A blog by Joel Barolsky of Barolsky Advisors

Archive for the ‘Commentary’ Category

Firms face danger if they stray too far from the core

In Articles, Commentary on 10 October 2020 at 12:24 pm

Full text of my opinion piece first published in the Australian Financial Review on 9 October 2020.

Establishing non-legal businesses seems to be back in favour among Australia’s larger law firms.

Minter Ellison was an early mover with acquisitions of an IT consultancy firm and an executive remuneration practice in 2017. Others include Corrs Cyber (data breach and crisis management), G+T (Gilbert + Tobin) Innovate (in-house legal transformation), Ashurst Consulting (board risk and governance), TG (Thomson Geer) Endeavour (public affairs), McCullough Robertson’s Allegiant (insurance broking) and Hall & Wilcox’s Global Mobility Services (migration, tax and relocation).

The rationale for these new non-law ventures is mostly centred on strengthening or defending the core business and making significant client relationships stickier. Some firms pursue these adjacencies to deliver new sources of profitable growth or to provide a hedge in the event of industry disruption.

Original AFR article

To increase the chances of success of these new ventures and others seeking adjacent opportunities, there are four key strategies to consider.

#Reinforce the core

Many adjacency failures can be put down to firms straying too far from their core business.

Woolworths’ foray into the retail hardware sector via its Masters business was an unmitigated failure. Masters did not reinforce Woolworths’ core grocery business or leverage existing customer and supplier relationships. While its retailing and property management capabilities were strong, they couldn’t outmuscle a formidable incumbent (Bunnings).

Success comes from investing in areas where there are substantial, measurable and mutually reinforcing economies between the current and the new.

#2 Align financial expectations

One of the main reasons law firms have not persisted with non-law businesses in the past is that they have simply not made enough money.

Well-run premium law firms are very profitable. Despite intense competition, the market price for specialised legal advice has increased significantly over the past 20 years.

Many of the new ventures compete in market segments where the price point for partner-level advice is 30 per cent to 40 per cent lower than law firms. Others are pitched at the ‘brain-surgery’ end of the market with relatively low leverage and utilisation.

The upshot is there is a significant risk regarding profit expectations. My advice is to ensure everyone is 100 per cent on the same page early on – and if there are irreconcilable gaps, walk away!

#3 Pre-empt cultural clashes

While great strides have been made in recent years on using the talents of those without legal qualifications, the lawyers still market – and see – themselves as the smartest people in the room.

So, it is vital that your cultural due diligence cover over things like common aspirations, values and standards. When it comes to adding advisors from non-law disciplines, there is an added risk of professional arrogance.

One of the keys to success is to pre-empt and address any cultural differences between the lawyers and those other idiots. Only joking!

#4 Ensure a founder’s mentality

Why is profitable growth so hard to achieve and sustain?

Chris Zook from Bain & Company researched this question and found that when firms fail to achieve their growth targets, 90 per cent of the time the root causes are internal and not market related.

He also found that firms experience a set of predictable internal crises, at predictable stages, as they grow.

Zook suggests that managing these choke points requires a “founder’s mentality”— someone with fire in the belly who is relentless in pursuing the business’ mission, adept at leading others through change and imbuing the firm with a strong client focus.

So, in summary, all it takes to succeed is to have a driven intrapreneur leading a new venture that is deeply connected to the core business – from a market, financial and cultural perspective.

It sounds easy. Until you try.

Will law firms be more productive but less human?

In Articles, Commentary on 7 October 2020 at 9:00 pm

Full text of my Australian Financial Review opinion piece first published on 11 September 2020.

In April, I made three predictions about a post-Covid19 legal world – there would be deeper relationships between staff and clients, less paper and more flexible work arrangements. Five months on, it’s worth revisiting these predictions and to ask what else might change?

The argument for deeper relationships was based on the notion that people going through acute stress together come out at the other end with greater trust, understanding and connection. Given that we’re still living through the pandemic, it’s probably too soon to tell for sure whether this prediction will come true or not.

It appears the sense of a life-threatening emergency is being replaced by a collective consciousness of fatigue and despair. In Victoria, tempers seem to be a bit shorter and patience a little thinner. This trend doesn’t augur well for a future of more kindness and mutual support.

