Monday, 9 August 2010

Alternative Business Structures Have Arrived...and Gone Already!

(Thanks to Jim Guckin)

Optima Legal set itself up to offer property and litigation services to the UK lending market. According to The Lawyer it went one step further than most other law firms and this raised trouble with the Solicitors Regulation Authority (SRA).

Optima borrowed heavily (£35m) from Capita in 2006, the outsourcing company, to fund a buyout of a volume arm of Dickinson Dees. Optima then outsourced its back office services to Capita which also took share options for when alternative business structures would be allowed (October 2011).

The SRA didn't like this and following a three-year investigation--starting in 2007: why did it take so long?--it reprimanded Optima for jumping the regulatory gun. Everything had to be put back as it was before the deal, including the 234 back office staff currently employed by Capita. The share options had to be cancelled too. Apparently Optima had taken counel's advice on the move.

Come October 2011 it can all be changed around again. What a roundabout!

Do read the comments to the story as they represent the polar opposites of views. Some, eg. Peter Rouse, ask, "Did services suffer? No, then what's the problem?" Others accuse Optima of hubris. The comment by Tony Guise raises the pertinent question of whether in fact borrowing money was wrong and that the SRA has overlooked the commercial realities of legal life.

I bet in the run-up to ABS this is going to get worse. Poor SRA...
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Friday, 6 August 2010

Legal Outsourcing to India Attracts Lawyers from West

(Lotus Temple in Delhi)
The New York Times has published an insightful article on legal process outsourcing (LPO) to India (which my colleague, Oliver Phillips, has extracted below). Every member of the legal profession and those interested in it should read it. This is a real future, not the only one, but definitely part of it.

The gist of the article is that LPO has become an unstoppable force and has now reached a level of maturity that Indian LPO firms are hiring western lawyers.

Here is Leah Cooper's experience:
Leah Cooper left her job as managing lawyer for the giant mining company Rio Tinto in February to become director of legal outsourcing for CPA Global, a contract legal services company with offices in Europe, the United States and India. Before hiring Ms. Cooper, CPA Global added lawyers from Bank of America and Alliance and Leicester, a British bank. The company has more than 1,500 lawyers now, and Ms. Cooper said she planned to hire hundreds in India in the next 12 months.
Admittedly, Cooper is one of the early acolytes of this movement and therefore proselytizes forcefully. But, as I mentioned in a post on the ILEC IV Stanford conference, David Wilkins at Harvard has been researching this area and he agrees that it is a fundamental change in the lawyering process.

What is changing is that instead of being seen as an inferior form of life, LPO companies are now attractive to lawyers. This is comparable to two earlier movements.

For a long time inhouse lawyers were considered second class citizens of the legal profession. Now look at their power, authority and clout compared to private practice lawyers. No one considers them inferior now.

Software development is another comparator. For a long time companies in Silicon Valley took Indian programmers because they were good and cheap. Then Indian software companies started growing and moving into Silicon Valley. Indians were being hired in San Jose and Bangalore as well as Americans.

I imagine similar things will happen to LPO companies, especially when the big consulting firms move in as they will.

If you want to judge the reaction to this movement, read some of the 219 comments attached to the article: I'm afraid they are rather forlorn and reactionary.

All of this is augmented by an article in the Economist on law and globalization which looks at restrictive practices by countries (eg. India, Canada, China) wanting to limit international lawyers.

Finally, this all fits in with the moves towards global liberalization of services, including legal services that I commented on below. Lawyers and the legal profession must start thinking creatively how they want to meet this new world. 
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Thursday, 5 August 2010

California Judge Reverses Prop 8 Decision Banning Gay Marriage

For a full transcript of the decision, see here.

But in the meantime, in order to see how clearly the judge repudiates the conservative arguments, see the following.....
...Tidbits (courtesy of Talking Points Memo):

A federal judge in California has ruled that Prop 8 -- the voter initiative that banned gay marriage -- is unconstitutional.

Supporters of Prop 8 (that is, opponents of gay marriage) have already promised to file an appeal.

From Judge Vaughn Walker's decision:

Proposition 8 fails to advance any rational basis in singling out
gay men and lesbians for denial of a marriage license. Indeed, the
evidence shows Proposition 8 does nothing more than enshrine in the
California Constitution the notion that opposite-sex couples are
superior to same-sex couples. Because California has no interest in
discriminating against gay men and lesbians, and because Proposition
8 prevents California from fulfilling its constitutional obligation
to provide marriages on an equal basis, the court concludes that
Proposition 8 is unconstitutional.
Prop 8, approved in 2008, created an amendment to the state constitution that defines marriage as only between a man and a woman.

