What to make of the SRA’s Independence Survey?

The SRA’s polling data which – I would say impressionistically – has garnered unusually high levels of media interest outside of the legal press – is worth a quick look. I’m not sure how relevant it is to the current debate about extent of the SRA’s independence from the Law Society. As the questions are phrased and asked, the survey respondents may have got the impression that profession was self-regulated and independence was being considered.   The truth is much more nuanced; in fact, it’s not really like that at all. What the SRA and the Law Society are really fighting about is the difference between substantial independence and total independence from the profession’s representative body.  Oh, and money.  It’s a fair and important fight but I’m not sure the consumer poll gives us much insight into either question.  And I say that as an instinctive supporter of a more independent model.  Indeed, to prove the point, I look forward to the Law Society conducting a futile counter-poll which says something like, Do you agree that the experts should have a say in regulation of legal services or do you think that faceless* bureaucrats who will pander to government and not protect your interests should build their own empire.

Even so, there is something of interest in the data.  That is the extent to which the public appear to mistrust self-regulation.  Only 6% though that solicitors should be self-regulated. No matter how much one wonders what the public understood by self-regulation, or whether they understood that solicitors aren’t currently self-regulated, that is a very low figure indeed.  The second  thing of interest is the very high proportion of the public felt that solicitors needed to be regulated: 86%.  I wonder how much that figure will get quoted when the SRA are proposing further deregulation.  We shall see.

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* They’re not really faceless. And I don’t really think the Law Society would conduct such a poll, although some regulators have been almost that dumb in the past.

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Background statistics

The background of trainee solicitors in the larger City firms is under scrutiny again this week.  The Times (£) reports a piece of research done by Chambers suggesting on their sampling (which it is difficult to scrutinise from the story):

69 per cent of the magic circle firms’ trainees had gone to private schools, compared with 31 per cent from state schools.

The position in the City firms generally was more even at 48 per cent/52 per cent, while London firms outside the City and those outside London reported about two thirds of their trainees were from state schools.

Nine of the 18 firms taking part in the City Solicitors Horizons’ initiative to combat the “poshness bias” in the legal profession responded to the Chambers survey. At seven of those firms, between 52 per cent and 75 per cent of their trainees had been privately educated, with two reversing the trend – at Macfarlanes, 65 per cent had been to state schools and at Pinsent Masons 67 per cent.

If the figures are close to correct, even the ‘better’ profiles are alarmingly bad. The story’s also interesting because it hints that the US firms take a more egalitarian approach by recruiting from a wider range of Universities. Perhaps they have looked beyond the polish and found the spit?

Meanwhile Alex Novarese takes some time to remind the readership of Legal Business that law firms may have gone backwards on this:

You may have noticed [he tells them, that] a decent chunk of your veteran rainmakers aren’t that posh. There’s a reason for that.

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Stripping down to improper advice?

Bloomberg published an interesting story reporting that Sullivan & Cromwell LLP and Slaughter and May’s are of interest to U.S. prosecutors, “asking whether [the] two law firms gave Standard Chartered Plc improper advice as they steered the bank through a sanctions-violations investigation.”  The prosecutors (who may be the source for the story) have not, though, “accused the law firms of wrongdoing.”

I have written previously about this role of SCB’s in-house lawyers in relation to what was known as wire-stripping, but this story appears to relate to the subsequent investigation into SCB which led to substantial fines for breaching US sanctions law. The bank claimed to have acknowledged past criminal conduct but has been/is being re-investigated to, “determine whether the bank had withheld evidence of Iran sanctions violations.”  BNP Parbibas and some of its outside lawyers have also found themselves in hot water in similar circumstances.

What we are told prosecutors want to know now is whether the law firms improperly advised the London-based lender on the submission of certain information during the investigation that led to the 2012 settlement.

