The endangered partner

Last time out, I wrote at some length about the coming obsolescence of law firm associates. So it now seems only fair to turn the spotlight onto the other category of lawyers within law firms: partners. (Equity partners, that is — I’m not bothering with the transparently profiteering holding pen of the “non-equity partner,” a term that still makes about as much sense as “non-lawyer attorney.”)

A good place to start this inquiry is with a simple question: why do law firms even have “partners,” anyway? What’s the value proposition that the role of partner offers, both to the firms that create this position and to the lawyers who fill it? All law firms believe they ought to have partners, and many lawyers believe they ought to become partners. Why is that?

Partnership was a lot more fun and engaging back in the '80s.

Partnership was a lot more fun and engaging in the ’80s.

Well, there’s only one reason why law firms have ever sought out partners, and I’ll get to that reason later on in this post. But equally, there’s really only one reason why lawyers have ever wanted equity partnership in law firms. Lawyers seek law firm partnership, if you’ll allow me to be blunt about it, because they want power. And partnership has long promised lawyers power, in several dimensions:

  • The power of control over your own work, to be the assignor rather than the assignee of files — which usually means pushing down the dull stuff and keeping the best and most lucrative, high-client-contact work for yourself.
  • The power of influence over the firm’s direction and strategy — theoretically so that you could guide the firm’s development, but certainly to create an environment more conductive to your own satisfaction and career advancement.
  • The power of prestige — being able to hand out that little white business card with the raised-type gold-leaf “Partner” to your family, your friends, and especially that one law school classmate who was always such a tool. And of course,
  • The power of money — because let’s face it, the profitability of many law firms throughout the last few decades has reached levels so astonishing that an entire generation of associates has expended extraordinary effort just for a chance to access it.

Lawyers love control, influence, status, and money. Partnership has always offered the keys to each of those kingdoms, and it has always delivered on that offer — or at least, it used to. The actual nature of law firm partnership today, however, has become something else entirely.

One of the legal profession’s most cherished myths is the autonomy of the law firm partner: you’re an owner now! You’re an independent shareholder who can dictate the terms of your relationship with the firm! But the reality that greets most lawyers upon accession to partnership is a little different. You still have all the billable-hour requirements of associateship, but now you’re also responsible for bringing in new business, getting more hours out of your subordinates, and taking on myriad unpaid management roles. And unless you’re part of the firm’s tight inner circles of leadership, you have little practical input into strategy or direction: you’re informed of the firm’s changes, not consulted on them. You might as well still be an associate, a mere employee.

What’s worse, however, is that increasingly, partnership in a law firm actually reduces your autonomy, binding you tighter to your firm and narrowing your options. The capital contribution you made to secure your admission to partnership immediately disappeared into the firm’s operating account, and the odds are good that you’ll never see it again. The same applies to lateral partner arrivals who fall for what Edwin Reeser calls one of the “honey traps” that capture and financially strap the partner to the firm. At firms with large spreads in partner compensation levels (that is to say, virtually all of them), junior partners are effectively being leveraged like associates. And if you try to leave the partnership, your signing bonuses could be clawed back and any return of your capital could be strung out over several years to discourage your departure. For many law firm partners, the brass ring has transformed into a pair of handcuffs.

I don’t think this is all down to avarice on the part of senior law firm lawyers (although avarice seems to occupy the co-pilot’s seat in quite a number of firms). What this really suggests to me is that the partnership model for law firms — or at least, for any firm whose equity shareholders can’t fit around a standard boardroom table — has run its course. “Have we reached the end of the partnership model?” asked the ABA Journal last year, and as the article illustrates in vivid detail, I think the answer is yes. The operational, cultural, and ethical contortions through which many law firms have put themselves in order to maintain the benefits of the partnership system tells me that that system simply doesn’t work well anymore.

This is becoming clearer to potential law firm partners every day, and there’s plenty of anecdotal evidence that fewer associates are interested in becoming partners at law firms than in the past. That may be just as well for them. As partner cohorts get older and thinner, and as the eventual day of reckoning draws closer, the payload of risk that partner status represents grows ever larger. Many law firms today seem to be run as if they expect to wind down operations and cash out their equity shareholders in about five years’ time, leaving leadership voidsunfunded retirement plans, and unmet mentorship needs behind them. If your name is on an equity partnership agreement at one of these firms, you do not want to be the last one left to turn out the lights.

Bonus points if you even remember who these guys were.

Bonus points if you even remember who these guys were.

Partner status, in short, is becoming more of a burden than a blessing for a lot of lawyers. Many firms will accordingly find that when older partners do eventually retire, their positions won’t always be replaced and the partnership ranks won’t be fully replenished. That is a serious problem for law firms, for one reason — and that reason is the answer to the other question I raised at the start, where I asked why law firms even seek out partners. Law firms seek out partners because they need capital.

The defining characteristic of equity partnership in a law firm is “equity.” Regulations in every common-law jurisdiction (except Australia, England & Wales, and the District of Columbia) are adamant that equity in law firms may be held only by lawyers. If your firm needs capital, it needs lawyers to pony it up. I sometimes suspect that at least a few law firms have made and continue to make partners of some lawyers not because of the lawyers’ intrinsic merit, but because the firms need the money. Law firms need lawyers to invest their own money simply so that the firm can carry on business.

