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Today's many hats interview is with self-confessed social media geek, Steve Kuncewicz, Head of IP and Media at Bermans LLP, a niche commercial firm based in Manchester and Liverpool.
Steve, how did you end up being a commercial lawyer?
Having slogged through the first half of my degree before finally getting anywhere near IP, I fell out of love with the idea of being a lawyer and took a couple of years out to do other things. I wrote two God-awful novels and kidded myself that I had any talent as a creative before finally giving in and breaking into the profession by becoming an accredited Police Station Representative for a large criminal firm in Manchester city centre.
As luck would have it, I ended up dealing with my fair share of trade mark and copyright-related prosecutions and realised that even though breaking into a commercial firm would be tough, I would have felt like I failed until I at least tried to break into IP & Media. After joining Cobbetts in Leeds as a trainee, I never looked back until the opportunity came to go in-house. That was a hugely valuable experience, and hopefully one which will inform the rest of my career and benefit my clients now that I’m back in private practice.
What type of projects are you working on at the moment?
It’s a very varied caseload—lots of defamation issues (so the 2013 Act hasn’t killed the industry as predicted), mainly relating to social media commentary; advising TV production companies on the development of series for national broadcasters; PR agencies on campaigns; lots of content clearance to avoid the ire of the ASA (especially now that their remit covers online and social media communication); and a lot of training for new clients on the potential legal risks involved in social media engagement. I get to be a geek for a living, and variety is very much the spice of my working life.
Share a memorable moment of your career.
Certainly the first time I ended up on BBC Breakfast was an early highlight after being involved in a case involving a competition to win a house which saw the Gambling Commission get involved.
Other than that, the publication of my books on social media and the ;aw was a huge moment as it fulfilled a very long-held ambition. Other than that, my career has a long way to go and hopefully there are a few more to come (for the right reasons…).
What makes a lawyer a commercial lawyer in your view?
An understanding that sometimes there is no perfect solution and a willingness to accept that your remit is constantly shifting to keep pace with a rapidly-changing environment.
Is there a common problem you come across time and time again as a commercial lawyer?
Admin, and keeping up with the SRA’s new approach to regulation. OFR is great in principle, but it has a long way to go before its impact on the profession can be properly appreciated. Most lawyers I know just want to do great work and have an irrational aversion towards all of the other tasks which underpin that advice, but it’s an unavoidable reality that we now need to become better businesspeople for our own and our clients’ sake.
What tips do you have for making legal advice more digestible/commercial for business?
Give two versions of your advice—one with bullet points and the other in detail. That way you’ve covered yourself but not given your client a lecture on the finer points of the area of law which they already know that you’re experienced in. And have an opinion; there’s only so many times that you can tell a client that an issue or key decision is 'a matter for them'.
What advice would you give to someone entering the commercial law arena?
It’s still a great profession and by far the most interesting branch. Business is at the centre of the UK’s economic recovery, and we have an opportunity to help shape that agenda so we should take it seriously but enjoy the process.
Is the profession doing enough to make lawyers truly commercial?
Not in the slightest. We need to embrace secondments wherever we can and truly learn from other sector; that way, we’ll stay valuable and ensure our place at the table. That said, there’s no substitute for developing your own sense of commercial awareness by taking in as much information as you can.
What could we be doing better to train lawyers working at the sharp end of business and commerce?
Incorporating concepts from an MBA or similar course into our education—getting through accounts is not enough. We need to know what makes businesses and entrepreneurs tick. That, and developing an appreciation that lawyers are often not the smartest or most valuable people in the boardroom—we should be involved in conversations but rarely lead them.
Is there a recent development in commercial law that concerns you?
The Orphan Works Consultation in copyright law is potentially of real concern depending upon the outcome of the process, although the Enterprise & Regulatory Reform Act doesn’t (despite protestations to the contrary) allow the world at large to steal imagery from the web and claim that the original author was untraceable.
The recent ECJ ruling in Svensson v Retriever is also very welcome, as it brings the first signs of clarity to when links that aren’t behind a paywall can lawfully be shared online without infringing copyright—the Meltwater v NLA decision was an inhibition to the sharing of links, and given that this underpins the growth of the online environment it was (although legally correct) bad news for one of the most vital areas of the UK’s 'knowledge economy' even if it challenged the few remaining press monopolies in allowing the newspaper industry to monetise the sharing of links to their content.
What are your views on the Defamation Act 2013?
I’ve written a piece for LexisNexis PSL on the new Act, and while it does a lot to re-state common law principles in clear English it’s not the transformative rebalancing of the scales that many in the media wanted. It adds in a few new hurdles to bringing a successful claim by way of the new requirement for 'serious harm', assists the online publishing industry via the new section 5 defence (even if the process for relying on it is pretty tortuous) and protects publishers of archive content by implementing the single publication rule.
Much of it is designed to deter litigation by making claimants gather compelling evidence on liability and quantum rather than making speculative claims and encouraging early rulings on the meaning of defamatory statements without a jury trial. That said, the clear English approach will almost certainly lead to satellite litigation in the short to medium-term while the courts get to grips with the true legal meaning of 'serious harm'.
Who in commercial law and/or the law generally do you most admire?
That’s a pretty easy question to answer. I was very fortunate to have been taught by some truly great lawyers, and I owe my career to Nick Carr, Robert Roper and Susan Hall of Cobbetts/DWF and Jonathan Moakes of Halliwells/Gateley. They’ve all lived (in the Japanese sense of the phrase) through interesting times recently, but as people and lawyers they were huge influences upon my career and life – I can’t speak highly enough of them. Finally, the staff at Manchester Metropolitan University (Jackie Panter, Lyn Jones and Mandy Smith) broke me into the law and got me ready for what was to come; they don’t get anywhere near enough credit for the great work they do.
Which hat do you favour?
Not quite a hat, but the Optimus Prime mask my wife bought me for my 30th Birthday is very cool, especially when worn with a tuxedo to a masked ball. As far as work and my home life goes, I wear enough hats to contemplate a career in millinery, but being a husband and dad are by far the most rewarding.
What do you do to switch off from the day job?
You can switch OFF? When trying to, I’m a movie, music and comics obsessive and a very mediocre guitar player. Otherwise, social media fills up any other free time—I’ve made some great connections and lasting friendships through Twitter in particular.
Thanks Steve and, just for you, a topically transformational quote:
“Fate rarely calls upon us at a moment of our choosing.”
Optimus Prime, Transformers Revenge of the Fallen
We'll be featuring Steve's analysis of the new Defamation Act on Comet next week. In the meantime, if you can't get enough of the man behind the Optimus Prime mask, you can follow Steve on Twitter, @stevekuncewicz
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