Another of SCB’s professional/independent advisers (not its lawyers) have previously been criticised for “softening” its reports to regulators, “by request of the bank or its counsel.” (emphasis added, but it is not clear from the story whether this request emanated from either in-house or outside counsel).  This kind of management of independent advisers is coming under increasing scrutiny and beginning to draw professional advisers closer towards scandal.  The story ends with this statement:

Rarely are lawyers and law firms taken to task for their opinion letters or advice. Even when a corporate decision is found to be at fault, the company may be able to minimize the penalty with the advice of counsel as a shield.

Rarely, but sometimes. It remains to be seen whether this US investigation goes anywhere.

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2016, Artificial Intelligence and the Year of Circumspection

A fascinating story in today’s FT by Richard Waters asking whether Watson can save IBM (it is pay-walled but well worth a read). IBM’s Watson is the much known and increasingly heavily marketed IBM artificial intelligence phenomena. It beat real humans in a complex general knowledge game (Jeopardy) and its apparent ability to help diagnose cancer has been much promoted, with this example being particularly famous:

A demonstration showed how quickly Watson is able to diagnose illnesses, and provided a real life case that took doctors and nurses six days to diagnose, and only ended with the correct diagnosis because a nurse had seen the disease before. Based on symptoms input, Watson was able to correctly diagnose in minutes. The demonstration took place at IBM Watson’s New York City, New York office on May 27, 2015.

The story reports on IBM’s struggles to apply Watson. The ‘we will go to the moon’ style statements of Watson’s potential have been tempered by a great deal more pragmatism.  They have broken down Watson into 40+ different products. These products are quite specific or even described as basic, although I’d describe them as more prosaic. Nevertheless IBM report these are selling quickly. They include things like sentiment and character analysis from things like tweets (God help us all, well  me anyway) and intelligent data analysis.

Watson’s famous victory in Jeopardy inflated expectations that great leaps could be made in terms of computers understanding complex, unpredictable information and answering complex questions. The promise has not yet been fulfilled.  The FT story suggests that the well trailed example of a Texas hospital trying to use Watson to help diagnose cancer has proved difficult, with the report suggesting this has not (yet) been successful – despite the demonstration above.  The hospital’s head of innovation says, “Turning a word game-playing computer into an expert on oncology overnight is as unlikely as it sounds” but retains her hope that it can get to something like the hoped for system.

The claim seems to be that Watson is being used to brand more pedestrian applications than the original conception of Watson as an  adaptive artificial intelligence. Another way of putting this is it is an early stage technology rather than an mature one: a (still rather impressive) ZX Spectrum to the MacBook of 2020.  Pragmatism sometimes yields results though. An Australian energy group is reported as using Watson’s natural language processing facilities to investigate its database of documents and mine intelligence from it: the example given is working out from 30 years of projects the best calculation is for pipeline pressure. According to IBM, the application still involve “high-end ” AI and quick processing of unstructured data .

A further problem that I was pleased to see recognised is that of trust. Where an artificial intelligence system makes human like predictions, it does not ordinarily offer human like explanations as to how it reaches its decisions. It is a problem likely to be important in law, where reasoning can be characterised as part of, not just preceding, the result.  IBM are reported to be trying to overcome this, so far without – according to Waters – significant success but at least they are trying.

For lawyers, the position may be tantalising. Some of Watson’s products – and the Australian example – promise real applications.  Yet law’s data may be peculiarly complex and nuanced.  Success in current AI seems to be most likely in areas of work with already high levels of predictability and structure.  That is the claim made in a very interesting paper by Remus and Levy which seeks to draw some boundaries around the near term possibilities of robot lawyers.  The paper is ably summarised here by Caroline Hill.  Remus and Levy sometimes under-estimate or miss current potential amongst existing providers of AI-like services, but they also make a valuable attempt to remind  us that there is a big gap between what can currently be done and what is claimed as possible. There needs to be a much stronger focus on the currently possible, what works and what does not work, why it does not work and why, and the normative implications of greater artificiality, automation and probabilisation of law. That debate has been masked by a phoney war between futurists and Luddites and is greatly hindered by an absence of real evidence.

