Corporate Counsel magazine recently interviewed Robert Weber, General Counsel at IBM, on the question of whether non-lawyers should be allowed an ownership stake in law firms. At present, in many countries, they are not – but this principle has been eroded in the UK and Australia and is now under review in the US.
Mr. Weber opposes change to the current rules, which also include the legal profession being self-regulating. He believes that allowing non-lawyers to take a stake in a law firm is just the thin end of the wedge and that this will be to the detriment of client interests.
The argument against change is nicely summarized in Wikipedia: “The rule was created in order to prevent conflicts of interest. In the adversarial system of justice, a lawyer has a duty to be a zealous and loyal advocate on behalf of the client, and also has a duty to not bill the client excessively. Also, as an officer of the court, a lawyer has a duty to be honest and to not file frivolous cases or raise frivolous defenses. A lawyer working as a shareholder-employee of a publicly traded law firm would be strongly tempted to evaluate decisions in terms of their effect on the stock price and the shareholders, which would directly conflict with the lawyer’s duties to the client and to the courts.”
Mr Weber adds to this with the observation that “The very nature of being an attorney is that you’re an agent to someone” and cites this as a reason why lawyers act exclusively in their client’s interests.
This discussion raises some important issues. For example, to what extent can a professional body be self-regulating and still act in the wider public interest? To what extent does the legal profession hide behind its proclaimed role of ‘agent’ in order to avoid accountability for its actions? And even if law firms are somehow ‘special’, should similar principles continue to apply to in-house counsel?
There is no question that many lawyers are people of great principle and high ethical standards. Yet there is also no doubt that many are driven by financial reward (the legal profession is among the world’s highest paid). It is hard to swallow this concept of ‘agency’ when lawyers today are so active in promoting litigation – patent trawling, class-action lawsuits and active encouragement for personal injury claims being obvious examples. And I observe many in-house legal teams seeking either to expand their role, or to crush others who might be seen as a form of competition (contract and commercial management groups being an obvious target).
Skepticism about the legal profession is perhaps partly due to the way it dominates the field of politics. For example, according to the Wall Street Journal, 60% of US Senators are lawyers. The School of Human Rights Research in The Netherlands has explored this issue and finds a similar dominance in many other countries. It comments that lawyers and politicians are among the “least trusted groups of people, as the large number of jokes at their expense will attest, and this may be at the root of some of the public cynicism towards politics in North America and elsewhere. Although ethical conduct is considered central to both professions, they both seem to exhibit a higher than normal rate of professional misconduct and breach of trust, in the public perception if not in reality. For many lawyers and politicians, the point is to win at all costs – in trying to win on behalf of their client, or in trying to get elected, they often seem to push aside their convictions or sense of right and wrong in favour of expediency. Much of the vitriol directed at lawyers and politicians is directed at their rhetorical flair – they are good at selling things and telling people what they want to hear.”
A recent survey published by the Law Society Journal in the UK showed that only 47% of people trust lawyers to tell the truth. I believe this is largely due to the perception that lawyers are more driven by personal rewards than they are by professional principles. The American History blog sums it up well in reminding us of one of the fundamental rules of the Law Society: “When acting as an advocate, a lawyer shall not knowingly assist or permit the client to do anything that the lawyer considers to be dishonest or dishonourable.”
Confidence in the rule of law depends on a system that is transparent and fair. A problem with any profession having a monopoly in its field is that it has a strong incentive to maximize complexity and to increase client dependency. This also extends into the question of how broad the role of lawyers should be. It seems to me that if they want ‘special treatment’ because of the importance of their legal role, they must also be clear about its boundaries and remain removed from broader questions of business judgment and management.
The WordPress.com stats helper monkeys prepared a 2011 annual report for this blog.
Here’s an excerpt:
The concert hall at the Syndey Opera House holds 2,700 people. This blog was viewed about 44,000 times in 2011. If it were a concert at Sydney Opera House, it would take about 16 sold-out performances for that many people to see it.
The New York Times reports that US corporations are poised to cash in on Eurozone troubles, acquiring businesses and assets at knock-down prices. The challenge for many European companies arises from a lack of liquidity, as banks are forced to raise capital and cut lending. This has already resulted in a growing number of acquisitions by Chinese buyers.
How long does it take to register a company? The answer – and the process and costs involved – varies dramatically depending on where you are. In New Zeland, for example, it is typically one day and costs under $200 (US). In Congo, on the other hand, you would be facing an average wait of 65 days, 10 discreet process steps and a cost of more than 5 times average income.