More from Walker's decision:

In the absence of a rational basis, what remains of proponents' case
is an inference, amply supported by evidence in the record, that
Proposition 8 was premised on the belief that same-sex couples
simply are not as good as opposite-sex couples. FF 78-80. Whether
that belief is based on moral disapproval of homosexuality, animus
towards gays and lesbians or simply a belief that a relationship
between a man and a woman is inherently better than a relationship
between two men or two women, this belief is not a proper basis on
which to legislate.
And:

The arguments surrounding Proposition 8 raise a question similar to
that addressed in Lawrence, when the Court asked whether a majority
of citizens could use the power of the state to enforce "profound
and deep convictions accepted as ethical and moral principles"
through the criminal code. ... The question here is whether
California voters can enforce those same principles through
regulation of marriage licenses. They cannot. California's
obligation is to treat its citizens equally, not to "mandate [its]
own moral code."
"Moral disapproval alone is an improper basis on which to deny rights to gay men and lesbians," he wrote.

In his findings of fact, Walker pointed out that California "has never required that individuals entering a marriage be willing or able to procreate."

He also notes that slaves were unable to marry.

"The states have always required the parties to give their free consent to a marriage. Because slaves were considered property of others at the time, they lacked the legal capacity to consent and were thus unable to marry. After emancipation, former slaves viewed their ability to marry as one of the most important new rights they had gained," he wrote.

Walker also noted that past marriage inequalities have included the prohibition of interracial marriage and coverture, in which a woman's identity is subsumed by her husband's.
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Outsourcing to India Draws Western Lawyers - NY Times 4 Aug

