A blog by Joel Barolsky of Barolsky Advisors

Avoiding the Bermuda Triangle of law firm management

In Articles, Commentary on 2 March 2019 at 8:50 pm

Full text of my opinion piece first published by the Australian Finance Review on 1 March 2019.

Is your firm getting trapped in the Bermuda Triangle of law firm management? It might be and, worse still, you might not even be aware of it.

In the early 2000s, Professor Ashish Nanda of Harvard Business School commissioned a study to test whether the concept of economies of scale applied in commercial law firms?

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AFR print edition

He plotted profit per equity partner (PEP) against the number of fee earners for over 200 firms in the United States. The results disconfirmed the scale economy theory but revealed something even more interesting: PEP was relatively high for small boutique firms focused on specific market segments, and for very large firms who were able to compete for larger bet-the-company M&A transactions, projects and disputes. However, a majority of mid-sized firms had lower PEP relative to their much smaller and much larger peers. While the graph had dots everywhere, the best-fitting line looked like a large ‘U’.

Two theories were put forward to explain the U-shape. The first was that many of the mid-size firms found it hard to differentiate themselves and as a result were unable to secure a price premium. The proposition was these firms were in the ‘mushy middle’ losing out smaller and larger firms that were better positioned in the market. A deeper analysis of the data revealed high- and low-priced firms across all the three groups and therefore market differentiation was concluded to be a relevant factor but not the full story.

Growth pain zone

The second theory was that many law firm partnerships suffered heavily from growing pains. Small firms benefited from quick, informal decision-making and lean management processes. Large firms had the advantage of more mature and formal management practices and leadership capability. Problems emerged when shifting from small to large. Professor Nanda called this growth pain zone the ‘Bermuda Triangle of Law Firm Management’.

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The Triangle phenomenon can be explained as follows.

Growth in the number of fee-earners, office locations, service range and clients often results in more management complexity. There are more day-to-day decisions around who to hire, fire, promote, take leave, reward and sanction. There are more issues to deal with in regard to administrative processes, technology and systems. Marketing and business development decisions such as client pursuits, pricing and conflicts become trickier. At a strategic level, there’s more at stake when making major investment decisions and signing long leases for larger premises.

Many law firm partnership struggle with this increase in complexity. A common response is to allocate more partner time to deal with management issues. As decisions become more complex, more and more time is taken up in internal meetings and management conversations. Partners are drawn away from the things that matter most, that is their clients, prospective clients, referrers and people. Firms become internally-focused at the very time that an external market-orientation is most critical. This collective distraction has a material negative impact on firm performance and competitiveness.

With the noble pursuit of partner equality, fairness and sense of proprietorship many firms are reluctant to take away any decision rights from partners. With this approach, almost every decision, from the colour of sticky notes to staff parking policy needs consultation and consensus. This often results in extensive delays and lowest common denominator decision-making i.e. doing what all can agree on rather than on what’s right.

Major blind spots

In some growing firms, partners take on designated management role in key functional areas like HR, IT, Marketing and Finance. While this helps share the load very often the partners overseeing these functions have next to no training or experience in these areas. They have major blind spots and often make sub-optimal decisions that ultimately cost the firm. Even when firms hire specialist managers in these business support areas it is quite common for partners to second-guess these professionals and override their decisions.

The most critical element in navigating through the Triangle is effective leadership and followership. If the firm has a competent leader, they tend not to over-invest valuable partner time in governance roles, they make the right decisions quickly and implement them. Effective leadership builds trust amongst the partners who are happy to cede many of their low-level decision rights. Good leaders provide the right support and intolerance for partners to perform to their full potential. They facilitate a culture that is focused on delivering a superior client and employee experience. All these things matter.

A quick review of the high growth firms in Australia over the past decade confirms this hypothesis. Many have a strong, effective leader or a leadership group that have helped minimise growing pains and navigated through the Triangle. The words of the Bear Hunt, “they haven’t gone over it / they haven’t gone under it / they’ve gone through it.”

