Leaving the Locker Room

This will be my last Lawslot Redux post as a practising lawyer.

In less than a week I change roles, leaving the world of corporate transactions – a world I have known for some 36 years – to focus on client relationships and client development. I will still keep my practicing certificate (and I have been assured that I will remain insured) so technically I will still be a lawyer – but without transactions it will not be the same.

Not surprisingly this change has led me to reflect on my career – far too much reflection, according to my children, who believe they should have a monopoly on introspection. But don’t worry, I am not going to go there in this post. But what has struck me is that notwithstanding how the legal profession has changed in my professional lifetime – and is still changing – the same cannot be said for the actual day job. This has changed very little in 36 years. There is no doubt that that the means of doing is different: back in the day we had no email, no fax, no PCs. Everything was typed (and then copy typed), drafts travelled (marked, and occasionally butchered, in precise colour order, with riders stapled, or stuck on with Sellotape), calls were landline, and you still dialled a number. Even if there wasn’t, there seemed a great deal more time.

But transactions, and our role in them as lawyers, have remained pretty well unchanged: same documents, same issues, same arguments (just a different generation of lawyer doing the arguing), same tensions . . . and same excitement. Each transaction the same in its essentials, each different in its particulars.

And it is the excitement that has kept me working – this is what I know that I will miss, but, as my last post, the time comes for us all.

In the landing flight path

A week into the New Year and it has been relatively quiet in the office. Clients seem to be taking stock, and projects and opportunities we discussed in the closing weeks of 2011 remain to be taken forward. It may the calm before the storm, but it has allowed time for some gentle housekeeping, and in particular sorting through and sorting out those old newspaper cuttings and articles I have squirrelled away.

These days it is much easier to store and retrieve on-line content (although given the number of apps I have used over the past few years – Instapaper, Evernote, Delicious and FT Clippings – the challenge is remembering which one: or did I just tweet the link?). But in my pre-digital life I was an avid clipper of anything that caught my eye, and the deeper recesses of my desk drawers are home to bundles of cuttings, yellow edged, and for the most part well past their sell by date.

But not all. As with any housekeeping, part of the pleasure is in finding things you had lost, or reminding yourself of things that you had forgotten. Given that this is the year in which I will change roles and leave the world of corporate transactional work, it was instructive to re-read one of Luke Johnson’s FT Columns, Learn to tame the ravening beast, ambition – and in particular his final paragraph,

Is there a moral in all this? I suppose it is that we must each know our limit, and resist the urge to overreach. Ambition is a ravening beast that must be kept in check, because even if we do not all formally retire, one day every one of us has to surrender. Better to go with dignity and grace than have the booty snatched from our enfeebled grip because we cling on too long.

Well, it has not quite come to this. Yet.

A wheelbarrow of frogs

The recent stories of senior City partners and their expenses are not very instructive, although perhaps we should not be so surprised – either at their behaviour or the reaction of their fellow partners. Lawyers are imperfect at the best of times.

What is far more interesting is what this says about managing partner risk in professional service firms, and in particular in law firms (we don’t share quite the same world view as accountants, architects and others).

The crux of the problem is the tension between a firm’s need to manage its partners and the fact that they are “highly educated individuals who require a large degree of autonomy and discretion to be able deliver very personal and highly tailored services to clients” – the quotation is from Too Many Chiefs, a study on decision making in professional service firms by Tim Morris, Professor of Management Studies at Oxford’s Säid Business School.

The problem with autonomy and discretion is not just the sense of ownership entitlement that so often accompanies them, but the risk of partners pushing boundaries when they can (and when they actually see them!). And to compound the problem, this type of behaviour is often culturally acceptable to fellow partners.

And going back to the expenses stories, don’t miss the on-line comments: I particularly liked this from Anonymous on the report in The Lawyer on Hogan Lovell and the allegedly errant Christopher Grierson,

The way that this has been dealt with, and the fact that the police have still not been involved, has simply confirmed my view of City firms as moral vacuums dominated by sociopaths.

