Monthly Archives: March 2012

Football on Trial

On March 23rd, a group of 126 former professional football players led by former Washington Redskins quarterback Mark Rypien filed a class-action lawsuit against the National Football League in the U.S. District Court for the Eastern District of Pennsylvania.  The plaintiffs allege that the NFL willfully hid information about the risks of repetitive traumatic brain injury from its players, many of whom now suffer brain damage, memory loss and other neurological disorders.  According to the website NFL Concussion Litigation, Rypien v. NFL joins a list of more than fifty similar lawsuits filed since August 2011, including several other class actions.  The federal cases are being consolidated in the Eastern District as In re: National Football League Players’ Concussion Injury Litigation for pretrial purposes.

And it is not just sports teams facing litigation.  NFL Concussion Litigation also points to Enriquez v. Easton-Bell Sports & Riddell Sports Group, a consumer class action against the manufacturers of Revolution helmets.  The plaintiffs allege that the helmets failed to deliver on the promise of added protection against head injury, as compared to other football helmets.  The Revolution helmets have been worn by football players at the high school, college and professional level.

This wave of players’ lawsuits and other litigation has prompted speculation from commentators that the debate over head injuries in professional football will have an irreversible impact on the sport.  Blogger Andrew Sullivan takes sides, comparing the situation to the tobacco industry: “So a lucrative industry knowingly destroys the health of the people it makes money off – and keeps the evidence hidden from them. Sound familiar?”

Last month, Tyler Cowen and Kevin Grier discussed how the controversy, which extends beyond professional football into college and high school athletics, could potentially doom the sport:

The most plausible route to the death of football starts with liability suits. Precollegiate football is already sustaining 90,000 or more concussions each year. If ex-players start winning judgments, insurance companies might cease to insure colleges and high schools against football-related lawsuits. Coaches, team physicians, and referees would become increasingly nervous about their financial exposure in our litigious society. If you are coaching a high school football team, or refereeing a game as a volunteer, it is sobering to think that you could be hit with a $2 million lawsuit at any point in time. A lot of people will see it as easier to just stay away.

The key phrase though is “if ex-players start winning judgments.”  Currently, the NFL has yet to lose a single case (one was voluntarily dismissed).  And earlier this month NFL commissioner Roger Goodell sought to demonstrate the league’s commitment to player safety when he issued several large fines and suspended New Orleans Saints head coach Sean Peyton in response to findings that the team was offering “bounties” to players who injured their opponents.

Professional football is a multi-billion dollar sport with an enormous fan base, but the plaintiffs in these cases argue that they have science on their side.  Whatever the future holds for the sport, the debate is sure to keep the lawyers busy.

Posted by Emily Fisher

NLJ 250: “Other” Lawyer Ranks are Growing

Earlier this week, the National Law Journal released its annual ranking of the nation’s largest law firms ranked by lawyer headcount.  Overall, the number of lawyers at NLJ 250 firms increased in 2011 by 2,132 lawyers for a total of 126,293, representing a 1.7% increase from last year.  Not a huge gain, but the first since 2008, the year that saw the highest number of lawyers recorded by the survey.

A large part of the growth in the NLJ 250 headcount was due to two firms involved in large cross-border mergers last year, illustrating the continuing globalization of the legal industry.  In January of last year, Squire Sanders combined with Hammonds (c. 500 lawyers)  in the UK to create a 1,275-lawyer firm, which they grew later in the year with 80+ Perth-based lawyers from Minter Ellison.  In the spring, DLA Piper combined with Australia’s DLA Phillips Fox (c. 600 lawyers) creating a firm with more than 4,000 lawyers, as we reported in MergerWatch.

However, as the survey points out, not all firms gained lawyers – 109 firms recorded declines in headcount – and the gains and losses were certainly not evenly distributed among types of lawyers, but definitely in keeping with the trends we’ve seen over the past few years.  Associate headcount was down 1.3%, but the ranks of “other” lawyers (staff, Counsel or Of Counsel lawyers, but not contract or temporary lawyers) jumped by a whopping 17.2%, reflecting the increasing use of these types of lawyers that often cost firms less to employ and have more experience than associates.  Equity partner ranks declined 1.6%, while the non-equity partner ranks grew by nearly 8%, a further indication that firms appear to be wary of expanding their equity partner ranks.