Not quite the life of Harvey Spector

In Articles, Commentary on 2 February 2019 at 2:40 pm

Full text of my op-ed published in the Australian Financial Review on 1 February 2019.

The Australian Financial Review December 2018 Partnership Survey is fascinating for what it shows and what it doesn’t show. On the surface it reveals overall market growth as a result of the Haine Royal Commission, major infrastructure projects, real estate investment, regulatory change, private client wealth transfer, litigation funding and class action defence. It also reveals the rapid ascent of the law divisions of the Big 4 to a total of 87 partners.

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AFR print edition

However, the AFR Partnership Survey doesn’t show the names of four major firms that, for all intents and purposes, failed: Henry Davis York, Dibbs Barker, TressCox and Kemp Strang.

Paradoxically the latter firms weathered all the ups and downs over the past decades but failed in a rapidly growing market. Their demise can be traced to a combination of competitor aggressiveness, poor market focus and internal instability. The loss of key rainmakers to highly-acquisitive firms HWL Ebsworth had an immediate back-pocket impact on their high fixed cost business model. Profits took a further hit by a primary focus by some on commoditised banking, property and government work with a non-commodity low scale service delivery model. Coping with all these pressures with consensus-based decision-making significantly hindered rather than helped.

A broken talent supply model

Many of the law firms interviewed for the AFR survey indicated that they will be significantly increasing their graduate intake in 2019. The data revealed a rough ratio of 0.6 new graduates for every existing partner. The total of partners listed in the survey, plus the no-show Minter Ellison, is 3,560. At the 0.6 ratio we’re talking roughly 2,200 new graduates to be apprenticed at the elite level in 2019. Add another 1,000 for quality commercial and plaintiff firms and organisations not listed in the survey and we get a total of 3,200.

Australia’s 39 law schools produce around 8,000 graduates per annum. This means an immediate attrition rate of 60%. And 2019 is a boom year for graduate hiring.

Graduates then join our top law firms expecting to be Harvey Spector (or your favourite TV law hero) on Day 20 and find out that it’s not so glamorous. In fact, if one takes indicative employee experience data from Glassdoor.com.au, we see that many find it pretty average (ratings out of 5 for the top 5 firms):

·      HWL Ebsworth: 2.5

·      Clayton Utz: 3.6

·      King & Wood Mallesons: 3.1

·      Herbert Smith Freehills: 3.7

·      Norton Rose Fulbright: 3.4

Within three years of working in a major firm, a number of disillusioned trainees leave and seek employment elsewhere. This ultimately results in a shrinking talent pool of quality mid-level 3 to 7-year PQE lawyers.

Paradoxically, we have 60% over-supply of legal graduates but a significant shortage of trained lawyers. Surely, there must be a better, fairer and more sustainable way to supply top talent to our top firms?

Three strategic questions

There are three strategic questions have taken up thousands of partner decision-making hours across many of the firms listed in the AFR Survey in recent years:

·     Should we join up with a global firm?

·     Should we change our partner remuneration model?

·     How do we differentiate our firm?

Using partner numbers and growth as a proxy for success, the AFR survey reveals that both global and domestic firms are thriving. In the Top 20, we have seven globals and 13 locals (including Minters). It appears that there is a compelling argument that both models work.

The data indicates that there is no correlation with any particular partner remuneration model. Amongst the Top 20 firms we have strong individual performance-based models in firms like HWL Ebsworth and Mills Oakley, lock-step equal share models in firms Hall & Wilcox and Maddocks and hybrids like Allens and Baker & McKenzie.

If market differentiation was a critical success factor then one would expect three or four standout brands, like a Qantas and Virgin in airlines or Coles, Woolworth and IGA in grocery retail. The AFR survey reveals 54 brands with no obvious differentiation within broad peer groups. Given that many of the first listed are highly profitable it appears that there many more important factors that determine success than market differentiation.

In my view, firms would be far better off worrying less about globalisation, rem models and pursuing differentiation. The things that really matter are growing the pie through effective firm and practice leadership, nurturing a strong organisational culture, strategic focus and operational excellence.

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