So what happens when you start running short on equity partners? You start running short on equity, and that’s a problem. Law firms can incur debt from banks to help maintain operations, sure, but no bank will lend to a firm without sufficient capital of its own. Borrow from future accounts receivable? That’s a very dangerous game. Dip into the trust fund? Enjoy your disbarment hearing. Nothing can really replace cold, hard capital, and firms are slowly losing access to their sole source of it.

And by an ironic confluence of events, law firms are going to start hurting for capital right around the time when they’ll need capital more than ever — when their market positions are under threat from staggeringly well-financed competitors.

The growing army of alternative platforms and rival providers, emerging and competing with law firms in the legal market over the next several years, will bring with them financial resources an order of magnitude beyond what lawyer-only equity can provide. The gross revenue of the entire AmLaw 100 in 2015 was $83.1 billion. The Big 4 accounting firms’ revenue alone in 2015 was $123.5 billion. Throw in legal technology providers financed by colossal Silicon Valley venture funds, and the still-distant but inevitable entry into law of corporate giants like Google and Amazon. Law firms, as currently structured and financed, are going to be massively outgunned in the coming market, just as their sole source of capital with which to fund competitive efforts starts dwindling.

And that, among other effects, is what’s going to finally change the legal profession’s rules around non-lawyer ownership of law firms. Today, lawyers and bar groups are doing everything they can to oppose the legalization of non-lawyer law firm ownership. Within ten years’ time, they’ll be the ones leading the effort to authorize it, simply in order to level the playing field and keep lawyers and law firms alive in a marketplace full of richly financed providers. The days when lawyer capital constitutes the sole permissible type of law firm equity are drawing to a close.

In the not-distant future, therefore, law firms will have alternative sources for capital other than lawyers. And by that time, an entire generation of lawyers will have been raised to view the position of equity partner with a certain skepticism and even suspicion. In that kind of environment, the role of “law firm partner” inevitably is going to be very different than it is today.

No longer the firm’s sole provider of equity, no longer the automatic ambition of young practitioners, no longer the promised land of power and profits — what will partnership represent? Will firms even maintain the category of “partner” anymore, or will they find some other title — “director,” “principal,” “stakeholder,” whatever — to identify the firm’s most important members, regardless of their seniority or their connections or whether they own a law degree? Will law firms finally get around to doing what they should have done years ago and separate the roles of owner, worker, and director into discrete positions, rather than forcing lawyers to wear all three hats at once? Will they finally accord their “non-lawyer” professionals the respect, power, and equity status they deserve for their contributions to the firm? These are just some of the possible routes forward, and at least a few of them will come to pass.

“Partner” and “associate” were perfectly adequate categories to describe the two classes of lawyers in 20th-century law firms, back when these were the only classes of people that mattered. Neither of these categories fits easily or functions well in 21st-century law firms and the new market in which those firms will compete. More categories of key personnel — in management, marketing, professional development, technology, knowledge, pricing, process, procurement, customer service and more — will be needed. Neither these personnel, nor the firm’s financiers, will require a law degree.

That’s going to be a whole new ballgame. And it’s the structural and organizational reality for which today’s law firms, if they would like to also be tomorrow’s law firms, need to start preparing now.

Law firm profitability metrics: Just subtract lawyers

I’ve received a lot of great feedback and commentary on my post earlier this week, “Death to Profit Per Partner,” none of it better than from my friend Toby Brown of 3 Geeks and a Law Blog. In a post at 3 Geeks this morning, Toby channeled the spirit of Weekend Update in challenging some of the premises and conclusions of my post. Here’s a sampling:

Although [Jordan] makes many arguments for why and how PPP might be a negative force, he misses the main point of why PPP or any other law firm profit metric exists. They exist to drive behavior. Firms need their partners to behave in profitable ways and need to set clear expectations of what those ways are. Without a clear expectation, firms can fully expect partners to perform in whatever way enhances their self interest, regardless of its impact of the economic health of the firm.

Giving Jordan credit, currently firms seem to only have the goal of improved profits (however they might be defined). I am in complete agreement that for firms to be successful for the long haul, they need a better goal: something like being the best and most cost effective at addressing their clients’ legal needs. Focusing on client needs does lead to success. But then we still need to define success. And ‘profitable’ needs to be part of that definition.

The fact that a given PPP number is not a true mean or median is beside the point. The real point is whether profits are healthy. PPP is actually a fiction, like most profit methodologies. However, without having profit be part of ‘success’, then a firm risks going out of business and ending its ability to be the best at addressing client legal needs.

Toby invited me to respond, and I gave it my best Jane Curtin. I recommend you click over to Toby’s post to read his entire argument and the ensuing dialogue. But here’s essentially what I had to say:

I disagree with the contention that the main point of why PPP (or any other law firm profit metric) exists is to drive behaviour. The main point of a profit metric is to measure profits. That’s what it’s there for. A law firm has many tools to shape behaviour, some of them explicit (compensation and bonus systems, for example) and some implicit (cultural expectations and peer pressures). But in almost every case, a law firm uses only one method (PPP) to tell itself and others whether and what to extent it’s healthy. The choice of profit metric does have a distant, secondary influence over behaviour (more on the relationship between the two below), but that’s not primarily why it’s there. [do_widget id=”text-7″ title=false]

It’s entirely correct to say, as Toby does, that “[f]irms need their partners to behave in profitable ways and need to set clear expectations of what those ways are.” But we diverge at the sentence following: “Without a clear expectation, firms can fully expect partners to perform in whatever way enhances their self interest, regardless of its impact of the economic health of the firm.” I would argue that in fact, that’s exactly the situation we have now: partners do act in their self-interest, aggressively so, and firms’ current choice of PPP as their profitability metric directly encourages this.