The predictions around less paper and more flexible work arrangements are looking rock solid. Many firms have eased into hybrid operating models and have hardly skipped a beat. Some have already publicly stated that this model is permanent.

But there are some emerging trends that justify three new predictions.

#1 Fewer legal secretaries and assistants

Over the past few months, some firms have reported increases in overall production but lower productivity amongst legal secretaries and assistants. Lawyer self-sufficiency and the move to working from home have been the primary reasons cited for this shift.

It’s not too much of a leap to suggest many firms will look to reduce secretarial support ratios by a combination of redundancies and retraining of some assistants as paralegals.

One of the possible consequences of reducing secretarial numbers is a more fragmented work culture. Secretaries often provide a bridge between people and practices by sharing news and gossip, fostering relationships and retelling stories.

They offer a valuable pastoral care role, especially when the senior legal practitioners are EQ-deprived. Without this cultural glue, firms run the risk of being more productive but less human.

#2 Renewed respect for HR

In many firms, the HR team has kept the ship sailing. This is no mean feat given the speed, scale and scope of change required, and the fact they operate with little formal authority within a partnership structure.

There is always extreme sensitivity around changes in people’s pay, promotions, leave entitlements, workloads and future job prospects. HR practitioners have advised on these issues as well as resource strategy, communication, mental health, resilience and fostering a strong team vibe.

Pre-Covid19, it was not uncommon for firms to suffer from the “HR standoff’. In one corner, the HR team members would complain about the firm’s partners being disrespectful and disempowering. In the opposite corner, the firm’s partners would regard HR as being process, not outcome-driven and uncommercial.

I think this standoff will be mostly a thing of the past, especially in firms where HR has risen to the challenge.

#3 Reset in decision-making

To deal with the government-imposed lockdown in March 2020, firms needed to make big decisions quickly. Managing partners were given the authority by the broader partnership to address the crisis. It appears many of these senior leaders accepted this mandate and blossomed with their increased power and autonomy.

Five months on and many firms have not shifted significantly away from the March model. With relentless partner workloads and no in-person partner meetings, the firm’s executives have largely kept their decision rights.

I expect that post-corona the pendulum will swing back slightly, but this recent experience reveals that the firm can still prosper without every partner having a say on everything.

Is HWL Ebsworth Limited a buy?

In Articles, Commentary on 30 August 2020 at 12:35 pm

Full text of my opinion piece first published in the Australian Financial Review on 27 August 2020.

Earlier this week, the Australian Financial Review reported that HWL Ebsworth (HWLE) was preparing to list the firm on the ASX with a $1 Billion-plus valuation.

While details are scant at this stage, it is worth asking whether stockbrokers will recommend a BUY when the HWLE Limited prospectus is issued?

My prediction is they will give this IPO a thumbs down for five main reasons.

#1 Insufficient surplus

As a listed entity, HWLE partners will have to share a portion of the firm’s profits with external shareholders. For the sake of argument assume the current partners enjoy average earnings of $1.5 million per annum. In the future, partner earnings – salary plus bonus minus profit share – might reduce to say $1 million. The incumbent partners will most likely accept a reduced annual income given their significant capital gain upon listing.

This business case seems logical but misses one key point – there is a fiercely competitive market for top talent. Many of the best HWLE partners are proven rainmakers will still be able to command incomes around $1.5 million or more at other non-listed law firms or by setting up their own practice when their employment and escrow handcuffs come off.

At $1 million – the maximum the firm can pay and still maintain dividend payments – HWLE Limited will be way off the mark in attracting any new ‘$1.5 million’ partners.

Over the long term, there’s insufficient surplus to keep both partners and external shareholders happy.

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#2 Clients don’t buy the firm

When Shine Justice Limited first listed on the ASX, they presented strong evidence that their personal injury clients chose them because they trusted the firm’s brand and were largely lawyer agnostic.  When IPH listed, investors were enticed by a large proportion of annuity income from patent and TM renewals and an ambitious plan to scale.

When it comes to HWLE’s mostly business-to-business relationships, research shows that clients are much more discerning around who does their work.

HWLE external shareholders will not be buying a company with a strong brand with sticky institutional client relationships. They will be buying a collection of individual portable practices, each with their own reputation and client following.