The 2011 Attorney Staffing Survey, conducted by the Hildebrandt Institute in collaboration with the Professional Development Consortium (“PDC”) and Georgetown University Law Center, saw similar results. The survey polled law firms on their attorney staffing models, including how law firms use non-partner track lawyers like staff and career attorneys. Nearly all of the respondents (97%) had some non-partner track lawyers, with counsel attorneys the most commonly used non-partner track position, followed by staff attorneys and finally career attorneys. 

A number of firms indicated that staff attorneys were generally hired directly into the role and are not ever considered for partnership.   As for compensation, 85% of staff attorneys make less than $150,000 while 74% of counsel attorneys make more than $200,000. Staff attorneys are the most recently established in some of the firms in the survey – nearly 30% of firms with staff attorneys report adopting the position within the past five years, perhaps indicating that law firms are shifting work to less expensive attorneys in response to an increasingly competitive market.

Posted by Marianne Purzycki

Eversheds Pilot Contract Lawyer Service Becomes Permanent

Last October we reported on the launch of a pilot program by UK firm Eversheds aimed at providing contract lawyers to clients to help them deal with fluctuations in their workload.  The service, Eversheds Agile, has now been made “a permanent fixture at the firm,” according to a recent article in Legal WeekGraham Richardson, the Eversheds partner who oversees Agile, explains the innovative program:

 Agile differs from other contract lawyer services as the lawyers are selected, supervised and insured by Eversheds. They are working in the clients’ offices, just like any other member of their team, but with the benefit of access to Eversheds’ support, resources and global reach. We also provide a ‘key findings’ review at the conclusion of each assignment.

The on-demand service has grown to about 80 lawyers, with approximately 20 of the firm’s clients, including Equifax and Police Mutual, having signed on.  The majority of the Agile lawyers have at least “10 years’ post-qualification experience” and “earn 20%-30% more than permanent in-house solicitors in equivalent posts.”

Agile’s success indicates that the market for contract attorney services is diversifying, offering new options and increased flexibility for clients.  A similar program, Lawyers On Demand, offered by UK firm Berwin Leighton Paisner, also provides in-house counsel with freelance lawyers on a contract basis.

Posted by Marianne Purzycki

Does Nonlawyer Ownership of Firms Threaten the Independent Judgment of Lawyers?

The New York State Bar’s Committee on Professional Ethics decided this week that a New York lawyer cannot practice law for an out-of-state or foreign firm owned or managed by nonlawyers, if the lawyer in question practices primarily in New York.

But the issue is far from settled – a new NYSB task force is reviewing the existing prohibition on nonlawyer ownership of law firms.  The American Bar Association’s Commission on Ethics 20/20 is considering a new measure that would modify the Model Rules of Professional Ethics to allow limited, non-controlling ownership of law firms by nonlawyers.  Currently all fifty states follow the Model Rules on this issue.  The one U.S. exception is the District of Columbia, but we’ll get to that in a moment.

In question is what the ABA’s comments to Rule 5.4 refer to as “the lawyer’s professional independence of judgment.”  The fear is that ownership of law firms by nonlawyers would compromise that independence by introducing business interests external to the attorney-client relationship.  Last month, one such client – IBM general counsel Robert Weber – forcefully argued against any change to the current rules in the Wall Street Journal’s Law Blog:

Weber … said the idea is gaining purchase for the wrong reasons: Firms are looking for interest-free capital in tough economic times.

“I don’t know if I’d call it greed, but it’s in the greed ball park,” he said. “When the world was such that lawyers were able to raise their rates 5%, 6%, 10% a year…and profits per partner at big firms and small were outpacing the GDP, you didn’t hear about this.”

He said the profession has grown more selfish in recent years and less focused on clients, which, in turn, has given the idea of outside ownership room to grow.