PPP is a profitability measure based on the interests of partners, not on the interests of the firm. When it comes to PPP, the profit metric does not drive partners’ behaviour and priorities; in an unhappy twist, it’s partners’ behaviour and priorities that have driven the choice of this metric.

There’s no question that profit does need to be somewhere in our definition of the “success” of a law firm (unless you’re running a non-profit enterprise, which very few lawyers are). Whether profit is higher or lower on the list of success attributes will vary from firm to firm. But the main point of my original post was that it can’t be the sole criterion. More importantly, though: if we do use “profit,” we can’t define it as “individual partner profit,” because that will only maximize the natural human tendency to look out for oneself above all else. “Firm profitability” is the only sustainable and sensible way to frame the question of the legal enterprise’s financial success.

Now, this leads us to a critical point, as framed by Toby: “There is a need for a real debate over which profit methodologies do make sense for law firms.” I am assuredly not an economist, and I can’t speak with any authority as to what the best methods might be. But I do strongly believe this: calculating profit using volume of lawyers as a denominator is not only self-defeating, it’s also on the verge of obsolescence. This applies not just to PPP, but also to its current popular rival metric, RPL (Revenue Per Lawyer). It doesn’t matter if we’re talking about partners, associates, or both: “Lawyers” will soon be a mostly irrelevant factor in the equation.

Law firms in the future will employ far fewer lawyers, and include far fewer partners, than they have in the past. More legal work (and much more quasi-legal or fully clerical work currently billed by lawyers) will be routed to systems, software, para-professionals, temps, and LPOs. For a perfect example of this trend, look at Winn Solicitors in the UK: a hugely successful firm, £10 million in annual profits, loads of non-lawyer and para-lawyer staff, and essentially just one partner. Measured by PPP, this car accident law firm is about 10 times as profitable as Cravath or Skadden. No offence intended to Winn, but do we really think it’s 10 times better a firm?

Starting now, and increasingly in the coming years, law firms are going to make a lot more of their money through non-lawyer means. This is why it’s absurd to cling to a lawyer-centred metric like PPP. Defining law firm profitability by lawyer is like defining Wal-Mart profitability by salesclerk. The only way to know if a law firm is profitable is to look at the profits of the firm. The longer we keep our focus on individual partner profit, the more time we’ll waste measuring the wrong thing.

Jordan Furlong delivers dynamic and thought-provoking presentations to law firms and legal organizations throughout North America on how to survive and profit from the extraordinary changes underway in the legal services marketplace. He is a partner with Edge International and a senior consultant with Stem Legal Web Enterprises.  

Death to “Profit Per Partner”

It’s time for law firms to junk “average Profit Per Partner” (PPP) as a measure of profitability and success. Past time, actually: our continued adherence to this shallow and self-centred metric is a prime contributor to the BigLaw existential crisis we’ve been reading so much about lately. By using PPP as the primary (if not the only) criterion by which to assess our law firms’ health, we perpetuate a host of self-destructive habits and impair our ability to operate our law firms in a truly profitable and professional manner.

There are two broad categories of reasons why PPP is a disastrous success metric for law firms. The first category has to do with the narrow and simplistic nature of this measure and its inherent definitions of value. The second is related to PPP’s increasingly outdated devotion to individual shareholder profits.

Let’s start by understanding exactly how primitive average profit per partner really is. First of all, it’s “average” —  adding up total firm profits, dividing by number of partners, and ending up with an amount that might well reflect no single partner’s profit at all. (Recall Bill Henderson’s dismantling of the concept of a $90,000 “average starting salary” for new law graduates, when he demonstrated the bimodal distribution of such salaries and that virtually no new lawyers actually earned $90,000 in their first year.) With the ratio between highest-earning and lowest-earning partners now more than 9 to 1 throughout the AmLaw 100, an “average” profit is almost meaningless, too easily skewed by outliers at either end.

We might improve slightly on PPP if we adjusted it to measure “median profit per partner” — at least then we’d have some confidence that a few partners are actually making that amount, and outliers wouldn’t distort the data. But even here, we run into another fundamental problem: the definition of “partner.” Law firms have tended in recent years to extend this title to lawyers, and retract it from them, based largely on their present accounting needs: we’re currently in the depths of a “de-equitization” trend, evidently based on a desire to reduce the number of seats at the table and the number of denominators in the PPP equation. This is worse than the tail simply wagging the dog — this is the tail deciding whether there’s even a dog back there or not. If a metric is going to determine your growth strategy, it had better be a damn good metric. [do_widget id=”text-7″ title=false]

But PPP is not a good metric: it drives selfish, irrational, destructive behaviour. If a firm’s PPP dips precipitously or its position in the AmLaw rankings falls more than a few slots, a veritable death watch is created for the firm, both inside its walls and in the wider market. Influential partners and rainmakers, most of whom know very little about actual firm profitability, feel compelled to jump to firms higher in the rankings — with no regard given to whether the “higher” firm will be better for them or for their clients. Morale falls within the firm, recruiting become harder, CVs start circulating — all because one simplistic metric says the firm is in trouble. Entrepreneurs would be shocked by the credulity and financial ignorance of lawyers revealed by PPP contests.