A final lesson from the FT story is this: a key driver of the advance in artificial intelligence has been the availability of large amounts of data. Watson’s apparent ability to cope with unstructured data may encourage Law firms and legal departments with the ability and willingness to access repositories of such data to look for their equivalents of pipe pressures through the knowledge mining above.  What could be learned by intelligent search through case files, opinion letters, advice letters, deal bibles, contracts and the like?  This would require investment of time and money that the large accountancy firms may have more of a culture and appetite for than law firms and may lead to incremental rather than transformational change: more of Team GB/David Brailsford’s 1% increases in effectiveness than a Steve Job’s like seizing of the market, perhaps. Equally, the holy grail of better identifying what works requires tying lawyer input (advice given, documents drafted, litigation and trial strategies) to outcomes in terms of actual behaviour, value to the client and so on. One sometimes sees and hears of small advances in the making of such linkages but lawyers generally have relied on a folksy, experiential approach to linking the quality of what they do to the impact of their work on clients and the broader world. Better making that linkage is a key challenge for legal practitioners with pretensions for seizing high volume and high value impact.

So whilst the FT and the Remus and Levy pieces can be seen as pricking the bubble of law tech evangelism somewhat, I prefer to see in it a healthy maturity. More real work is being done to apply technology. More failures are coming faster. After the unknown comes the hype and after the hype comes the disappointments and progress of reality.  We can probably expect advances, but advances that are modest and worthwhile (though not as worthwhile as they are hyped to be), rather than transformational. And we will tend not to know much about them yet.  At least in the near term.

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Severe criticism of style or inadequate defence?

Ekaireb, R v [2015] EWCA Crim 1936 (16 December 2015) has got the press interested for its criticism of a criminal Silk and the suggestion that the Lord Chief Justice has referred him to the BSB for an inappropriate website.

The case for the appellant presented by Mr Orlando Pownall QC was that Mr Wolkind’s incompetence related to the final speech for the defence and fell into two categories:

i) a ‘severe criticism of style’ which itself amounted to incompetent representation in that he:

a) failed to present the defence in an appropriate and focused manner;

b) often resorted to patronising the jury, conducting personal attacks on counsel for the prosecution. He indulged in a number of inappropriate attempts at humour which were bound to alienate the jury;

ii) a failure to confront the matters advanced by the prosecution by displaying (as had been reflected in submissions of no case to answer and in his opening submissions), a reluctance fully to engage with the issues before the jury in stark contrast to the detailed way in which the prosecution had advanced the case.

It appears Mr Wolkind’s website became relevant because his client may have chosen to instruct him having read his website, “topcriminalqc”, but he also had some other forms of recommendation.

There were various allegations that Mr Wolkind did not prepare for trial properly, supported by the evidence of his (then) instructing solicitor and junior counsel. Interestingly, instructing solicitor and Wolkind’s junior had a discussion about firing Wolkind and the junior taking over (Michael Skelley), which Mr Skelley declined on the basis that he was not experienced enough (an interesting question is whether he had concerns about the conduct of the case sufficient to require other action by him).

There is criticism also of Mr Wolkind’s conduct of a submission of no case to answer.  The prosecution provided to the court a detailed 17 page submission of why there was a case to answer. Mr Wolkind provided a page and a half; a document described by the Court of Appeal as “lamentable”:

it was not the submission required to support the argument in a case where the evidence was entirely circumstantial. It was not just an error of judgment, but represented a serious failure on the part of Mr Wolkind. In fact, in determining this appeal nothing turns on this serious failure, since it is now rightly conceded that there was a case to answer, as the judge found.

The opening speech for the defence was described as, “entirely unfocussed” and containing, “unwarranted and unjustifiable specific criticism” of prosecution counsel but nevertheless, “it is not said to be incompetent.”  Then a finely balanced decision was made to call the appellant to give evidence which misfired although not – it seems – because of any failings by Mr Wolkind.  His junior indicated in evidence, however, “that during the cross examination Mr Wolkind, whilst half listening to the evidence, was sending e-mails on other cases.”