Yet the idea of nonlawyer ownership, which is indeed a potential source of capital, is gaining traction in the broader legal community.  As we’ve previously discussed, the U.K. last year passed the Legal Services Act, which allows companies to invest in law firms.  Australia also allows the practice.  And the D.C. Bar has modified the old prohibition on nonlawyer ownership.  D.C.’s Rule 5.4(b) allows nonlawyer ownership, provided:

  • The firm is still focused exclusively on providing legal services to clients (so no hybrid law firm/medical practices);
  • All owners and managers agree to abide by D.C.’s Rules of Professional Conduct;
  • Lawyer owners and managers undertake responsibility for nonlawyers in the same way they are responsible for the actions of subordinate lawyers; and
  • The firm puts these conditions in writing.

The question for the ABA and the NYSB, and for concerned clients like Robert Weber, is whether these provisions sufficiently protect the independent judgment of lawyers.  D.C. has clearly decided that they do, and the U.K. and Australia have reached similar conclusions regarding their own legal communities.  Is nonlawyer ownership the future of the U.S. legal profession?  Or will it only serve to undermine the historically sacrosanct relationship between firms and their clients?  Tell us what you think by participating in the poll below or offering your thoughts in the comments.

Posted by Emily Fisher

Compliance Teams: At the Saturation Point?

The explosive growth in regulation in the U.S. and abroad has made it a very tough environment for compliance professionals, who often struggle to keep up with rapidly changing regulations and increasing responsibilities, according to a new survey by Thomson Reuters.  Eighty-four percent of compliance officers in financial services companies believe that the amount of regulatory information published by regulators and exchanges will increase in 2012 and nearly half expect the amount to be significantly higher. Drivers of this growth include:

[T]he splitting apart of the UK Financial Services Authority, an increase in the direct regulatory power of the European Supervisory Authorities and the expansion of several new and existing regulatory agencies in the U.S. as a result of the Dodd-Frank Act. For [financial services] firms, fundamental changes range from the proposed shift of the regulatory perimeter to include shadow banking to the forcible separation of wholesale and retail business for many banks and the increasingly global reach of regulations such as the UK Bribery Act and the U.S. Foreign Account Tax Compliance Act.

Nearly 70% of compliance officers foresee an increase in the amount of time spent interacting with regulators, with more than a quarter expecting the amount of time to increase significantly in 2012.  And as the regulatory burden grows, resources are becoming constrained, limiting the ability of the compliance team to perform vital compliance functions.  Over one-third of respondents spend more than an entire working day each week simply tracking and analyzing regulatory developments.

Increasing demand for experienced compliance professionals is also pushing up the cost of senior staff.  Seventy percent of respondents expect the cost of senior compliance staff to be higher this year. At the same time, only 11% of respondents are expecting a significant increase in their budget for this year, despite the rise in demand for compliance resources.

In addition, many compliance teams are finding it hard to carve out time to coordinate with other parts of the company involved with managing regulatory risk.  Over half of the respondents reported spending less than one hour per week with internal audit teams, while 30% reported spending less than one hour per week consulting with their legal and the risk teams.

And legal departments do have an increasingly important role to play.  The 2011 Law Department Survey from HBR Consulting reports that respondents are forecasting a significant increase in their demand for legal services in regulatory, international and labor & employment practice areas. Fifty-four percent of participants expected an increase in demand in the regulatory practice area, up from 44% last year and “consistent with the continuing focus on regulatory reform and compliance requirements around the world.”

A recent article in Australasian Legal Business notes that one of the major concerns for in-house lawyers is dealing with regulatory issues. One Australian in-house lawyer with more than fifteen years of experience explains the important role that lawyers play in the organization when it comes to regulatory affairs:

 “When they [regulatory affairs] deal with a regulator they’ll have a specific group – so there’s a regulatory affairs area as opposed to it necessarily [going through] the lawyers. How do we keep in check these ‘eager beavers’ keen to appease the regulators? As we know our role is to ensure regulators don’t overstep their authority,” she said.

The Thomson Reuters compliance survey also polled compliance officers on the greatest challenges they faced in the year ahead.  Overwhelmingly, their top two concerns were resources and keeping on top of regulatory changes.  “However, this survey indicates that rather than gaining the upper hand in managing compliance functions, many companies are increasingly struggling to keep up.” said Scott McCleskey, global head of financial services regulation, Thomson Reuters GRC.  It is clear that compliance officers are under severe pressure and it is also equally clear that a company will only thrive if it incorporates a strong compliance ethos into its corporate culture and builds a strong corporate compliance function.  Firms with compliance teams “at the saturation” point should not be the norm.

