ever going to overlook a qualified female attorney, but they may not see that there is a suitably qualified attorney available. We are encouraging women to put their hands up for a role on the team so that they are best positioned to get more opportunities within the firm.

Junior lawyers may sometimes assume that because they haven’t worked on a particular type of matter for 20 years they don’t have the necessary experience for a particular matter; and not every lawyer knows how to best present their experience and expertise in a particular area and how it may be beneficial to a team. Often, clients want lawyers who have approached problems from a variety of angles and who bring new and creative solutions to the table. At Finnegan FORWARD, we run programmes that help lawyers better understand how to interpret the experience they have and what qualifies as experience for a particular matter.

The other big issue we wanted to address is how female lawyers can improve their visibility with clients. Successful lawyers have inevitably developed a book of business – they have clients who have worked with them before and who trust them. These relationships of trust are foundational to a partner’s practice, and helping lawyers form those reputations is an important to their career development. We are working hard to make sure our more junior female attorneys have opportunities to network, or to spend time with mentors who can help them along that path. We are also helping female attorneys carve out a niche practice, whether by helping them publish and gain a reputation as subject matter experts, or by nominating them for awards that highlight their strengths and offer them the same exposure and recognition as our male attorneys receive.

The reason we are committed to this is to help women, but as with all D&I initiatives, the positive outcomes go far beyond that. Clients want to see diverse teams because they know those teams deliver better results.  We have a large talent pool to draw on, which is great for our partners, and we are putting together more diverse, stronger teams.

As a firm, Finnegan tends to be very collaborative when it comes to business development. We also like to keep an open dialogue with our clients or potential clients about how we can do things better together. This is particularly true when it comes to D&I; GCs and legal teams have been on this journey far longer than law firms so we welcome their ideas and perspectives.

12 February 2021

Dealwatch: Elite firms land $4.7bn Signature Aviation deal as Euro SPAC market expects to fly

Private equity heavyweights gained major mandates as the bidding war for Signature Aviation took a riveting twist, while the US-driven special purpose acquisition companies (SPAC) craze looks set to take off outside the States.

Kirkland & Ellis, Slaughter and May, Cleary Gottlieb Steen & Hamilton and Linklaters acted on the proposed take-private of Signature Aviation by a consortium – Brown Bidco – including Blackstone, Cascade and Global Infrastructure Partners (GIP). Continue reading “Dealwatch: Elite firms land $4.7bn Signature Aviation deal as Euro SPAC market expects to fly”

11 February 20213 June 2025

May it Please the Court—Maximizing Black Attorneys in the Courtroom: A Judge’s Perspective

The eight minute and forty-six second murder of George Floyd that we all witnessed in 2020 opened America’s eyes to acknowledge systemic racism. The aftermath reignited conversations around racism, discrimination, and implicit bias in the workplace. The legal profession has used this time as an opportunity to train staff and attorneys, reaffirm policies against workplace discrimination, and increase diversity initiatives. These acts are indeed necessary. But behind the cloak of formal policies remains the deep-rooted implicit bias and microaggressions directed toward black attorneys every day, especially when it comes to staffing cases and providing opportunities to take on lead roles in important matters.

There is no doubt that systemic racism and implicit bias exist in the legal profession. Several years ago, for example, a study conducted by the consulting firm, Nextions, provided empirical evidence of implicit bias against black attorneys. Two versions of a legal memo containing the same number of errors were circulated to law firm partners participating in the study. The only difference between the memos was that the participants were told that one was drafted by a white associate and the other a black associate. The exact same memo averaged a 4.1/5.0 rating for the white associate’s memo accompanied with encouraging comments such as “generally good writer but needs to work on …,” “has potential,” and “good analytical skills.” The black associate’s score? He averaged only a 3.2/5.0 rating accompanied by more negative feedback: “needs lots of work,” “can’t believe he went to NYU,” and “average at best.”