There was also criticism of Mr Wolkind’s absence from the judge’s summing up where it appears that points were raised which needed to be dealt with by the defence, but it is his closing speech which appears to have been most important in the context of the case (not least because Mr Wolkind had repeatedly told his junior it was a ‘closing speech case’). Indeed, it appears the trial judge may have been somewhat perplexed by the defence closing:

What we have here is a contrast between a prosecution who put their case on a very detailed analysis of the whole succession of facts. Mr Wolkind has not sought to answer those facts in detail.

The junior, Mr Skelley, was also, “not convinced Mr Wolkind was developing the points that needed to be made” and had drafted points for consideration in the closing speech which it appears were incorporated but not discussed.  The Court of Appeal – with its usual reluctance to overturn decisions based on inadequate representation – did not think the speech so bad that it rendered the conviction unsafe, partly because of the strength of the evidence against the appellant:

We have asked ourselves the question, therefore, whether the speech can be described having reached a level of incompetence that called into question the safety of the conviction or the fairness of the trial. We cannot so describe it. Although it will be for others to consider wider issues, it was a speech that covered the points and it had a structure, however ill-judged the themes and the structure might have been. We accept …that it was ill-judged, patronising and contained inappropriate attempts at humour. It also contained observations about prosecuting counsel which, as Mr Skelley told us, were completely unprofessional; no advocate should have put these observations into a speech…. However it did not reach a level of incompetence that called into question the fairness of the trial or safety of the conviction.

As we have reached that view, it would not be appropriate for us to make more general findings in relation to Mr Wolkind’s lack of preparation and conduct of the case. That must be a matter for the Bar Standards Board to which we direct the matter be referred.

It is thus on this basis that Mr Wolkind is apparently referred to the BSB alongside the observation that in relation to Mr Wolkind’s personal website:

We were surprised at its content and tone. However whether it is within the proper bounds of professional conduct for a member of the bar, particularly one who has had since 1999 the status of being one of Her Majesty’s Counsel, is a matter which we direct be referred to the Bar Standards Board for their consideration.

My own –  brief – perusal of the website suggest to me it is a work of tongue in cheek vanity and not-to-my-taste humour which is not a matter which will long detain the professional regulators.

Unless cringeworthy jokes bring the profession into disrepute or the content somehow (under gC57) is inaccurate or likely to mislead. Or, unless a general – and rather unsubtle and relentless – attempt present Mr Wolkind as the “UK’s Top Criminal Barrister” compared to the rest of the bar is to be regarded as, “making comparisons with other persons as these may often be regarded as misleading.”  I doubt it, myself: the comparisons are not specific enough to my mind to warrant sanction, although the appellant did claim to have been mislead by them.

Much more important is the issue of his performance in the court room. It is unfortunate – but perhaps unavoidable – that this is dealt with in the context of an appeal hearing, which both shapes and constrains how the Court of Appeal considers it scrutiny of conduct.

Interestingly, the Court of Appeal also directs (although I doubt it has the power to do so, I am confident the BSB will not overtly resist such direction on this occasion) that the BSB consider the general issue as to the:

terms upon which any barrister, particularly one of Her Majesty’s counsel, is free to engage on other work during the conduct of a case is a matter for the Bar Standards Board, subject to an overriding duty to the court in respect of the case before the court. We therefore direct that general issue be referred to the Bar Standards Board for their consideration.

I look forward to gC666: do not email during court hearings that you should be listening to.

There is also a ruling on criticism of opposing counsel requiring, in effect, that counsel distinguish clearly between criticising the prosecution’s case, and the prosecutors personally:

The conduct of a trial before a jury requires proper and professional conduct by all advocates in speeches to the jury. As any personal criticism of the conduct of an opposing advocate is a matter for the judge, it can form no proper part of an address to a jury. The regrettable departure from proper standards of advocacy by making personal criticisms of advocates of an opposing party in an address to the jury must therefore cease. No court will tolerate its continuance.