PPP is further susceptible to the widely recognized (but rarely acknowledged) fact that every set of PPP figures published for large law firms is entirely self-reported: law firms tell the market what their revenues, profits and partner counts are, and invite us to do the math. But hardly anyone steps up and questions whether the base figures themselves are accurate. Consider the brouhaha created in 2011, when some of the law firm profit numbers listed high in the AmLaw rankings varied from those in a report by the firms’ lender of choice, Citi Private Bank — and not surprisingly, the self-reported firm numbers were noticeably more robust than the bank’s figures.

Now, you might still be willing to overlook all these legitimate objections to PPP if you were convinced of one thing: that the annual profit earned by partners is a proper measure of the success of a firm, and that we should simply improve our analytics until we can measure that profit accurately. That belief rests on another basic assumption: that the ultimate and best purpose of a law firm is to generate and maximize profits for its partners. That brings me to the second, and I think even more incisive set of objections: this belief is false.

Law firm partners are the equity shareholders in their firm (and outside of England, Wales and Australia, only lawyers may be such shareholders). “Shareholder value,” in turn, has been the fundamental strategic goal of the corporate world for the last few decades: merge, diversify, fire, close, acquire, rebrand, lay off — do whatever it takes to maximize shareholder profits. This is a corporate philosophy whose time has passed. Justin Fox writes in the most recent issue of The Atlantic, in an article titled “How Shareholders Are Ruining American Business”:

This notion that shareholder interests should reign supreme did not always so deeply infuse American business. It became widely accepted only in the 1990s, and since 2000 it has come under increasing fire from business and legal scholars, and from a few others who ought to know (former General Electric CEO Jack Welch declared in 2009, “Shareholder value is the dumbest idea in the world”). But in practice … we seem utterly stuck on the idea that serving shareholders better will make companies work better. It’s so simple and intuitive. Simple, intuitive, and most probably wrong—not just for banks but for all corporations. …

[The] heyday [of shareholder value] ended with the stock-market collapse that began in 2000. The popping of the tech-stock bubble demolished the notion that stock prices are reliable gauges of corporate value. And as the economy languished, the shareholder-driven U.S. corporate model ceased to look so obviously superior to its Asian and continental-European rivals. The intellectual assault on shareholder value began, and has been gaining strength ever since. …

Multiple studies of corporations that stay successful over time—most famously the meticulously researched books of the Stanford-professor-turned-freelance-business-guru Jim Collins, such as Good to Great—have found that they tend to be driven by goals and principles other than shareholder returns. … In a complex world, you can’t know which actions will maximize returns to shareholders 15 or 20 years hence. What’s more, most shareholders don’t hold on to any stock for long, so focusing on their concerns fosters a counterproductive preoccupation with short-term stock-price swings. And it can be awfully hard to motivate employees or entice customers with the motto “We maximize shareholder value.”

You can see the many parallels between American corporations and law firms in this regard:

  • PPP as an overriding goal also rose to prominence in the late 1980s and 1990s (a period often associated with the start of a decline in professionalism);
  • Shareholder profit does not predict the health of an enterprise (Dewey & LeBoeuf was profitable until the day it crashed);
  • Rampant partner mobility and lateral hiring frenzies parallel shareholders’ increasingly short-term possession of company stock;
  • “Annual partner draws” parallel “annual shareholder earnings” and drive short-range, revenue-now behaviours;
  • Staff members and associates don’t share in the profits, so how they can be expected to support a strategy in which they have no personal claim?
  • Truly great firms are driven by goals and principles (how often have we said to ourselves, “Law used to be a respected calling, firms used to be places with a higher sense of purpose,” etc.?).

I don’t think it’s a huge stretch to say that when PPP became law firms’ fundamental measure of success, lawyers at these firms began to lose their compass, and the firms themselves began to lose their way. [do_widget id=”text-8″ title=false]

So it’s not just that PPP measures only one simplistic thing — it measures the wrong thing. There is no correlation, let alone causation, to be found between profits earned by equity partners on average and a host of other positive features that could equally reflect firm success:

  • Firm-wide profitability
  • Lawyer and staff retention rates
  • Lawyer and staff morale
  • Client loyalty
  • Client satisfaction
  • Community impact
  • Pro bono commitment
  • Prestige

That last one really goes to the heart of the issue: more lawyers now reflexively accord more prestige to a firm depending on its AmLaw ranking. But do you really think clients believe that a firm’s profitability — its ability to maximize revenue from these same clients — helps determine its prestige and desirability? And do you think clients applaud lawyers’ desire to make the maintenance and growth of that profitability their primary measure of success?

Law firms are, or should be, far more than profit machines for their equity partners, just as companies should be more than just profit machines for their shareholders. But even if you don’t believe the latter — if you think that capitalism is so base that corporations really should be nothing more than money engines — aren’t lawyers and law firms supposed to be different, and better? Isn’t this the argument we always hear against non-lawyer ownership of law firms: that “law is a profession,” that the greedy desires of businesspeople and shareholders would drive us to ruin if they were admitted to the ownership circle? If we’re so superior to mere corporate types, let’s prove it — by adopting a measure of law firm success that has more in common with today’s globalized economy than with Dickensian England.

I admire The American Lawyer and I have friends who work there (hopefully after today, too). But it’s time we called on AmLaw to abandon PPP as a measure of law firm success. The AmLaw rankings are incredibly influential within the US legal profession and have spawned imitators worldwide, and it makes sense that an independent assessment of law firms exists to guide both clients and lawyers in identifying “the best” firms. But we are in desperate need of improved criteria for determining “the best.” PPP is shallow, simplistic, and misleading; it encourages antisocial and unprofessional behaviour; and it’s out of step with modern enterprise philosophy. We can do better; we need to do better.