#3 Vague growth story

External shareholders examining the IPO prospectus will be looking for a compelling growth story. They will want to see how a fresh capital injection will drive shareholder value.

Under Juan Martinez’s leadership, HWLE has a solid track record of acquiring legal practices without the need to splash much cash. Economies of scale work well in mining but less so in premium legal where even boutique firms can generate supernormal profits. Despite all the hype, there’s no legal technology yet available that will create a sustainable cost or client service advantage. Creating a multi-disciplinary practice or moving offshore is fraught with risk.

So, unless I’m missing something, the growth plan beyond more of the same seems less than convincing.

#4 Key person risk

From interviews with former staff, it appears that Juan Martinez has a robust directed leadership style. Overheads are kept to a minimum and all lawyers are encouraged to be on the tools all the time to compensate for below-market pricing.

This is the operating model that has been the bedrock of HWLE’s success to date.

Given Mr Martinez’s tenure and track record, the market will have many questions over the strength of HWLE’s bench. If the proverbial bus had to arrive who will keep the firm together and herd the cats? I’d imagine the firm’s value will be discounted heavily because of this key person risk.

#5 More losses than wins

Future investors in HWLE will have a good look at the investment category and proceed with caution. A 20-year analysis of law and accounting firm IPOs in Australia reveals far more losses than wins, especially for external investors. This includes firms like Stockfords, Harts and Slater & Gordon.

One of the reasons for these failures is the loss of the partnership culture that underpins their initial success. This culture comes from the incumbent partners’ sense of proprietorship, stewardship, collegiality and identity. Shifting from partner to employee is a big shock to many. Financial transparency, share price volatility and an added compliance burden all often have a negative cultural impact.

In conclusion

I have drawn strong conclusions about the potential float of HWLE without access to any specific details. I look forward to reviewing their IPO prospectus and seeing how wrong I am. But if I’m not, buyer beware!

How your law firm can limit virus hit to bottom line

In Articles, Commentary on 7 August 2020 at 3:42 pm

The full text of my 7 August 2020 opinion piece first published in the Australian Financial Review.

There is every chance that COVID-19 will mean a big hit to your firm’s revenue for the 2020-21 financial year. So, what levers are you using to limit the downside impact on profitability?

Greg Keith, the chief executive of accounting firm Grant Thornton, recently indicated he was anticipating a decline of 8.5 per cent in revenue and 33 per cent in profit.

It means that for every 1 per cent drop in income, they are forecasting a fall of nearly 4 per cent in profits.

Accounting firms, like law firms, are mostly high fixed-cost businesses that are super-sensitive to changes in revenue – both on the downside and the upside.

To limit the profit impact, firms tend to first cut non-essential spending like travel and entertainment. After these “easy” savings are exhausted, reducing staff numbers comes into the frame.

While there are obvious short-term benefits – staffing can comprise 60 per cent of all expenses – there’s a significant risk of not having enough of the right resources on hand when demand picks up. So, the 2020-21 saving needs to be weighed up against the full cost of re-hiring and training in the future.

In my view, there are two areas where firms could do a lot better to enhance profitability without letting people go – pricing and the sharing of resources.

Pricing for profit

Over the last few years, most mid-sized and large firms have worked on their pricing practices.

With a significant market downturn and price war on the cards, one firm recently redoubled its support for partners to preserve and capture value through price. This included video training modules on value articulation, gamified programs around price negotiation, improved analytics, new pricing tools [like Price High or Low 😀] and more direct hand-holding for new business pitches.

Some firms are adopting a range of creative strategies to meet client needs rather than merely dropping price. They include:

  • Adjusting payment terms and conditions so strapped clients are more willing to brief the firm rather than others;
  • Offering non-time-based pricing structures such as subscriptions, contingency fees or amortising fees;
  • Special promotions in ‘ring-fenced’ service areas to avoid across-the-board rate cuts and safeguard the firm’s brand position; and
  • Offering options at different price points.

One law firm offers its clients three pricing options on every new matter. They’ve adapted Qantas’ pricing approach by offering the equivalent of the airline’s Red e-Deal, Flex and Business Class options.  As with Qantas, each option has the same core benefits around quality and reliability but differ in terms of the format of the deliverables, roles, timing and scope.