I am not sure about the moral vacuum bit, but that anonymous commentator must surely have been reading a 2009 post by Venkatesh Rao (Venkat) in ribbonfarm.com, The Gervais Principle, Or The Office According to “The Office”, in which he identifies the “sociopath” layer as comprising ‘the Darwinian/Protestant Ethic will-to-power types who drive an organization to function despite itself’ and then states the Gervais Principle,

The Gervais Principle is this: Sociopaths, in their own best interests, knowingly promote over-performing losers into middle-management, groom under-performing losers into sociopaths, and leave the average bare-minimum-effort losers to fend for themselves.

So now you know.

And why a wheelbarrow of frogs? I once heard Nigel Knowles describe managing his partners as akin to pushing a wheelbarrow of frogs uphill in the rain.

Countdown to a new dispensation

An interesting piece in this morning’s FT by Jane Croft, Legal firms set for ‘Tesco law’, based on a recent survey by Smith & Williamson on whether, and to what extent, the top 100 law firms will use the deregulation of the legal services sector to raise external finance.

What is clear from this survey is that the top end of the legal market is preparing to take advantage of the Legal Services Act and, if the rumour mill is to be believed, so too are the external providers – whether Tesco, the AA etc. None of this is surprising.

But what about the “squeezed middle”? (Not mentioned by Smith & Williamson).

In my previous Lawslot Redux post, now six months old, I said that in the hurly-burly of practice it is sometimes difficult to take time out to think about what may be needed. I might also have added that the current economic environment is making fee earning work an imperative (no time for posts).

Yet as Giles Murphy of Smith & Williamson notes,

The provision of legal services will change radically in the next five years with consolidation, external capital, new entrants and mergers with other professions; those who are best prepared will be in a strong position to take advantage.

He is talking about using external finance to develop and grow faster than your rivals. And competitive advantage may be obtained in any number of other ways – but I am not convinced that the profession as a whole has yet come to grips with what the Legal Services Act will actually mean for us day-to-day. It is going to be an interesting run up to October.

Even turkeys know Christmas is coming

In The end of inevitability Jordan Furlong challenges the legal profession to think about its future. In a few short paragraphs he identifies the key issues that will shape how law is practised in the future. And it is not just that there are profound changes happening in the relationship between lawyers and their clients, but that it seems most lawyers are simply not aware of them.

It is a sobering post. For Furlong, it is that almost complete lack of awareness of the legal profession that is the real issue,

The one thing that concerns me most, as an observer of the extraordinary change in this marketplace, is that the majority of the profession has no idea what’s coming. Most of the lawyers with whom I’ve dealt over the past several years simply can’t envision a world where lawyers aren’t considered essential to the social and economic fabric. They might recognize that times are tougher and costs are rising and prices have topped out and clients are more demanding. They might be resentfully aware that providers outside the profession are entering the market with lower-price offerings, and they might grudgingly accept that technology allows things to be done faster and cheaper than they used to be. But they’re not putting it all together. They’re not following this road to its conclusion, because they can’t really see how the world could get along without us. The inevitably of lawyers is our fundamental precept, and it has become a mental block.

This is as true in the United Kingdom as it is in North America.

It is certainly difficult in the hurly-burly of practice to take time out to think about what we need to change to stay in the market; and the very fact that we are busy is itself a problem, because it allows us to think that things are, after all, OK: change is not something any of us are that eager to rush into. But choosing to ignore the problem won’t make it go away, and the clock is ticking. And just as Furlong ends his post, “ Lawyers should know better than anyone else what a ticking clock sounds like.”

Twittering the Billable Hour

Why am I on Twitter? The family have stopped asking, and just accept that although I long ago got rid of my BlackBerry and obsession with emails, this has been replaced by an equally worrying (to them) interest in Web 2.0: Twitter, FourSquare, Spotify, Feedly ~ to say nothing of FB and LinkedIn.