Posted by Marianne Purzycki

Salaries Give U.S. Firms an Edge in the Hong Kong Market

According to an article this week by Rachel Armstrong of Reuters and Artemisia Ng of Asian Legal Business, U.S. firms are beginning to gain on their U.K. competitors in the Hong Kong market.  As we’ve previously discussed, increased participation by U.S. firms in Hong Kong has recently led to a “war for talent” among global firms practicing there.  Armstrong and Ng report that U.S. firms may have an edge in winning that war:

A major factor helping U.S. firms make their Hong Kong practices competitive so quickly has been their willingness to offer “New York rates”, the standard pay scale for Wall Street lawyers.

“In comparison to magic circle and top-tier law firms, U.S. firms can offer increased salaries, sometimes doubling those of the magic circle,” said Marc Burrage, regional director of recruitment firm Hays in Hong Kong.

A survey by CML Recruitment shows that newly qualified lawyers at U.S. firms in Hong Kong tend to earn around HK$1.24 million ($159,700) a year whereas a UK firm would offer between HK$864,000 and HK$936,000.

Although the recent slowdown in Hong Kong’s capital markets has stemmed hiring by global firms, the market remains competitive.  It led the world in IPOs in both 2010 and 2011, raising more than $30 billion in new listings last year.

Posted by Emily Fisher

Turkey: Private Equity Oasis

Turkey, one of the fastest growing economies in the world, has recently sparked the interest of private equity investors hungry for deals.  With a strong GDP growth rate of 8% in 2011 and a large and growing population, Turkey is highly attractive to many investors as well as to law firms.

Growth in the Turkish mergers & acquisitions market has been strong over the last two years.  M&A deals with Turkish targets grew to 218 deals worth $24.9 billion last year from 167 deals worth just $4.0 billion in 2009, according to Thomson Reuters.  And while buyout funds represented only a small percentage of the global private equity deal market –  $39.8 million in 2011 – that might be about to change.  Attention has been converging on Turkey as deal activity elsewhere has been put on hold.  Private equity investors looking for a stable market as an alternative to the debt-troubled Eurozone and Middle Eastern countries embroiled in constant political turmoil having been increasingly focused on Turkey.  

“There are more than 50 private equity firms trying to make deals in Turkey now, and it’s becoming a very competitive market, so most of the firms target midmarket deal sizes because larger transactions are only few,” said Can Deldag, co-head of Carlyle MENA Partners, in a recent article in the DealBook feature of the New York Times.  Carlyle Group, Advent International, Bridgepoint and Mid Europa are among the private equity firms that have opened offices in Turkey.  Turkey’s local private equity shops, such as Actera and Turkven, are also active, some raising funds for a second and third time.

One reason buyout funds have not been as active in the past is the prevalence of family-owned businesses in the country, a challenge for private equity investors.  “There is a huge demand for targets but there are problems of transparency and pricing. That’s why you do not see a lot of closings,” notes Murat Ozgen, head of the private equity arm at IS Bank, Turkey’s largest private bank.  However, as family businesses mature and as second- and third- generation owners seek investment to expand their base of operations, the opportunities for private equity investment grow.

Industry sectors that are attractive to investors include healthcare and consumer-facing businesses, exemplified by the sale announced last December of a 50% stake in hospital chain Acibadem Saglik Hizmetleri & Ticaret for about $1 billion by Dubai-based private equity firm Abraaj Capital.  In February 2011, TPG Capital and Actera announced that it would sell Mey Icki Sanayi, a Turkish spirits company, to global distiller Diageo for $2.1 billion, Turkey’s biggest private equity sale to date. More sales are likely this year, including hospitals group Medical Park, part-owned by Carlyle, and Sabah newspaper and ATV television from Turkish group Calik.