Another firm analysed their top 100 clients to determine how each was being affected so they could tailor messages and offers. In one instance, this led to a new digital service offering as some clients moved to virtual selling and distributed operations. In another case, they shifted to a self-service model for a client going through a major cost-cutting exercise.

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Resource sharing

I was recently advising a law firm where analysis of time records revealed that some individuals and teams were extremely busy while others were well below capacity.

When I asked why resources were not shared to even out workloads, the most common response was that lawyers could not easily work outside their area of specialisation.

Not satisfied with that objection, I delved a bit deeper. My enquiries revealed a range of constraints – cultural, structural and personality – to collaboration. For some partners, “letting my people go” was a sign of failure. For others, they didn’t see any direct financial incentive to share resources, so they didn’t bother. In one office, each practice team saw itself as a self-contained business, and the prevailing mindset was more competitive rather than co-operative.

In good times, there’s often enough fat in the system to ignore these problems, But if your firm is looking at an equation that means every 1 per cent drop in revenue leads to a 4 per cent drop in profits, then you might need to change your thinking.

Will new partners need to keep grinding away?

In Articles, Commentary on 13 July 2020 at 6:18 pm

Full text of my opinion piece first published in the Australian Financial Review on 9 July 2020.

Most practice teams in the larger law firms have been set up with partners as the “finders” and “minders” and associates as “grinders”.

A decade’s worth of time records analysed by Thomson Reuters Peer Monitor shows that associates have around 10 more billable hours per month on average than partners in the same firm.

However, in April and May 2020 – the first full months of the COVID-19 lockdown and remote working – this long-term trend reversed and partners recorded more billable hours than associates.

There are two questions worth asking. Why are partners producing more now? Can all the new partners in the Financial Review Law Partnership Survey expect a permanent change in their role? In other words, will they have to be finders, minders and grinders?

AFR July

Why now?

Many law firm clients went into crisis mode with the onset of the coronavirus. Deals needed to be completed quickly. Funding needed to be secured urgently. Disputes on unfulfilled contracts needed rapid resolution. Almost daily changes to government regulation needed interpretation and action.

To deal with these pressing and complex issues many clients indicated a strong preference to get more direct access to partners. This meant fewer opportunities for delegation to associates.

Cost-conscious clients also had less tolerance for juniors being allowed to learn on these matters. As one general counsel put it to me: “I was happy to see one maybe two people [from the law firm] on [Microsoft] Teams, but not a football team.”

Another factor that has led to the increase in partner hours at some firms is partners holding on to more work due to fear of a broader market slowdown so they can hit their personal billing targets.

During the GFC, many large firms cut partner numbers through a combination of de-equitisation, early retirements, dismissals and reduced promotions.

While many firms now prefer measuring the contribution of a team rather than an individual, having a healthy personal practice can strengthen a partner’s case for retention if things get tough. In recent weeks, it appears that some partners and associates have been getting a little tired of working from home.

After the rush of adrenalin in dealing with the crisis and keeping connected during March and April, there’s now slightly less enthusiasm for the weekly video drinks – and growing frustration with the clunkiness of a distributed workforce.

Supervision, training and delegation is hard enough when everyone is co-located and physically present in a purpose-designed city office. It’s that much harder when associates are working from a kitchen table in a shared rental apartment with variable NBN speeds.

As time moves on, some partners might resort to the easier – though strategically flawed – option of doing most of the work themselves.

Will there be a permanent change?

No, and yes.

Leverage of non-partner fee-earners is at the heart of the law firm business model. The economics of having lots of associates doing lots of production will not change in the years ahead. Effective and efficient delivery of larger transactions, projects and disputes will still require teams of lawyers, paralegals and legal technologists at different levels.

Over time, firms that don’t tailor their approach for each project will lose out to those that do.

When demand returns, the issues around less delegation should ease. Intransigent hoarders will get caught out and move on – or be moved on.

As technology and workflows improve over time, the clunkiness of the remote workforce should diminish and become less of a handbrake.

One change that will hopefully stick is that of the law firm partner as the client’s primary strategic risk advisor. The coronavirus crisis has revealed the relevance of experienced lawyers in assisting clients on things that matter. This period should hopefully build their confidence as strategic advisors from a legal perspective and not just narrow technical legal specialists.