Outsourcing to India Draws Western Lawyers





NOIDA, India — As an assistant attorney general for New York State, Christopher Wheeler used to spend most of his time arguing in courtrooms in New York City.
Today, he works in a sprawling, unfinished planned suburb of New Delhi, where office buildings are sprouting from empty lots and dirt roads are fringed with fresh juice stalls and construction rubble. At Pangea3, a legal outsourcing firm, Mr. Wheeler manages a team of 110 Indian lawyers who do the grunt work traditionally assigned to young lawyers in the United States — at a fraction of the cost.
India’s legal outsourcing industry has grown in recent years from an experimental endeavor to a small but mainstream part of the global business of law. Cash-conscious Wall Street banks, mining giants, insurance firms and industrial conglomerates are hiring lawyers in India for document review, due diligence, contract management and more.
Now, to win new clients and take on more sophisticated work, legal outsourcing firms in India are actively recruiting experienced lawyers from the West. And American and British lawyers — who might once have turned up their noses at the idea of moving to India, or harbored an outright hostility to outsourcing legal work in principle — are re-evaluating the sector.
The number of legal outsourcing companies in India has mushroomed to more than 140 at the end of 2009, from 40 in 2005, according to Valuenotes, a consulting firm in Pune, India. Revenue at India’s legal outsourcing firms is expected to grow to $440 million this year, up 38 percent from 2008, and should surpass $1 billion by 2014, Valuenotes estimates.
“This is not a blip, this is a big historical movement,” said David B. Wilkins, director of Harvard Law School’s program on the legal profession. “There is an increasing pressure by clients to reduce costs and increase efficiency,” he added, and with companies already familiar with outsourcing tasks like information technology work to India, legal services is a natural next step.
So far, the number of Western lawyers moving to outsourcing companies could be called more of a trickle than a flood. But that may change, as more business flows out of traditional law firms and into India. Compensation for top managers at legal outsourcing firms is competitive with salaries at midsize law firms outside of major metropolitan areas of the United States, executives in the industry say. Living costs are much lower in India, and often, there is the added allure of stock in the outsourcing company.
Right now, Pangea3 is “getting more résumés from United States lawyers than we know what to do with,” said Greg McPolin, managing director of the company’s litigation services group, who divides his time between India and New York.
Outsourcing remains a highly contentious issue in the West, particularly as law firms have been trimming their staffs and curtailing hiring plans. But Western lawyers who have joined outsourcing firms are unapologetic about the shift to India.
Leah Cooper left her job as managing lawyer for the giant mining company Rio Tinto in February to become director of legal outsourcing for CPA Global, a contract legal services company with offices in Europe, the United States and India. Before hiring Ms. Cooper, CPA Global added lawyers from Bank of America and Alliance & Leicester, a British bank. The company has more than 1,500 lawyers now, and Ms. Cooper said she planned to hire hundreds in India in the next 12 months.
At Rio Tinto, Ms. Cooper said, she became a champion of the idea of moving work like document review to a legal outsourcing company “because it works really well.”
“It really is the future of legal services,” said Ms. Cooper, an American based in London who travels regularly to India and has spoken widely in promoting outsourcing. Still, she acknowledges hostility toward the practice. “When I was doing public speaking, people used to joke that I had better check under my car” for something planted by a junior associate angered by her views, she said.
Many legal outsourcing firms have offices around the world to interact with clients, but keep the majority of their employees in India; some also have a stable of lawyers in the Philippines. Thanks to India’s low wages and costs and a big pool of young, English-speaking lawyers, outsourcing firms charge from one-tenth to one-third what a Western law firm bills an hour.
Employees at legal outsourcing companies in India are not allowed by Indian law to give legal advice to clients in the West, no matter their qualifications. Instead, legal outsourcing companies perform a lot of the functions that a junior lawyer might do in a American law firm.
Even global law firms like Clifford Chance, which is based in London, are embracing the concept.
“I think the toothpaste is out of the tube,” said Mark Ford, director of the firm’s Knowledge Center, an office south of New Delhi with 30 Indian law school graduates who serve Clifford Chance’s global offices. Mr. Ford lived in India for six months to set up the center, and now manages it from London.
“We as an industry have shown that a lot of basic legal support work can successfully be done offshore very cost-effectively with no quality problems,” Mr. Ford said. “Why on earth would clients accept things going back?”
Many corporations agree that outsourcing legal work, in some form or another, is here to stay.
“We will continue to go to big firms for the lawyers they have who are experts in subject matter, world-class thought leaders and the best litigators and regulatory lawyers around the world — and we will pay a lot of money for those lawyers,” said Janine Dascenzo, associate general counsel at General Electric.
What G.E. does not need, though, is the “army of associates around them,” Ms. Dascenzo said. “You don’t need a $500-an-hour associate to do things like document review and basic due diligence,” she said.
Western lawyers making the leap to legal outsourcing companies come for a variety of reasons, but nearly universally, they say they stay for the opportunities to build a business and manage people.
“In many respects it is more rewarding than jobs I had in the United States,” said Mr. Wheeler, who moved to India when his Indian-born wife took a job here in 2006.
“If you’re talking about 15 employees in a windowless basement office, I’m not interested in making that my life’s calling,” he recalled thinking when he started talking to Pangea3. “But building a 500-person office, now that is a real challenge.”
Shelly Dalrymple left her job as a partner at a firm in Tulsa, Okla., in 2007 and is now based in India as the senior vice president of global litigation services at UnitedLex, a legal outsourcing company with offices in the United States, Britain, Israel and India.
When she first joined the industry, she said, growth was being driven by corporations that were pushing law firms to outsource to save money. Now, Western law firms themselves are starting to embrace the industry, she said. “We are seeing law firms who are putting a lot of thought into their future coming to us with interesting and creative ideas,” she said.
Partners in the West are asking legal outsourcing companies in India to create dedicated teams of lawyers for their firms, for example. Those teams could expand and contract depending on how much business the Western firm has. “That means a law firm with 500 members in Chicago can compete with a 2,000-member firm in New York,” Ms. Dalrymple said.
Moving to a legal outsourcing firm, especially in India, is not for everyone. About 5 percent of Western transplants cannot handle it and move back home, managers estimate.
Some find it hard to adapt to India. Other times, the job itself does not suit them — after spending years working nearly independently as a litigator, for example, it can be hard to transition to managing and inspiring a team of young foreign lawyers.
Even lawyers who stay are sometimes wistful about their previous careers. “Of course I miss litigation,” Mr. Wheeler said. But, he added, “watching people learn some of the same skills I did is gratifying.”


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Soaring e-book sales speak volumes

(thanks to Robin Good)

PETER BRIEGER | HONG KONG - Aug 01 2010 06:58

After years of lurking in the literary wilderness, the e-book market has exploded with online retailer Amazon.com's digital volumes recently overtaking sales of their hardcover counterparts.


The increase in sales has come as Amazon slashes the price on its Kindle device amid heavy competition from Apple's multipurpose iPad and e-readers from Sony and bookstore giant Barnes & Noble.

Underscoring the growth, Hong Kong's massive book fair, an annual event attended by almost one million people, wrapped up last week with visitors exposed to a brand-new section: digital reading.

Beijing-based Hanvon Technology unveiled a black-and-white tablet reader that comes with 5 000 Chinese and English book titles pre-installed for about $440.

Readers can download thousands more titles for as little as HK$20 each on the device, which also lets users enlarge the typeface, take notes and look up words in the dictionary.

"One [print] book might cost you HK$100 or more, and then you have to find a place to store it," said Hanvon employee Bo Bo Wong. "With this, you can have thousands and thousands of books in one place," she said.

Mainland companies such as Hanvon, Acuce and Tianjin are taking on the likes of Apple and Amazon by pushing content tailor-made for the vast and rapidly growing Chinese digital market.

The total value of digital publications across all platforms overtook that of traditional print publications in mainland China for the first time last year, the General Administration of Press and Publication said last week.