Law Firms

And as the deals flow, law firms follow.  As we reported last fall, there has been a growing interest by foreign law firms in establishing a foothold in Turkey, with the number of firms operating in the market doubling since 2009. Some of the earliest players were White & Case, SNR Denton, Gide Loyrette Nouel, Salans and Curtis, Mallet-Prevost.  The last two years have seen the arrival of global firms such as Baker & McKenzie, DLA Piper and Clifford Chance, as well as Chadbourne & Parke, German firm Graf von Westphalen and a number of Central & Eastern Europe-based firms, including Kinstellar (Linklaters’ CEE spin-off) and Austria’s Schoenherr. 

The newest entrants to the market include Allen & Overy and Yingke, China’s second-largest firm by lawyer headcount, as well as McDermott Will & Emery which recently expanded its health law practice into Turkey via a preferred provider relationship with Fora & Sanli, an Istanbul-based commercial law firm with health regulatory and corporate experience.

While the number of foreign law firms remains relatively small, and strict Turkish bar rules prevent foreign firms from opening local offices that practice Turkish law, at least as far as private equity mandates go, there is reason for optimism.  Taufiq Rahim, director of Dubai-based strategy firm Globesight, notes that, “Turkey has its own risks and problems, of course, but has proven itself a kind of oasis of stability and growth over the last year, and private equity players are clearly taking note.”

Posted by Marianne Purzycki

Think a Top Law School is the Ticket to BigLaw Partnership? Think Again.

According to a provocative article by Vivia Chen at The Careerist, graduates of certain local and regional law schools stand a better chance at making partner at NLJ 250 firms than do alums from the nation’s most elite law programs:

[Professor William] Henderson finds that the ratio of first-year hires to new partners was 0.85 for Loyola (it had 11 first-year associates and 13 new partners in the NLJ 250 firms this year), and 5.12 for Chicago (87 first-year associates and 17 new partners). According to this calculation, every Loyola grad hired by Big Law will make partner, while only one out of five University of Chicago grad will reach that pinnacle.

And Loyola and Chicago are not anomalies.  Henderson (of the Indiana University Maurer School of Law) found that regional schools like the University of Houston and University of Minnesota also have significantly more favorable ratios of hires to partners then do Harvard, Yale or Stanford.

Over on the Legal Whiteboard blog, Professor Henderson offers several theories for these somewhat unexpected results.  He highlights the selection effects that may be at play – because he limited his research to the NLJ 250, he may have been comparing the top graduates from more regional schools against a broader range of graduates from more elite institutions.  Graduates of top law schools are also more likely to wind up at the most prestigious (and competitive) law firms, where the path to partnership may be more challenging.  And he notes that graduates of higher ranked schools may have more options outside of BigLaw, leading them to drop out of large firms more frequently.

Geography may play a role as well.  Graduates of top schools are more likely to go to law firms in particularly demanding markets like New York and San Francisco, where long hours and heavy competition may drive up the rate of attrition.  It is notable that the regional schools highlighted in Chen’s article are located not in major coastal cities, but in the Midwest and Texas.  I would be curious to see where a school like Fordham, which is more regional than Columbia or NYU yet sends a significant percentage of its graduates into the New York market, fits into the landscape.

Still, the numbers raise some interesting questions for law firms as they recruit the next generation of partners.

Posted by Emily Fisher

Law Firms Get Real About Alternative Fees

Alternative fee agreements have been a hot topic in the legal industry for some time now, and as the economic downturn has increased competition for clients, the dialogue about AFAs has only increased.  At this point, few law firms will argue that AFAs are a bad idea.  Instead, the conversation has turned to the practical – just how do firms and their clients implement an alternative arrangement that justly compensates the firm while providing value and predictability to the client?

Rachel Zahorsky, for the ABA Journal, addresses this question in an article this week about the challenges and opportunities firms have encountered on the sometimes rocky road from hourly billing to flat fees.  The opportunities are frequently obvious; Rebecca Weinstein Bacon of Bartlit Beck Herman Palenchar & Scott cites the way AFAs help avoid some of the conflicting interests inherent in hourly billing:

“If you determine it is necessary to have a meeting with three partners, there’s nothing stopping you from doing that.  Whereas traditionally, if you have three partners in a meeting you might wonder, ‘What will the client think? Will this be too many people?  Will I have to write off hours?’”