The discussion above suggests that perhaps the finder minder grinder characterisation is a little out of date.

A better description of the role of partner is that of a strategic advisor and leader – a thought leader, a team leader, a client account leader, a project leader and a sales leader.

The winners will be those firms that recruit and develop outstanding legal leaders and not just see their associates as high-billable grinders.

Does your law firm really need a barista?

In Articles, Commentary on 11 June 2020 at 2:14 pm

Full text of my opinion piece first published in the Australian Financial Review on 4 June 2020.

For the past three months, many law firms have been in crisis management mode.

The focus has been on ensuring staff safety, staying close to clients, sustaining productivity and shoring up financial reserves. The mindset has been mainly about conservation and survival.

It’s time now time to look up and to look ahead – to work out what’s needed to succeed in the next normal.

Here are four things to think about in creating your future.

Screen Shot 2020-06-05 at 8.49.43 am copy

#1 Organise for a hybrid workforce

Most law firms will seek to capitalise on the success of remote working and will adopt a model in which people work two or three days a week in the office and the balance at home. While this offers benefits in terms of staff flexibility, reduced commute times and lower occupancy costs, the rhythms of office life will be very different from life before coronavirus.

Firms will need to help their staff create boundaries and new work habits. This includes setting clear ‘office hours’; finding new ways to socialise that replace the serendipitous corridor bump; ensuring consistent supervision of graduates and clerks; and providing regular and balanced performance feedback.

#2 Speed up decision-making and execution

During the ten days from March 16-26, most law firms discovered that if push comes to shove, they can execute big decisions very quickly.

My advice: keep going!

The short-term public health crisis helped concentrate decision-making power. And it appears that in the main those vested with that power acted promptly and professionally.

Firms should build on this experience and streamline decision-making processes for times when things are back to normal. It could mean less consultation on trivial matters, fewer meetings, better communication and greater respect and appreciation for leadership roles.

Most law firms are designed as network organisations with self-managed practice teams as nodes and a small central bureaucracy. In theory, this should make them agile and responsive, but the reality is often quite different. Firms should harness their structural strength to move earlier and faster.

#3 Plan and budget with less inertia

The coronavirus crisis has given firms the opportunity to assess the merits of every revenue and expense item.  Recent McKinsey analysis shows most organisations only reallocate 2 to 3 per cent of their budgets year to year. But those that do more—in the order of 8 to 10 per cent—create more value.

While starting each year’s budget with a blank sheet might be overkill, reviewing each item on a two- or three-year rotating cycle should ensure smarter allocation of resources.

Revenue targets might set with an honest assessment of market potential and how your team stacks up against key competitors. Expense items can be set with a clear-headed view on value creation.

#4 Personalise the client experience with scale

The client experience pre-coronavirus included numerous face-to-face meetings; document preparation shared via email; and multi-touch file handling.

The evidence from the past few months is that productive client meetings can still be held without a barista on call; documents can be prepared collaboratively in real-time and remotely; and that most aspects of file management can be automated.

In designing the firm of the future, think about creating a client experience that is personalised, streamlined and scalable.

This is the time to start imagining your firm as it should be. If you stay in conserve mode too long, you will land up being two or three steps behind those that are determined to create their own future.

Love the tech you’re with, at least for now

In Articles, Commentary, Legal Technology on 11 May 2020 at 11:16 am

Full text of opinion piece first published in the Australian Financial Review on 7 May 2020.

One of the key decisions law firms need to make during the COVID-19 crisis concerns investment in new legal technology and innovation.

While some firms are keeping their R&D spend intact, anecdotal evidence suggests the majority are going into some form of hibernation.

AFR op-ed May 2020 copy

Regardless of whether your firm decided to stop, reduce or continue, there is a strong business case for getting more out of what you already have. It’s not quite as exciting as playing with shiny new tech toys, but sometimes – as in the words of that great Stephen Stills’ song – it’s better to “love the one you’re with”.

To make more of your existing technology it’s important to ask three questions.

Can our partners and lawyers use it well? 

Taking Microsoft Word as an example, my guess is that your firm currently uses it semi-well.