I have no doubt that constructing a more complex, sophisticated measurement of success among large law firms would be a difficult task — but that’s no reason not to try. If The American Lawyer again takes the lead, as it did years ago when it first developed the AmLaw 100, it could have a wide and (I believe) massively positive impact on how lawyers view themselves and how they run their law firms. If it chooses not to do so, it will only be a matter of time before someone else comes up with a rival ranking with different and better criteria that will capture the profession’s imagination.

Whether we like it or not, PPP is in its dying days. The sooner we put it out of its misery, the sooner we can start to bring new life to our law firms.

Jordan Furlong delivers dynamic and thought-provoking presentations to law firms and legal organizations throughout North America on how to survive and profit from the extraordinary changes underway in the legal services marketplace. He is a partner with Edge International and a senior consultant with Stem Legal Web Enterprises.   

Solving the wrong problem

The New York Times caused quite a stir last week when it published an article that looked at a third-party litigation funding company focused on the family law market. Balance Point Divorce Funding covers the cost of a party’s divorce proceeding in exchange for a share of what it calls the “winnings.” The article describes the litigation financing industry as one that:

“invests in other people’s lawsuits, arming plaintiffs with money to help them win more money from defendants. Banks, hedge funds and boutique firms like Balance Point now have a total of $1 billion invested in lawsuits at any given time, industry participants estimate. Lawsuit lenders initially focused on personal injury cases, but over time they have sought new frontiers, including securities fraud cases brought by disgruntled investors, whistleblower claims against corporations and property development disputes.”

The business case for these companies is similar to that employed by contingency fee lawyers: take on risk at the outset with no upfront or ongoing financial reward, in exchange for the prospect of a substantial payout at the successful conclusion of the proceedings. The moral case for these companies also borrows from the contingency world: plaintiffs who have a legitimate case but cannot compete with the defendant’s resources have no hope of succeeding in the justice system unless someone supports them at the start in return for a payday at the end. It’s worth noting that contingency arrangements in the law emerged from the personal injury and class action spheres — a long way from property development disputes and divorces. It’s also worth noting that Balance Point doesn’t take cases where the marital assets are less than $2 million.

I’ve written about third-party litigation funding a couple of times before, and it should be clear from those entries that I’m not a big fan. But it’s difficult on its face to argue with the legitimate plight in which Balance Point’s clients, mostly women, find themselves:

Her customers fall into a pattern. They are women. They generally do not have jobs. They often are raising small children. And their husbands run their own businesses, making it tough to obtain financial information. A stay-at-home mother with three children spent 16 months trying to compel her husband to produce current financial statements for his solo law practice. She was running out of money when Balance Point agreed in August to provide financing.

You’d have to be pretty stone-hearted to say that these plaintiffs should be deprived of any form of assistance they can find, and I’m not advocating that these sorts of programs be outlawed. But I do contend two points. The first is that third-party litigation funding, especially in family law, is based on a fundamental misunderstanding of what a lawsuit actually is, a misunderstanding that has dire implications. And the second is that third-party litigation funding is the wrong solution to a very real problem, and if lawyers don’t fix that problem, someone else will fix it for us.

Third-party litigation funders refer to their clients’ lawsuits as “investments.” That is an accurate description only in the narrowest sense of the word: sending my children to school is an investment too, but it’s not one I’m counting out dollars and cents to quantify. The problem with treating lawsuits as financial investments is that it treats a lawsuit as a means to an end, not an end in itself: the lawsuit’s value is stripped of its human component and reduced to a competition, a calculated wager that one side will do better than the other. This, as Immanuel Kant and his Categorical Imperative would tell you, is actually profoundly immoral.

A lawsuit is the operational expression of a serious interpersonal conflict, usually marked (especially in family law) by great physical or emotional misery for the people involved. Ripping that lawsuit from its human moorings and treating it purely as a financial vehicle is literally a dehumanizing act, one that disregards the law’s primary function of facilitating the resolution of personal conflict by peaceful and orderly means. We’ve always been worried about the monetization of court proceedings by disinterested third parties; it’s why we came up with the rules on champerty and maintenance, and we carved out a very clear exception to those rules to make contingency fees possible. And even then, as we know, there are some lawyers whose ethical failings draw them to contingency arrangements that abuse the system and the parties. Bringing a stranger into a lawsuit is an extremely risky enterprise, and I don’t think we’ve sufficiently considered and answered those risks in the case of third-party litigation funding.

Now, you may agree or disagree with my thinking on this issue, and I’d welcome comments in the section below. But I won’t leave this topic without addressing the second point that these companies prove: access to the justice system is broken, and lawyers must accept most of the blame for that.

The fact that third-party litigation funding is flourishing, bumping up against the basic principles of the justice system, should be a grave embarrassment to the legal profession. These companies are emerging because the price of bringing a problem to and through the court system for a solution exceeds what 80% of the population can afford, and 80% of the reason those costs are so high is because of us: not just the fees we charge for our work, but also the labyrinthine, process-drenched, time-devouring system of justice we’ve created and currently oversee. The justice system works for judges and lawyers, because we made it and we run it and we work in it every day; it demonstrably does not work for anyone else.