But the challenges can be surprising.  AFA’s can seem like a simple solution to billing woes, but Zahorsky reports that the final agreement often introduces significant complexities, such as deadline rate changes, discounts and incentives.  The final agreement can be hard to implement, and even harder to later evaluate:

Standard billing and tracking models can’t provide the analysis necessary for lawyers to effectively and accurately predict how a future matter should be priced, [Hal M. Stewart of Chadbourne & Parke] says.  Firms need to develop the infrastructure and fee-analysis programs to effectively implement alternative pricing models from cradle to grave, including initial proposals, case management, staffing standards, revenue analysis and post-engagement reviews.

Still, the ultimate pay-off can be worth it.  Perhaps the most interesting part of Zahorsky’s article is her account of how Shook Hardy & Bacon reached its current arrangement with Tyco, under which the firm handles all of the company’s product liability, automobile and general liability litigation.  Although questions remain, it’s worth a read.

Posted by Emily Fisher

Do Unfunded Pensions Breed Loyalty? Or Resentment?

Which issue is more important to law firms: maximizing profits today, or planning for succession tomorrow?  It’s a trick question, of course.  Law firms don’t really have the luxury of picking one or the other.  But this week the legal industry is focusing in on a topic that sometimes pits profits against succession planning: unfunded pensions.

With new reporting from The American Lawyer and the Wall Street Journal (subscription required), unfunded pension plans are in the spotlight after nearly two decades of declining popularity with law firms.  But even as many firms have phased out unfunded pensions in favor of alternative retirement plans, a number of prominent firms have retained them.  The American Lawyer takes a dim view of the viability of such plans, painting a dire picture of the economic burden they place on firms:

Simple demographics dictate that payouts to retired partners will be an increasing weight on profits for at least the next decade, and maybe two. “The 45-year-old types are enormously productive and are diverting money to satisfy 68-year-olds,” says Peter Kalis, chair of K&L Gates, a firm that phased out its unfunded plan in the late 1980s. “When those [younger partners] are attracted to go to firms without that overhang, that business model [of the firm with the pension] fails. That day may never come, but it’s important to consider.”

The math is hard to argue, which is why so many firms have abandoned unfunded pensions in recent years.  As Akin Gump chairman R. Bruce McLean told the WSJ, “The difficulty is that at some point in time, some percentage of your income is siphoned off the top.”  For the partners who have yet to retire, the income diverted to pension payouts could become a source of resentment.  And in some cases, unfunded pensions could put the entire firm in jeopardy – pension liabilities are sometimes cited as a major reason for WolfBlock’s dissolution in 2009.

But if that’s the case why would so many prominent and profitable firms continue to fund pension plans from current earnings?  One argument is that unfunded plans encourage succession planning.  The theory is that retiring partners will be more likely to engage in meaningful client transitions to younger partners if their pension payouts will soon be funded by the work of those younger partners (provided firms properly link their pensions to effective transitions, as Joseph B. Altonji suggests in a new article, subscription required).  Some firms also contend that unfunded plans breed loyalty by serving as a reward for years of service.  Gibson Dunn & Crutcher, for instance, takes pride in what its pension plan says about the firm.  Managing partner Kenneth Doran told the WSJ, “Partners take comfort in the fact that it is there.  I think it’s an important part of our culture.”

Perhaps there is no real debate here at all.  While most firms have reached the conclusion that unfunded pension plans are simply too risky, does it matter that a minority of firms hold onto them?  So long as these firms remain profitable, there may be a good argument for some diversity in the industry on this issue.  Certainly no firm has completely solved the succession planning conundrum, and unfunded pensions may allow some firms to experiment with solutions.

But there is another fly in the ointment.  The Daily Journal reported last month that merger talks between Fulbright & Jaworski and Pillsbury Winthrop Shaw Pittman slowed, apparently due in part to Pillsbury’s concerns about Fulbright’s unfunded pension plan.  Fulbright reportedly froze the pension program in 2010, but many of its partners are still entitled to benefits.  As consolidation continues to be a major legal industry trend, unfunded pensions may continue to be an issue for everyone.

Posted by Emily Fisher