It is always easy to justify one’s peculiarities (not least as to you they are not peculiar at all) but lately I have been giving some thought as to whether Twitter is really of any value, other than to boast about my homegrown asparagus. I am quite sure that it is. For me its value lies in the links I find. These may be to legal or management articles or blog posts, be about current affairs, or, very close to my heart, bird sightings. And all delivered (usually with a little help from bit.ly) in 140 characters.

The result is that I have access to an enormous range of thought.

A very good example was a tweet by Patrick Lamb (@ValoremLamb) yesterday, which took me to the Law Society of Western Australia’s website – and ultimately allowed me to download The Chief Justice of Western Australia’s address to the Perth Press Club, “Billable Hours – past their use by date”, given on 17 May to launch Law Week 2010. It is an excellent analysis, given, as the Chief Justice admits, “with a view to stimulating interest and debate, which may in turn accelerate changes which are already evident in some parts of the profession”.

You need to read the speech for yourselves (it’s a pdf on the website). It is pretty even-handed (what would you expect from a lawyer?) and he sets out both the advantages and the disadvantages, which will be familiar to most lawyers here and there. But one particular paragraph caught my eye:

Focuses on hours, not value

Time costing focuses the efforts of the legal practitioner upon the production of billable hours, rather than the production of value for the client. It rewards efforts and not results, promotes quantity over quality, repetition over creativity.

There is quite a lot more like that, but even though the Chief Justice accepts that “time billing has a place in legal service charging” he is quite clear that there are other methods “which encourage efficiency and better allocate risk”.

Always an easy target?

Luke Johnson’s weekly The entrepreneur column in the FT’s Business Life section is always a good read: trenchant views and punches rarely pulled. His attack on the legal profession three weeks ago was no exception, and it made for somewhat uneasy reading. For a flavour of the tone of the piece, read on,

But somehow lawyers have risen to such exalted status that many of them appear to believe they are a breed apart, not subject to the same standards of decency and fair dealing to which the rest of us in commerce attempt to adhere.

It also attracted more attention than many of his pieces do, and not just in the way of on-line comments on Ft.com, but a post in Legal Week’s Editor’s Blog (“great knock-about stuff”), tweets on Twitter, and no doubt much more elsewhere. By and large the comments fell into two categories: those violently disagreeing (mainly lawyers) and those violently agreeing (everyone else). No surprises there then, although reading some of the comments I can only supposes that they were drafted in green ink.

I read the piece on my way to an all parties meeting in London, on a corporate transaction that was, and remains, slightly sticky. In one of those lulls that seem to characterise any corporate deal, usually an opportunity to discuss cricket, rugby, football, racing – in fact anything but the deal itself, the conversation turned to the column. It turned out that the lead corporate finance adviser on the seller’s side (a director of a Top 4 accountancy practice so glasshouses and stones came to mind) had read out choice extracts to his clients and their lawyers before we had arrived. Nothing like putting the lawyers in their place.

But although there is some truth in what Luke Johnson wrote, and no one likes a mirror held up to them, he misses a very important point. The profession is only too well aware of the issues, and by and large lawyers are taking steps to get things right. Luke Johnson had an unhappy experience, and these are still all too common, but law firms know that experiences like that lose clients, and if nothing else one consequence of the overlawyering he describes is competition.

And while the attitudes he so pungently describes were commonplace 20 years ago, and the experiences of clients reflected this,  clients today expect something very different, as does our regulator. Within law firms there is a recognition that change is not something we can or should avoid. Similarly, although there are lawyers who still fit the stereotype he portrays (and not all of them are my generation), for every one of them, there will be many more who understand that the game has changed.

Rumsfeld’s Rules

Donald Rumsfeld’s Rules (Advice on government, business and life) may have been around for a while, but I only found them today, courtesy of a link in one of Kevin O’Keefe’s tweets and Rick Klau’s weblog. As Rick Klau comments, “They are, put simply, brilliant”. Read them: this is the link.

I particularly enjoyed this one,

Reduce the number of lawyers. They are like beavers. They get in the middle of the stream and dam it up.