Don’t take my word for it: ask Lance Finch, Chief Justice of the British Columbia Court of Appeal, who delivered a speech to the B.C. branch of the Canadian Bar Association in Arizona last month. I wasn’t there, but reading the transcript of his remarks, I can imagine that his audience became increasingly uncomfortable as the address went on:

About 15 percent of all appeals heard in the British Columbia Court of Appeal have no lawyer on one side or the other, sometimes both. Some of these cases are without any apparent merit. But we believe there is a significant number of appeals where there is a meritorious argument to be advanced, that cannot be made or made adequately without a lawyer. And we also believe that at least some of these litigants are unrepresented because they cannot afford the cost of a lawyer, and do not qualify for legal aid or pro bono services. In short, the high cost of legal services appears to be one of the obstacles to access to justice. …

In the access to justice debate, much is said about the cost of litigation, but little is said about reducing legal fees. No matter how much we may all wish to avoid the subject, high legal fees are an issue that must be addressed. I respectfully suggest it is time for the bar to address this question openly. It touches on the legal profession’s ability to remain independent and self-governing, and it concerns the public interest in access to justice. …

Lawyers, as a profession, specifically members of the Law Society of British Columbia, have a monopoly on the practice of law. Section 1 of the Legal Profession Act defines the practice of law and s. 15 prohibits those other than practicing lawyers from the practice of law. The apparent purpose of this prohibition is protection of the public. However, the monopoly enjoyed by the legal profession also has the effect of constricting the supply of legal services. …

I suggest the high cost of legal services is a result, at least in part, of limited supply. It is not related solely to the inherent cost or overhead of providing legal services. … [I]t must be apparent that regardless of the purpose identified for maintaining a monopoly, the effect of the monopoly itself can only be to restrict supply and increase cost. …

The restricted supply of lawyers enables individual lawyers and law firms to choose the best paying (and indeed most interesting) work. Poor paying, or uninteresting, work is left unserved. I do not criticize individual lawyers or their firms for acting in their own self-interest. I practiced law for 20 years in a private law firm. I and my partners and associates wanted to make the best living possible that we could. I am sure that remains the case today, and justifiably so. …

The restricted supply of lawyers in British Columbia is neither the fault nor the responsibility of individual lawyers or law firms. The restricted supply is a systemic failure on the part of the legal profession’s governing body to ensure that legal services are available to all who need them. That is what the public interest demands. And I suggest that is what the profession must deliver.

I commend the entire speech to you; the chief justice makes a series of excellent points. I don’t necessarily agree with everything he says, and I don’t believe that the “supply of lawyers” is the whole story. But without any hesitation, I embrace the notion that our profession restricts the provision of legal services to lawyers, to be delivered on lawyers’ terms, in a system crafted to lawyers’ preferences, and that in doing so we have effectively restricted access to justice. We are the stewards of the justice system, and at least in terms of accessibility to that system, we have not done ourselves proud. Chief Justice Finch is not being alarmist when he wonders aloud whether the day will come when society decides that someone else should be given the steward’s job.

Third-party litigation funding is, at best, a very flawed solution to the problem of access to justice. Aside from its philosophical drawbacks, it’s solving the wrong problem: it assumes that the best way to beat the system is to even the odds, to give everyone enough money to duke it out with expensive lawyers in front of expensive judges in expensive courts. That is not the way to fix the problem. The way to fix the problem is to make the system less bloody expensive in the first place. And if lawyers can’t figure out how to do that, and soon, then I submit that third-party litigation funders will be the least of our concerns.

The real impact of private equity

It’s coming to the attention of many North American lawyers that our overseas colleagues are or soon will be selling equity interests in their law firms. Earlier this summer, American Lawyer profiled the progress of pioneering publicly traded law firm Slater & Gordon in Australia. More recently, Bloomberg News announced that at least three UK law firms are willing to accept private equity investment starting in 2011, when radical measures introduced by 2007’s Legal Services Act take effect. Neither of these developments will be news to regular readers here, but many other lawyers newly faced with these prospects are hitting the books to figure out how to respond.

Often, the first book they pull out is their code of professional conduct. Objections to outside investment in law firms tend to cluster around the twin assertions that shareholders would demand maximized return over professional and ethical considerations, and that outside investment would create too many opportunities for disqualifying conflicts of interest. On the second point, when you think about it, conflicts arising from external investors aren’t really qualitatively different from conflicts by current investors — i.e., the other partners in the firm. And in any event, not every conflict of interest is a disqualifying conflict that undermines the lawyer-client relationship. More complicated to manage? Quite possibly. Irreconcilably difficult? I’m much less sure of that.

On the first point, it seems to me that we’re confusing two different types of obligations. There’s a difference between a binding ethical obligation owed to a client — to do your best work to further the client’s interests, in complete confidence and loyalty — and the general corporate obligation to return a profit to a shareholder. The first should and will trump the second, always. And really, when you get down to it, these obligations dovetail more than they conflict. A good lawyer who acts ethically in his clients’ best interests is by definition maximizing the value of the firm and the return to the shareholder. It won’t serve an investor’s interests to encourage behaviour that would wreck the law firm’s reputation for trustworthiness and ethical conduct  — it would be a surefire way to ruin the value of the investment.

Now, the ethical waters around non-lawyer equity interests in law firms do run deep, and I’m not the captain to ply them. At the moment, I’m more interested in the defensiveness that talk of outside investment generates in many lawyers. Although I accept that many lawyers’ objections on ethical grounds are sincere, I suspect that many other lawyers object because of the threat non-lawyer influence presents to two foundational elements of lawyers’ lives: change and control.