Substance before style, one might say.

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SQEal – some initial thoughts on Training for Tomorrow

The SRA has released its long awaited consultation on the future of the solicitors’ qualification, as part of its Training for Tomorrow work.  It prays in aid widely varying LPC pass rates, uncertainty about the comparability of law degree courses and grades, and very low training contract and GDL failure rates as partial justification for some radical change. Solicitors who never really had to be graduates will still not have to be graduates, but will likely have to demonstrate graduate level abilities.  The usual, probably optimistic, claims about flexible pathways opening up diversity are made although not played up as much as perhaps they might be.  It is a confident, interesting and ambitious document preparing the ground for the abolition of the QLD and its replacement by a market driven mixture of:

  • traditional law degrees (which may seek to train students for SRA knowledge requirements only minimally) – let’s call these the liberal law schools;
  • practice driven law degrees (which will seek to get students as far along the knowledge and skills requirements as they can) – let’s call these the almost-practice ready law schools; and,
  • a potentially significantly more complicated smorgasbord of postgraduate options to prepare students for knowledge and skill elements of the so-called ‘super exam’ (the SQE – in reality a suite of assessments – some taken on qualification and some taken a good deal earlier).

I would surmise that it will drive academia, and many connected with practice, a little crazy with anxiety.

The emphasis of the SRA’s approach is on the hope that through assessing outcomes (knowledge and skills are to be assessed separately) the need to control the processes of education might be done away with or significantly reduced.   Educators are free to innovate. Students are free to choose.  In particular, there is a hope that the LPC (and at least some of the cost associated with it) may wither on the vine of – as yet unmodeled – more flexible models of education and training.  For this to save costs, the assumption seems to be that degree courses, and work-based learning, can absorb more of the LPC’s role with a lighter or cheaper diet of postgraduate courses – especially for those emerging from the almost practice ready law schools.

Whilst the abolition (if it comes) of the QLD might have been hoped to remove something of a dead hand on the undergraduate law degree, we can expect a fresh incursion into the liberal law degree through the SRA’s promise to “drive academic quality”.  Centralised assessment of core knowledge allows the SRA to test the product of any legal educators staying in the practitioner focused legal education game.  Undergraduate programmes, in so far as they seek to teach their students to meet the knowledge requirements of the SRA, will have to teach to the SRA’s central assessments.  Teaching to the test, which did not work well when the Law Society Finals was in place, may work better if the SRA’s tests are an improvement on days of yore, but there has to be a significant likelihood that – beyond the initial frenzy of adaptation – it will also inhibit curriculum innovation at institutions seeking to teach to the SRA’s assessments settle into a process of providing courses designed to get decent enough pass rates.

The extent of this concern depends – my initial reading suggests – on two factors. One is the extent to which the SRA prescribes the knowledge elements that might get thrust into the undergraduate law degree. Para. 41 of the consultation suggests this would include: ethics and professional conduct (assessed pervasively in all knowledge based (and skills based?) elements); wills and probate; taxation; business law and practice; property law; torts; criminal law and evidence; civil litigation; contract law; trust and equitable wrongs; constitutional law; EU law; human rights; and, the English legal system. The SRA will also prescribe the detailed expectations around these topics. This may reduce or increase the size of what looks like a rather considerable footprint but a reasonable assumption appears to be that it will increase the size of the footprint, unless (say) the amount of contract or property or trusts that is necessarily taught is dramatically reduced.  In the nearly practice ready schools it will be interesting to see how their curricula (already dominated by the Foundation subjects) react.

At least there may be less marking, as objective computerised assessments are promised to assess knowledge. Law teachers will be designing simulated assessments that ape these rather than pouring over illegible scripts. Perhaps we can get Riverview to develop a machine learning tool to do this for us.*

The second element is the extent to which law schools seek to defend their (our) much proclaimed belief in the liberal law degree.  An interesting question is how many law schools will opt for the almost practice ready option and how many will stick to a liberal law school model (and will any become more liberal – cutting back on the foundations subjects traditionally taught – with some human resourcing difficulties)?  Is it possible to teach the above knowledge areas but do so in a liberal law degree kind of way?  Maybe, maybe not.  Would the liberal law schools be willing to say: we don’t teach to prepare you for these tests – you must study for them yourselves after or alongside your studies with us.