Some 30 years ago, I was the gofer to one of the corporate partners in the firm that then employed me. We were advising a merchant bank, in turn advising the independent directors of ATV. It was (or seems) a very long time ago, but I have two vivid memories of that particular transaction.

The first was the appearance, very late one night, of the irrepressible Lew Grade. He, and his cigar, came through the double doors that led off into the Executive Suite at the top of the building. He just wanted to know that we were all being looked after; and as he left, he executed a couple of steps just to let us know that he was still a hoofer at heart.

My second memory, and this was triggered by reading Rumsfeld’s advice about lawyers, was of Robert Holmes à Court walking unannounced into an all parties meeting: clients, merchant bankers, stockbrokers, accountants and a fair number of lawyers. His Bell Group had just emerged as  a buyer. Holmes à Court looked at the suits sitting round the table: there were probably some 20 plus people in the room, and he slowly worked round the table, asking everyone who they were, who they were with, and what they were doing. Depending upon the answer given it was either a “You may leave now” or “You may stay”. All very courteous but nonetheless there was steel in his eyes.

I was one of the last he got to.

“Well, what are you doing?”

“Taking the notes.”

“You had better stay”

And stay I did. Holmes à Court was himself originally a lawyer, and had a very well-developed sense of who and what was needed.

Practising deceit

I was very struck by one particular answer John Moulton gave in the 20 Questions column in last Friday’s FT. He was asked, “Have you ever lied at work?” and his answer was “No. I detest deceit”.

This is the answer we probably all hope we would give, and indeed all think we could give. If you were to ask any lawyer which virtues he or she would consider fundamental to lawyering, my money would be on ‘probity’ and ‘integrity’ as two that would rank very high. Trust is, or should be, the foundation upon which we build our careers as lawyers.

And yet, and yet: deceit is never far away. Our ability to negotiate, whether in litigation or in transactional work, is one of those core skills that we lawyers also need. This in turn may involve, as Lord Armstrong remarked in the 1986 Spycatcher trial, our being “economical with the truth”.  The maxim  is from Edmund Burke: “Falsehood and delusion are allowed in no case whatsoever: But, as in the exercise of all the virtues, there is an economy of truth.”

At the end of our careers (although I am not suggesting for a moment that this is where John Moulton is) it would be good to be able to give that answer. It may, however, be difficult.

A moral profession

One (among a number) of the things you are not taught at Law School is the importance of morality in the practice of law.

Instead this is something that most lawyers learn later: whether during the training contract, or in legal practice. And some lawyers learn it better than others.  I have posted before, in Professional Unease, about what Bill Knight called the moral dilemma that most of us face at some stage or other in our professional careers, ‘when your client wants to do something which is legal, but which in your view is highly questionable’, and in the doing of it will be looking to you for help and advice.

Earlier in the week in the ft.com/managementblog, Stefan Stern posted about passing the parent test, referring to the remark by Stephen Hester, chief executive of Royal Bank of Scotland, to the Treasury Select Committee: “If you asked my mother and father about my pay they would say it is too high.” Stern went on (and this is what caught my eye),

We should always be ready to explain to close family members what it is we do at work, and why. The FT columnist John Kay prefers this sort of practical morality to any sort of imposed code of behaviour. If you would be embarrassed telling friends or family about aspects your job, the chances are you should not be doing it, he has said.

This is the practical morality that Bill Knight was writing about.

The danger is failing to look beyond our formal Code of  Conduct; assuming that if our actions do not infringe the Code, they must be acceptable.  This ignores the possibility that certain behaviour may not be professional misconduct but may be professionally unethical. Having said that, the purpose behind Rule 1, as set out in the general guidance, was to ‘define the values which should shape your professional character and be displayed in your professional behaviour’: perhaps the intent behind Rule 1, and I was a member of the Committee that drafted it, has not translated into action as we had hoped. Finally, a formal Code is no guarantee either that lawyers will recognise moral dilemmas, or, having done so, will act ethically.