When you look closely at the discussions around non-lawyer investment in law firms, it becomes clear that such investors actually have very little interest in the work lawyers do for their clients — they’re really not that into what we do. Their interests are entirely profit-based, and they view law firms through the single lens of revenue generation. From the Bloomberg article:

“Law firms are pretty attractive investments as they have stable cash flows, long track records of business operations and increasingly are much better run,” said John Llewellyn-Lloyd, executive director of Noble Group Ltd., a London-based investment bank. “You would expect them, like any professional services business, to provide a pretty good return.” Alan Hodgart, a law firm consultant at H-4 Partners in London, said investors are expecting “fairly high returns, in excess of 15 percent.”

So law firms are attractive because they’re a steady, reliable investment. Nothing new there — partners have been comfortably aware of that happy fact for years now. But there’s more to it than that. Your average law firm isn’t just a reliable investment — in many cases, it’s a vastly underperforming one. Investors look at the short-term, narrow-focus, seat-of-the-pants way most firms are operated, and they salivate at the thought of what even a basic injection of systemic discipline and workflow reform would do to already-fat profit margins. Again from Bloomberg:

Lyceum Capital, the London-based buyout firm, is interested in investing in the legal industry, with a “focus on new business delivery models, not traditional law firms,” Hand said in an e-mail. … Lyceum Capital wants to invest in ways to reduce legal costs and make some types of legal work cheaper and more efficient.

Further along these lines, consider what consultant Joel Henning predicts about the impact of outside investment on law firm management:

The result might be very different service delivery, billing and compensation systems, minimizing individual performance and maximizing team, practice and firm performance. Investors would bring to bear a more contemporary suite of tools and techniques for managing the delivery of legal services. They would be astounded by the enormous duplication of efforts at law firms.

If we allowed businesspeople to invest in and join the leadership of our law firms, I suspect that more and better smart systems and processes would be developed and refined on an accelerated basis, systems that would accomplish many legal tasks beyond drafting and researching, reaching even to some problem solving. If this were to happen, the billable hour and the lawyer compensation systems grounded upon it would largely become anachronisms. Savvy outside investors would find that too many smart lawyers and too few smart systems currently inhabit our law firms.

And here’s Altman Weil’s Tim Corcoran on what would happen in a law firm where business decisions aren’t left to lawyers alone:

Fundamentally altering the firm’s recruiting strategy?  Establishing true associate training and apprenticeship?  Re-designing compensation systems to drive collaborative behavior?  Which Biglaw partner wants to raise his hand and dive deeply into these issues?  …

If a PE firm purchases a significant stake in a large law firm, rest assured that the investor representative they install on the management committee, whether this is a COO, CFO or some derivation, will be able to do the math justifying why process improvement will lead to substantially better returns — for the investors, for the partners and, oh yes, for the clients.  This isn’t rocket science, and cost containment programs based on ROI, investments based on NPV and even formal business process improvement programs like Lean Six Sigma are really not much more than common sense ideas backed up by math and a governance structure which places the good of the firm above the desires of individuals.

Of course it will be hard.  But the PE investors who truly want to unlock the value embedded in Biglaw will understand the potential return on delving into the tough issues.

That, I think, is the key selling point for potential investors in modern law firms. They see the enormous value that’s hidden away under layers of wasteful processes, poor client communication, and amateurish management. They’d love to get their hands on and polish up these rough diamonds. Lawyers say they object on grounds of professionalism; I say there’s nothing unprofessional about running a business efficiently and effectively. In fact, experienced business management that does away with internal inefficiency will reduce costs, thereby making it possible to lower prices, which absolutely serves clients’ interests. Outside equity investment as a tool to improve access to justice? I think it’s more than just arguable.

Lawyers could continue to object that equity investors wouldn’t pass these cost savings on to clients — they’d simply pocket the difference as extra profit. I find that enormously funny, because how is that different from what many law firms already do now? If there’s any difference, it’s that outside investors — motivated to take a longer-term view than partners, whose vision usually extends only as far as this year’s draw — have an incentive to build the business for future success, which would encourage any measures that would make the business more appealing to clients and boost market share.

At the heart of it, I think this is what motivates a lot of opposition to outside equity investment in law firms — the knowledge that the new people would do things a whole lot differently. They’d change the way lawyers do their work, which for many practitioners is the most sacred cow of all. Non-lawyer shareholders wouldn’t tolerate some of the stuff law firms get away with now, and the lawyers know it. So it’s about change, and it’s about loss of control — two things lawyers really don’t like.

Equity investment in or outside ownership of law firms will be neither a panacea nor an unalloyed good — mistakes will be made, lines will be crossed, abuses might well take place. No innovation arrives perfectly safe and sound. But what such investment does offer is something the legal services marketplace has needed for too long: law firm management singularly driven to improve efficiency, effectiveness, and above all, client satisfaction, because it makes business sense to do so.

Avalanche alert

“[F]irms still have too many lawyers,” says the Chicago Tribune in the course of a rather grim 2009 forecast for American law firms. That might not be a problem for too much longer, because we’re about due for another round of bloodletting. But the next stage of the inexorable rationalization of the private bar won’t involve more of the associate and staff layoffs that marked the latter days of 2008 (though we’ll still see plenty of those). We’re now in Phase Two; partners are on the move, voluntarily and otherwise.