Most partners and lawyers use basic features like track changes, automated numbering, cross-referencing, indexing and sections. However, I suspect only a handful would be good at using styles, templates, programmed auto-corrects, tailored designs and macros.

There is much to gain in terms of lawyers’ and clients’, time and money from investing in targeted Word training. Not having everyone at a base level proficiency in the basic tool of the trade is going to bite hard especially if you are looking to reduce secretarial support ratios or to have a more flexible work-from-home operating model.

Can we make it work better for us?

The COVID-19 crisis is also a good time to experiment with add-ins, plug-ins and tools that add power and functionality to your existing applications.

It is much easier to extend an existing technology with a familiar user interface than adopt something completely new. What’s more, existing apps are usually fully deployed, paid for and supported.

Taking Word again as an example, there is a growing number of complementary tools on the market that are worth investigating. David Bushby, a lawtech expert from InCounsel, has kindly curated this list:

Are we becoming too dependent on it or its vendor? 

During COVID-19 crisis, there has been a rapid uptake of Microsoft’s video-conferencing tool, Teams. It appears that the latter has become the favoured video application of many large law firms and the Federal Court.

Given the vast installed base of the Office Suite and now Teams, it’s not hard to imagine that Microsoft will attempt to monetize its strong competitive position further.

One scenario involves them adding code into documents and emails to capture data around document preparation time, quality, cost, originality, storage and authorship. Combining this valuable data with its established software suite and ‘voila!’ – they will control or strongly influence the entire legal supply chain.

In this scenario, it would be tough for individual firms to counteract Microsoft’s power. However, new collaborative application platforms owned by law firms, like Reynen Court in the USA, may point to a future with more options.

In this future, there may be opportunities to follow the advice of Wet Wet Wet rather than Stephen Stills – and make sure your “love is all around”.

A post-corona legal world: more kindness, less paper

In Articles, Commentary on 4 April 2020 at 4:45 pm

Full text of opinion piece first published in the Australian Financial Review on 2 April 2020.

At some point later this year or early next we will move into a post-Corona world. What might that world look like from a law firm perspective? On my reckoning, it will involve deeper relationships, less paper and more flexibility.

Deeper relationships

There is much research that shows that people that go through acute stress together come out at the other end with stronger relationships. War is one of the greatest stresses anyone could ever encounter yet it also often leads to deep human friendships and incredible acts of heroism and sacrifice.

As Stanford’s Emma Seppala states, “Understanding our shared vulnerability — that life makes no promises — may be frightening, but it can inspire kindness, connection, and desire to stand together and support each other.”

To illustrate this point, I heard a story this week of a law firm partner checking in every day with every person in her team via Zoom. These check-ins covered some work matters but mostly were about sharing the fears, loss, grief and the black humour of the pandemic and the remote working experience. She said she encouraged her team members not to avoid interruptions from partners, kids and pets during the video calls.

The partner indicated her surprise as to how deeply personal the conversations had become, and how much closer she felt with her team members. Seeing her team members at home interacting with loved ones added a whole new level of understanding and appreciation of them as individuals.

She imagines a post-corona world with much deeper social connections – with staff and clients. Going through a crisis together can help engender trust and understanding, the foundations of all solid business-to-business relationships.

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Source: AFR

Less paper

Over the past decade, many law firms have invested in sophisticated and expensive document management systems to reduce paper, streamline processes and improve control. It is a common experience that firms don’t realise the full benefits of these systems because a small group of lawyers, often senior partners, refuse to change their habits and prefer to edit in hardcopy only and/or keep paper copies of everything.

The coronavirus has forced some law firm partners to change their rusted-on work habits in about one week. When the hardcopy file is inaccessible and no assistant is at their side, only then will the penny really drop that a change is required and the painful process of stepping outside comfort zones will commence.

In a post-corona world, there will be less paper and greater compliance with enterprise-wide systems that promise so much but often deliver less. Allied to this there is likely to more defined workflows, greater support for cloud-based applications and better use of deal platforms.

As legal project management expert Ron Friedman notes, “Litigation and investigations have long employed [and co-located] armies of contract lawyers to review documents for responsiveness and privilege… The technology exists for secure, remote document review. Though supervision and collaboration may be harder working remotely, it does tap a much broader labour pool [and meet social distancing rules].”