The World Bank Report on ‘Doing Business in 2012’ offers invaluable insights into the relative complexity of operating in different countries around the world. It makes interesting reading in its own right; but it should also cause each of us to reflect on the rules under which we operate and what impact they may be having on our competitiveness.
In Congo – or many of the other relatively bureaucratic countries highlighted in the report – I am sure people complain about ‘red tape’ and the difficulty of getting things done. But in the end, tehy accept the rules, or find ways to work around them. And of course, the same happens in business. We become accustomed to the rules and the processes, we assume they are normal, and we make little effort to either understand their impact or to change them.
Even when we observe high levels of non-compliance, or realise that staff in other groups try to avoid us, we don’t necessarily react by asking ‘How can we do this better or differently?’ Our natural reaction tends to be ‘How can we enforce compliance?’
So as we enter a new year, and a year in which increased competitiveness and efficiency will be crucial to survival for many. it is time to think about the activities we perform and whether they can be changed, accelerated or eliminated. Where do we spend time? What do we wish was different? How would our internal clients like things to be done? How is our competition managing similar activities?
IACCM has recently launched a program which encourages and recognizes ‘agents of change’. It has been developed in conjunction with the Aalto Business School in Finland and provides a forum to share ideas and to promote new thinking. It can be accessed at http://www.iaccm.com/act-differently/
Projects are made complex by the underlying complexity of the systems that are needed to support them.
There are three major elements that must be brought together to achieve project success:
– people
– process and rules
– legal and commercial frameworks
One of the fundamental challenges facing any major project is to ensure that each of these elements is adequately understood and that they are brought into alignment (i.e. that differences or contradictions are reconciled). Because this is relatively complex to achieve, there is a need for a disciplined methodology. And that is where the contracting process comes into play. A good contracting process will ensure that there is consensus over scope and goals, that there is an appropriate procedure for on-going governance and management. This includes forums for discussion and negotiation, reports that offer visibility and insight, analysis that places the spotlight on risk and copes with reducing its probability and consequence.
Conflicts between people, their interests, rules or commercial practices lie at the root of most under-performing or failed projects. Failure to understand and address them adds to the complexity and becomes potentially overwhelming. No matter how talented a project manager may be, he / she needs effective tools and a coherent framework within which to work. That is what a good contracting process will deliver.
Bad contracts are those that are dominated by specific interests, where power or measurement systems have been allowed to overwhelm wisdom and judgment. This is evident when a contract is imposed by one party on the other, or when a particular functional group such as Finance or Legal or Sales is allowed to dictate the terms. Another source of failure often comes from senior management or project owners, where they prevent an open contracting process – perhaps because their past experience of contracts is negative.
As businesses face a growing range of complex projects and trading relationships, the importance of developing a more structured and reliable approach to contracting and commercial process is growing. There is increasing management realization that this is an area for focus. To build trust, profitability and competitive edge, organizations must become consistently better at aligning needs with capabilities, with defining and managing contract scope, with establishing sustainable and long-term relationships.
To achieve these goals, contracts and the process by which they are created must become simpler. They must be quicker and more efficient to form; they must be beter at addressing real and tangible risks; they must be more focused on delivering success; they must support and underpin constructive relationships.
In 2012, IACCM will offer in-depth insights to these challenges and a road-map for their resolution. Starting with the IACCM EMEA conference in April 2012, executives and senior practitioners will be invited to come together and explore how simpler contracting can help them to master complex project delivery. The prize for success is enormous. IACCM research suggests that the average business could be adding almost 10% to its bottom line.
IACCM today announced the results of the 2011 Board elections. The successful candidates (with company, country of residence and percentage of votes received) were:
- Tim McCarthy (Rockwell Automation: USA) 16.5%
- Coen Wilms (Shell International: Netherlands) 13.7%
- KB Iyappa (GMR Corporation: India) 12.1%
- Dan Mahlebashian (General Motors Corporation: USA) 11.6%
- Alan Schenk (BP: UK) 11.6%
These new Board Members will join 9 current incumbents, from Accenture, Agilent Technologies, BAE Systems, Chevron, Cisco, CSC, HP, IBM Corporation, Marina Bay Sands and Raytheon. They continue IACCM’s unique position of representing both buy-side and sell-side contracting and commercial capability, on a global level.
Commenting on the result, IACCM President Tim Cummins said: “Once again, IACCM members were faced with a tough decision on who to elect. We had 10 excellent candidates. I am delighted by these additions and (in two cases) re-elections to our Board. The wide geographic mix is especially gratifying – and of course represents one of IACCM’s many distinctive features.”