The SRA’s way of anticipating the claim that the wide specification of knowledge requirements infringes on academic freedom is to make the observation that law schools are free not to teach some or all of these areas.  They do not have to claim to prepare their students for the SRA knowledge assessments.  This is a fairly significant way of the SRA saying the liberal law degree is no concern of ours.  If you want to emphasise that your degree programme has benefits other than for practice then sell it to students who do not want to be practitioners.  It leaves hanging, of course, the benefit of the liberal law degree to neophyte lawyers. It also leaves hanging the possibility that liberal law schools will claim (and who knows whether this will be right or wrong) that a liberal law degree is still the best preparation for the SRA assessments – even though the students will be preparing and studying for them on their own dime. They will have plenty of good graduates who will do just fine under this model and we will have little basis for saying they would do better or worse under the almost ready to practice model unless those almost practice ready students start to do significantly better.

So the SRA are saying, in many respects not unreasonably, that it is up to them as regulators to define the competences they expect from admitted members and it is up to education providers to decide if they want to educate students to meet those competences or to allow them to do so after or alongside ‘traditional’ education.  What is couched as allowing universities to choose whether to provide a liberal law degree or not, is in fact as likely to be driven by the preferences of students and, importantly, employers.  We may well see the informal segmentation in employment opportunities for law students that we currently have lead to a more formal divide in processes and content of undergraduate legal education.  If we assume, in broad terms, that large commercial firms generally recruit from the Russel Group Universities, then we might also speculate that those large law firms may be willing to pay for the additional – post-degree training necessary – to protect the liberal law degree.  The calculation may not be that law firms love liberally educated law students.  There is a healthy case to be made that they are rather fond of liberally educated non-law students and it’s the students rather than the quality of the education that I think the firms really like.

The calculation may more likely be that the Russel Group law schools will stick to their liberal law school guns, decline – claiming that liberal law schools bring far deeper benefits than almost practice ready law schools – to adapt significantly to the new SRA knowledge subjects and rely on the fact that they attract (for how long?) the stronger cohort of students that the law firms prefer to recruit from.  The larger, wealthier firms that dominate the visible recruitment market for trainees may be willing to pay for an LPC-like course for those students and so protect the position of the Russel Group (or a top slice of the Russell Group).  The other law schools, in a stiffer competition for students and employability ratings, might compete to adapt more fully to the SRA criteria.  An interesting question is whether, should something like this happen, it increases diversity or solidifies barriers into large commercial practices.   The SRA is flirting with the idea of much more granular assessments of students which may allow law firms to seek out ‘top of the class’ SQE scores .  Research in the US has suggested that talent measured in this way is much more diverse than talent as law firms measure it when they recruit.  Yet, we also have a huge experiment, driven by market values and prejudices, in how different segments of the student and lawyer population will be trained.  Interesting times. Someone should research it. Someone with lots of money, patience and ingenuity.

There are lots of other issues to think about here.  But let me mention just two.  A proposal like this throws into the sharpest relief the failure of the regulators to cooperate.  What happens if the BSB comes out with radically different ideas about what it wants?  Does that pull law schools in impossibly different directions? Will it solidify a two tier system (should my tentative prediction that it emerges prove right).   Maybe the BSB will just have to adapt to its larger, quicker cousin.

The second is about the nature of the knowledge footprint, its assessment and its inflexibility as the SRA are currently thinking of it.  One oddity is that skills are to be assessed on or close to qualification whereas knowledge is to be assessed on a modular basis before (presumably a long way before) qualification.  We can certify a solicitors competence on the basis of out of date knowledge would be my quick assessment of that approach.  Practicality may require some assessments come earlier than other, so I recognise my quick assessment is a little harsh, but it may be more important that knowledge is assessed close to qualification rather than long before, at least knowledge directly related to the key areas of practice that the lawyer will be undertaking.