More flexibility

Pre-corona, flexible working arrangements were mostly the exception rather than the rule in law land. The past two weeks have reversed this statistic.

The generally positive experience of meeting via videoconference, accessing files remotely, collaborating online on shared documents and engaging staff and clients virtually has brought a new realisation: actually, we don’t need everyone at the office all the time. If people want the option to work flexibly it can be done without destroying productivity or team dynamics.

While I don’t foresee a shift post-corona to complete remote working or agile office set-ups (that is, an office with no allocated desks), I would expect firms to be far more comfortable with people seeking flexible work arrangements that include some regular time working from home or other locations outside of the office.

Remote working must be balanced with having a team congregate in one space to collaborate to solve complex client problems, to share knowledge and to socialise. There is still no technological substitute for face-to-face interactions and the serendipitous opportunities that come from overhearing conversations – and unexpected bumping into colleagues in corridors and kitchens.

In conclusion

In conclusion, the post-corona legal world will be different. While there’s a lot to fret about, there are also some important positives to reflect and focus on.

Firms must plan for a profit hit from the commission’s ruling

In Articles, Commentary on 6 March 2020 at 5:54 pm

Full text of my opinion piece first published in the Australian Financial Review on 6 March 2020.

A law firm’s budget and its five-year projections are based on key assumptions around staffing costs and productivity. The recent Fair Work ruling could potentially blow these assumptions out the water.

The key lesson is to be prepared for different scenarios and have contingency plans in place for some award mayhem.

AFR 6 March Fair Work

The Fair Work Commission has ordered law firms – from March 1 – to record all hours worked by graduate lawyers and paralegals to ensure they are not paid below minimum rates or are losing out on penalties if they work long hours.

It is unclear how many junior workers will actually take advantage of these new provisions as the enforcement of an industrial award runs counter to the professional culture in most law firms.

Moreover, the bargaining position of juniors is weak because of the oversupply of graduates. Council of Australian Law Deans data revealed that Australia’s 39 law schools graduated 7,583 students in 2015. Less than 40 per cent of those students will get legal traineeship positions in law firms.

Despite these constraints, it is not hard to imagine some overworked grad preparing a spreadsheet to prove they’ve been paid well below the minimum wage per hour and claim a bonus – say 20 per cent – for overtime. News of this payment would spread quickly and Fair Work claims would soon become commonplace.

Three scenarios

Only time will tell whether that happens, but it is worth doing some scenario planning to assess the potential impact.

There are three Fair Work-related scenarios worth considering.

  • One is a business as usual situation, with the take up being minimal.
  • Two is that it will be the new norm, with most graduate lawyers and paralegals claiming their full entitlements.
  • The third involves bracket creep, with claims for overtime and penalties extending all the way up the pyramid to associates and senior associates.

If you want to have a sleepless night or three, ask your chief financial officer to model the financial impact of the bracket creep scenario at your firm. With staff comprising about 60 per cent of all costs, the profit hit could be huge.

However, one could argue that hard cash overtime penalties will force more firms to adopt more sustainable work practices, which might improve the mental health of a notoriously fragile profession.

Contingency plans

Planning for the bracket creep scenario will likely involve better resource management, supervision and cross-practice collaboration.

For example, most firms do little to even-out workloads where some teams are operating way above capacity and others well below. If a firm suddenly has to pay overtime for a team operating at 150 per cent capacity, you can bet a lot more effort will be made for practice leaders to collaborate and share resources.

While specialist lawyers are clearly not interchangeable, smart and well-trained lawyers are quick learners who can work flexibly across the firm.

Bracket creep could exacerbate bad work habits amongst some partners, but force a change in others.

The hoarders will try to save costs by delegating even less and doing more work themselves. On the other hand, some partners might finally get the message that the key to practice profitability is to optimise leverage, to redesign workflows to make them more effective and efficient, and to lead teams with a style that’s communicative and empowering.

A big increase in staff costs may push some lead some firms to look more closely at legal technology, especially where it could be used as a substitute for labour. The economics of automating contract preparation and review would suddenly become far more attractive. There would also be more incentives to use non-award staff to do legal process work.

My prediction

On balance I think the first scenario – business as usual – is the most likely. But all firms should be considering this question: what would do if awards governed your rewards?

 

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