According to the South China Morning Post, a recent survey by the Chinese Institute of Publishing Science found that nearly a quarter of the 20 000-plus people it surveyed now do most of their reading digitally.

The newspaper quoted Chen Fuming, a manager of a major bookstore chain in Guangzhou across the border from Hong Kong, as saying Chinese book shops were in crisis.

"Even I myself now prefer to read fiction with my mobile phone," Chen said. "It's cheap and convenient."

New Zealand's Kiwa International, another company showing off its wares at the Hong Kong book fair, is using Apple's iPad as a platform for its child-targeted software.

The Auckland firm's technology lets children interact with books downloaded on to the iPad by colouring in story characters and swiping words that are then repeated aloud -- in nine languages.

"They can totally personalise the book," said Kiwa's creative director Derek Judge. "And we provide a service to [traditional] publishers who want to enter into the digital arena."

Amazon temporarily sold out of its $189 Kindle e-reader last week and on Thursday unveiled a new 1$39 model that connects online by WiFi instead of via 3G networks.

"Amazon.com customers now purchase more Kindle books than hardcover books -- astonishing when you consider that we've been selling hardcover books for 15 years, and Kindle books for 33 months," Amazon boss Jeff Bezos said last month.

US bookstore chain Borders has also launched an electronic book store to tap into the market, which has seen late Swedish crime writer Stieg Larsson become the first novelist to sell more than one million e-books on Amazon.com. - AFP 


(thanks to www.mg.co.za/article/2010-08-01-soaring-ebook-sales-speak-volumes

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Wednesday, 4 August 2010

Europe Wants to Liberalize Services and This Includes Lawyers

(thanks to praized)

In my paper "From Ethics to Regulation" I have shown how at the global level legal services and lawyers are being subsumed under the general category of services. In GATS the idea is to remove barriers to trade in services. To the dismay of lawyers, there is no special category for the legal profession. What's worse is that they are likely to be classed with accountants.

The European Union is now pushing this agenda. In 2006 the Services Directive was adopted with transposition into national law by the end of 2009. The European Commission is requesting submissions for an evaluation of the mutual evaluation process. In other words how is the directive being applied particularly in relation to the requirements "either on the establishment of service providers or on the cross border provision of their services".

Once again, lawyers are only referred to obliquely as legal advisers among others.

The European Commission argues in the consultation document that
The Services Directive has the potential to foster growth and job creation in the largest, most dynamic and innovative pillar of the EU economy, the services sector. This becomes even more vital in the context of the current economic crisis. According to conservative estimates, the potential economic benefits of the Services Directive could range between 60-140 billion euro, representing a growth potential of 0.6-1.5% of GDP. But these gains can only be reaped if the Directive is implemented fully in all EU countries.
The kinds of things being consulted on include: any specific legal form for provision of services (eg. partnership or sole practitioner); bans on establishments in more than one country (eg. European law firms); minimum or fixed prices for services; any limitations on the provision of other services (eg. MDPs).

The UK response is quite liberal. The only limits on legal services are in claims management which must be authorized, and for insolvency practitioners who have reserved activities.

Contrast this with Greece, for example, to see the other side. Minimum tariffs are applicable for lawyers; lawyers can't have more than one establishment in Greece; and no MDPs for lawyers.

Italy is a halfway house with restrictions on form for lawyers (solo practice or partnerships owned by lawyers); minimum tariffs and fixed prices have been removed, but maximum tariffs apply; and MDPs have restrictions.


There's a long way to go yet. Not all member states have yet implemented the directive, while, some like Greece appear to have taken an overly restrictive view. Italy clearly just hasn't got round to doing it properly.


The consultation is open to consumers, businesses and other interested parties. The closing date is 13 September 2010. Documents can be downloaded from the European Commission consultations page.

(H/T to Richard Parnham)
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Monday, 2 August 2010

The Future of Lawyers Redux


Back in May I reported on some research done by legal recruiters, Badenoch & Clark, on the Future of Law. There was a big divergence of views between partners and associates in law firms.

They have produced some more findings that continue the theme.
  • 24% of associates plan to leave the legal profession in the next year. Eight per cent want a career break and 16% are quitting the profession.
  • 34% gave difficulty of work-life balance as main reason for leaving.
  • 10% cited personality and management problems as another reason for departing, emphasizing gaps between management and employee communication.
  • And here's an interesting quote from the research:
    An absence of communication over the future of the profession, such as change from lock step to merit based pay, has been a catalyst for relationship issues between management and associates to surface. The survey found that 47% of partners had discussed plans to change their firms’ pay structure over the next five years, yet only 23% of associates believed such discussions were taking place.

If we accept that associates are meant to be potential future members of the law firm, ie. partners, this research shows either that's a myth or partners haven't got a clue about how the organization of a law firm operates. I suppose there's nothing to say it can't be both.
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