My second comment is that the list of required knowledge is interestingly wide and general in nature. The reason for this is partly to do with the need to certify competence to practice in reserved areas.  I would have thought it not beyond hope that a more flexible regime could be designed which required solicitors (and/or their regulated entities) ensure that they (or any solicitor working in the regulated entity) have passed the knowledge assessments relevant to their areas of practice. After all CPD is moving towards this kind of assessment and the SRA is keenly motivated by the desire to regulate proportionately.  If the thirteen areas of knowledge are in the list because solicitors may well need them if they were – at some point – to practice in all the reserved areas, we should recognise that this is not likely to happen and can be dealt with in other ways. And in any event, many of the knowledge areas are not about reserved activity in any meaningful sense at all.  I surmise, we could do with chopping a few – quite a few- fingers off the next dead hand.

 

* I am not being entirely facetious.

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Big Law: Don’t you believe your own hype?

There are some rather eye-opening figures on a poll conducted by AdamSmithEsq about the perceived ability of US firms to ‘cross serve’ current clients.  Given that one of the key justifications for having larger law firms is that, through economies of scope / deeper specialisation, they can better meet the needs of the clients.  It’s quite an important issue to be grappling with: if economies of scope do not exist a big reason for large law firms disappears.

The thing that really caught my attention was the difference between large firms (>500) and smaller firms (<100).  Of those surveyed,only 73% of lawyers in large firms agreed they had the capacity to cross service clients – 93% agreed in smaller firms. 73% of lawyers in large firms agree that management supports collaborative efforts.whereas the figure is (again) 93%) in smaller firms

One potential explanation of these findings is that those in large law firms were less likely to feel they understood how the capabilities of other lawyers in their firms intersected the needs of their clients. Only 41% of lawyers agreed their was good coordination between practice areas within their firm (the figures were even worse for coordination between offices).

The figures on trust are worth quoting:

 

Perhaps most damning is what appears to be a significant lack of trust within law firms; you’ll note that none of these are even passing grades.

% Strong agree/agree High degree of trust between lawyers at my firm I’m confident others will serve clients as well as I do
All lawyers 41 49
Management 67 68
Business professionals 48 30
>500 lawyer firms 42 42
<100 lawyer firms 47 46

I’m hoping (hoping) that this is more of an indication of a lack of familiarity with others at the firm; if there truly is a lack of trust and disbelief that others will serve clients as well as they will – then cross-serving/collaboration exhortations and programs are pretty much toast and we should just go home.

Here we see less no difference between lawyers in different sized firms but the (actually quite common finding) that management and the workers have considerably different views of their own firms.  We do however see that only 21% of those working in big firms agree that incentives to pursue cross-serving (selling?) are “commensurate with the effort required”. In smaller firms the figure is 53%.

The findings might be explained by another post I stumbled across recently about the problems of scale.  This quote gives us a flavour, but it is worth reading for the elephant and mouse analogue.

The reason communism or utopianism can work at small scale is because of the tight knit nature of a small group. Think of your family dinner table: Do you need to trade chits to decide who gets to eat how much, or do you need some grand overseer to dole out the potatoes? No. You all simply take what you need for the meal, and make sure everyone has enough. Think of the shameful admonitions if you over-eat and leave another family member hungry.

The problem is when concepts don’t scale.  People do take too much. Trades within firms become metrics and metrics promote selfishness and mistrust.  The idea, in essence – transferred to here – is that, economies of scope do not scale in knowledge intensive, relational businesses or perhaps as AdamSmithEsq suggest do not scale without better management initiatives to make them scale.  Big law may be built on reputations, the hype if you like, but their size corrodes the trust and knowledge that it is necessary to share for the hype to be believed – internally at least.  Clients will be wondering, if they don’t trust themselves, why should we trust them?

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