Tim went on to observe: “Current economic conditions are having many impacts on our members. In addition to the inevitable pressure on budgets and headcount, it is also clear that contracting and commercial capability have become key to competitive edge and corporate profitability. This has resulted in many opportunities for the Association, with the volume of requests for advisory services showing a particular increase. Our members seek leadership in ideas and example; they need help in identifying value propositions and assistance with implementing change. Our work in defining roles, identifying innovation in terms and exploring ‘the future of contracting’ are among the high value services that we are providing”.
IACCM Board Members take a key role in demonstrating leadership and providing IACCM members with the hope and inspiration they need in these tough times. With membership growth continuing at an annual rate of more than 25%, it is clear that the Association is doing many of the right things; but the demands in these difficult times will not reduce. These additions to the Board will assist greatly in meeting our challenging goals and objectives.
(Note: there was a dead-heat for fourth place. The incumbent Board Members exercised their authority to appoint both candidates.)
An IACCM member commented recently on the ‘top ten negotiated terms’, saying that while the areas of liabilities, indemnities etc feature large on the agenda, he is finding that negotiation of change clauses is proving increasingly contentious and time-consuming, especially in technology contracts.
My observations with regard to that comment were as follows:
Our research shows that issues related to change clauses are the #2 cause of claims and disputes (beaten only by disagreements over scope). Hence your focus is addressing a critical area.
We find that often the contention is driven by a couple of factors:
1) There may be genuine uncertainty about future needs or capabilities, for example because of new technologies that may become available or difficulty in predicting future business requirements.
2) Change is a regular battleground over price, with the customer anxious to remain within original budgets and the supplier wishing to ensure recovery of costs, or perhaps raise margin.
Several factors can make this situation especially contentious. One, of course, is the underlying risk associated with commitments in an uncertain environment. In this case, it may be wise to think about the contract structure and to enable more fundamental renegotiation at particular milestones. This also implies that the extent of customer commitment is reduced and that there may even be a joint work team to ensure close alignment between requirement and capability.
A second cause could be a lack of trust between the parties. For example, if the supplier feels disadvantaged in negotiation due to a lack of ‘fairness’ in risk allocation, or perhaps the price negotiation has been especially severe, then they will naturally be nervous about their ability to charge for subsequent changes. It may even be that they have priced low with the specific intent of then recovering margin during the change process. (I came across this blog that makes a very similar point.)
On the second point, it should be possible to discover whether this is an issue of trust or of policy. For example, is the supplier significantly cheaper than competition? Do they have a market reputation for being difficult to do business with, especially in the post-award phase?
The situation you describe is not uncommon and to address it, we may need to think carefully about our own behaviours and the extent to which we are building cooperative, rather than adversarial, relationships. We may need to change the conversation and also to see the link between this clause and the way that other elements of the contract have been negotiated. One approach might even be to raise the points I have outlined above and make them part of the discussion.
What have your experiences been on this topic? How do you address the challenge of change in your contracts and negotiations|?
When I talk with contracts and commercial teams about the potential to add value, some are enthused and others give me blank looks. It can be hard to imagine quite how to deliver added value through improved contracting. We have mostly been taught to focus on individual deals and to avoid bad things happening. So it can be tricky to envisage how a more portfolio driven view might actually make GOOD things happen.
I thought I would share this recent example that came from a long-time IACCM corporate member in the United States.
Having read IACCM’s annual study on The Most Negotiated Terms, they wanted to improve contracting effectiveness, so started exploring where time is spent and what impact that had on outcomes. What they discovered was a direct correlation between the timing and duration of the contracts organization in requirement definition and the subsequent amount of time spent on negotiation. They then tracked through and found similar correlation to the likelihood / frequency of claims and disputes.
Essentially, in those deals where they were involved earlier and spent time ensuring clarity of scope and requirements, the negotiation time fell significantly and the ‘adversarial’ behavior over risk allocation reduced (though total cycle time from inception of bid to contract signature remained much the same). The big value difference came in subsequent customer relationships – those where the requirements had been thoroughly defined had 40% lower incidence of claims or disputes, which of course meant higher levels of customer satisfaction, better margins, increased renewal rates etc.
This is one of a growing number of examples where real value can come from contract process analytics. The challenge for many groups is that they have no access to data because they don’t measure the right things. But that is a different story and has been covered by a number of previous blogs that looked at metrics ….
Commitment Matters 