In the latter category, the latest news comes from the UK, where Addleshaw Goddard just told 19 partners they were no longer welcome, while Ashurst decided that 10 of their partners would be a better fit elsewhere. This is a whole different order of impact than associate and staff layoffs. There’s a difference between cutting fat and cutting bone, and in a law firm, partnership is bone marrow. It forms the underlying substructure on which everything else is built. “Partnership” carries a lot of emotional and psychological weight, and a firm can’t revoke that designation without expecting some emotional and psychological backlash.

But that looks like the lesser of the problems on the horizon. With the new year comes the end of the old year’s collections and distributions, so a lot of firms’ balance sheets are coming into focus. That means Lateral Season is upon us, and this year, the harvest looks to be exceptional.

Now that 2008 firm financials are becoming clearer, legal recruiters and consultants say lateral partner moves are bound to heat up, just as they always do at the start of a new fiscal year. But this time around, they say the added pressures of a tanking economy and firm layoffs will flood the market with even more partners looking for new homes, or for quick escape routes off sinking ships.

“This is the month to watch,” legal consultant and recruiter Colin Beebe says. “In January and February, you’re going to see a lot of partners calling and asking, ‘How do I get taken?'”

It’s not hard to sketch out the next few steps. Firms lower down the standard “profitability” (I use that term advisedly with law firms) scale will be vulnerable to raids by higher-ranking firms; in a recession, acutely so. In some firms, a few key partners — well-known in the industry, well-respected by clients and colleagues — will accept the invitation to climb several notches on the PEP ladder. It doesn’t have to be a mass defection; just enough key people in key positions whose withdrawal, like certain critically placed rocks on a hillside, can lead to a few more, and then some more, and then an avalanche.

We’ve seen it happen before, and I think we’re about to see a lot more of it. The first few months of 2009 could well be marked by a series of firm implosions, as the strong get stronger by poaching from the weak. This is inherently neither a good thing nor a bad thing — companies and organizations fall and rise regularly in normal marketplaces — but it will be a surprising and affecting turn of events for lawyers. It will be an uncomfortable reminder, as Prof. William Henderson told the Tribune, that “[y]ou have pretty weak glue holding these bigger enterprises together.”

And that’s what will interest me the most — looking for the firms that, in the natural order of things, might have fallen, but didn’t, because their glue was stronger.

I actually don’t think it will be the less “profitable” firms that are most vulnerable to poaching; it will be those that  failed to strengthen, or actively weakened, the internal bonds of unity, purpose and vision — “vision” here signifying something more meaningful than profit generation. Firms that worked staff sick, rode associates too hard and undervalued partners are in particular  trouble. Those that expelled partners solely for reasons of profitability should be declared off-limits to visitors due to the danger of imminent collapse.

The survivors will be those that have sufficient strength and cohesion to hold together when others shake apart. They’ll be the ones that, months or even years ago, sensed the emerging ethic of the time, that the day of the me-first organization is over. There’s no time left now to build that ethic into a firm; either it’s there or it’s not, and the consequences will flow accordingly.

I listened to a man deliver a pretty good speech yesterday. Here’s what he had to say about character and collegiality in the face of adversity:

[O]ur time of standing pat, of protecting narrow interests and putting off unpleasant decisions — that time has surely passed. … [A]t this moment — a moment that will define a generation — it is precisely [the spirit of service] that must inhabit us all. It is the kindness to take in a stranger when the levees break, the selflessness of workers who would rather cut their hours than see a friend lose their job, which sees us through our darkest hours.

How many partners in your firm would willingly — enthusiastically — assent to a drop in profits per partner in order to keep fellow partners in the fold? The answer to that question might just determine how well, if at all, your firm weathers the coming months.

Credit crisis: You ain’t seen nothin’ yet

We’re already seeing some dominoes start to wobble in the legal community, as the short- and medium-term impact of the financial crisis becomes clearer. If you’re a law firm CFO or a law student nearing graduation, you probably won’t like what’s coming. But it looks to me like there are much bigger pieces likely to fall very soon.

Let’s start with the dominoes. Here’s an article from the Fulton County Daily Report about the impact of the credit crunch on law firms’ lines of credit, something I mused about last week. Lawyers who traditionally have not made accounts receivable a priority should read this:

Some banks are increasing their scrutiny of law firm loans, attaching more covenants and conditions and looking ahead to how well firms can collect their receivables in the coming year. According to some bankers and consultants who focus on law firm lending, a lag in collection time is pushing firms not just to borrow more money but also to increase holdbacks on partner compensation and, perhaps, decrease overall profit distributions.

Dan DiPietro, client head of the law firm group at Citi Private Bank, said his employer still views lawyers as a good credit risk — despite the crisis coursing through the markets and the collapse or merger of clients that supply billable hours to many of the nation’s law firms. … “What has changed is our focus and discipline on pricing and making sure that we’re pricing with the view that this is not a standalone credit facility but is generating other revenue. … In this market, there’s a huge focus on overall returns.”

Like many banks, Citi looks at firms’ cash flow, receivables and work in progress when assessing their creditworthiness and how much cash to advance on revolving or long-term lines of credit. … Citi is giving existing loans a higher level of scrutiny and is looking more closely at firms on an individual basis to assess how the economic turmoil might affect their receivables.

Then there’s law students, the vast majority of whom wouldn’t be able to meet tuition and living expenses without student loans — loans that are suddenly looking very dicey, according to an article in the National Law Journal: Continue Reading