Aaron Gleaton Clay | Associate | Finnegan

Is this same implicit bias diminishing black attorneys’ role on cases? Opportunities to lead and try cases or argue motions before courts are critical for any attorney’s professional development and advancement. And while these opportunities are hard to come by for younger associates, in large part because senior and more experienced partners are slated, or because such decisions are largely driven by client demands, these opportunities seem even rarer for black attorneys, especially young, black associates. As a law clerk at both the federal district and appellate court levels, I witnessed how black attorneys were rarely given a speaking role in motions hearings, trials, or oral arguments. Some of this I attributed to the alarmingly low numbers of black attorneys in major U.S. law firms. Indeed, in 2020, the National Association for Law Placement (“NALP”) reported that only 5.1% of associates and only 2.1% of partners in U.S. law firms are black. These numbers were worse for black women who made up only 3.04% of associates and 0.8% of partners! But even with these low numbers, I wondered if there was more to the story. Why is it that black counsel has a “seat at the table” but not a lead, speaking role? Is it not important to provide these opportunities to black attorneys who not only need the experience but can add value to the case? Does the court or the jury take notice of this disparity? If so, what can we do to fix it?

To answer some of these questions, I interviewed the Honorable Gerald Bruce Lee, retired U.S. District Judge of the United States District Court for the Eastern District of Virginia, for his view from the court’s perspective. Over the course of his more than 25 years on the federal and state benches, as well as his prior experience as a trial lawyer, Judge Lee has encountered more than his fair share of attorneys and firms and has seen first-hand how younger, and arguably more knowledgeable, attorneys are “benched,” particularly black attorneys. In his view, “systemic racism is the answer; it remains a problem.”

We must “be very conscious of systemic racism that exists,” Judge Lee said, and “we have to end the ‘mirrortocracy.’” In other words, we must stop choosing to only work with someone who looks like us. Judge Lee suggests that firms and partners “pick a black associate that you want to work with and put that person to work. Give them the same coaching and mentorship that you would give someone that looks like you,” he said. Not just on one case either, he said, “work with them on 10 cases and see what happens.”

And “it’s not just for social justice reasons,” Judge Lee added. “We are creators, we are innovators, and we can think outside the box, and you need to give us a chance to do that and improve the quality of work that is being done and to create the results that are being attained.” Judge Lee said that judges “think young, black associates have ideas” because “young, black associates have had to improvise and have had to learn how to think creatively on their feet.” To him, “it seems that to have someone as gifted and talented as some of these young, black associates are, who have overcome many obstacles and have many good insights, and not to use them is like wasting resources that you’ve acquired.” He asked, “Why would you waste resources? Put your resources to work.”

Judge Lee “enjoys seeing young, black lawyers come into court who are doing more than carrying a briefcase” because he knows that “if the black attorney’s name is on the brief, then there has been some opportunity for the lawyer to communicate to the partner about the brief.” But many black lawyers are not being given a chance to argue cases, which contributes to a lack of preparedness and the professional development they need to become partners. Judge Lee is not alone in his eagerness, noting that “black and white judges want to see young, black associates at the podium, questioning witnesses, and arguing motions.” “It is time to get your black attorneys off the bench and in the field. What better time than now to acknowledge that you are going to fully use your black associates and partners?,” he asked.

Giving black attorneys more leading roles in the courtroom can also have a positive impact on the case. Judge Lee emphasized that “the days of all white judges and juries are over.” When asked what effect black attorneys have on the jury or the court, Judge Lee said, “the first thing it adds is talent and resources,” but he added that “it could also make a difference in how the jury reacts to the trial.” For example, he said, “if a jury sees a black lawyer sitting there and there are minorities in the jury and they only see that person pass paper, then they know that person is ‘window dressing.’” And from the court’s perspective, he said, having black attorneys in lead roles can also “make a difference in how I view the case from the standpoint of how it was managed and the case was being presented.”

I asked Judge Lee for any final advice for black attorneys looking for opportunities to improve and expand their skill set. He suggested that we continually seek out the work we want and “be persistent.” As a young lawyer, Judge Lee always told himself that the answer “no” was just “the beginning of the conversation, not the end of the conversation.” If partners or clients turn you down the first time, he said, use that as an opportunity to follow up again until they say “yes.” Eventually, he said, “they’ll get tired of you and give you the work.” Use that opportunity to thrive.