No return to the status quo ante?

By | 29th September 2009

The stock market and some of the respected commentators think the recession is over. Others, including the Bank of England, are not so sure.

You could be forgiven for being confused!!

Recession means different things to different people and businesses are affected in different ways. Interest rates are at an historic low and may remain at this level for some months, possibly years. Some lawyers believe the good times are just around the corner. They point to increased M&A and restructuring activity and some City lawyers point to an increase in litigation instructions. Others admit that life has by no means returned to normal (pre Lehman Brothers/Northern Rock etc). Some areas of activity are at a very low ebb. Unemployment is rising and I do not expect the recession to be truly over until businesses are hiring again and law firms stop deferring training contracts and making lawyers redundant. It is noticeable that some firms are having more than one bite at that particular cherry.

Other pointers which suggest we are a long way from coming out of recession are the various reports of law firms cutting the headline hourly rate for partners. Unless you are an IP lawyer or an insolvency lawyer where apparently “the sky is the limit”, it appears that rates have come down by a substantial amount, one report suggesting that you can now hire a City Partner for £400 per hour whereas a few months ago it would have cost £680 or more.

Realistically, we have seen this before. Recessions always lead to patchy recovery and I am certainly old enough to remember the so called “big boys” being accused of “buying “ work by seeking to reduce the headline rate to the level of their smaller and less expensive brethren. While it has all happened before, I would not bet against those same lawyers trying to put their fees up again as soon as market sentiment in their area picks up!

So what, I hear you say? What is interesting is what law firms now do in areas such as marketing and relationships. Some lawyers have more time on their hands than they would like and it will be interesting to see what they do with it.

I expect to see efforts being made to stay close to clients and contacts, to appear understanding to clients in difficulty and available to them and others who have particular needs in these troubled economic times. Flexibility on pricing is just one of the ways that lawyers can help clients to help themselves!

Where I foresee major changes, however, is in the shape of legal services to come. The Legal Services Act 2007, heralding so-called ‘Tesco Law’ is part of this but I fear that a number of lawyers (and other professions too, I suspect) may be in for a surprise when they find that the market for legal services has changed over the course of the recession.

To return to the theme of my earlier post The way of Ozymandias, times change and change is one of the few certainties of our time. The lawyers who will prosper are those who understand what their clients need in the future and who do not assume that they can just go back to what they were doing before. I have mentioned before that lawyers who do not equip themselves with a basic understanding of the requirements of electronic document management may be in for a shock. The Jackson Report will, I suspect, give an encouraging nod in the direction of proper and appropriate use of technology in litigation both for review and analysis as well as in disclosure/discovery. Even if I am wrong about that, there will be a new Technology Questionnaire and a new Part 31 Practice Direction in the New Year.

Lawyers who do not pay attention to these developments will find themselves at a disadvantage when dealing with their opponents who have or the courts which will seek to enforce the new rules. How can you deal with the requirements if you do not have even the most rudimentary grasp of what is involved? How could this not ultimately be negligent at worst and at best not offering your client a good service? How can you decide what is proportionate if you do not understand what is involved in, say, e-disclosure or if you do not make it your business to make contact with a provider of such services for when you need them?

Whichever it is, the work will drift away to others more competent or even to expert providers who do understand what is required and can do the job for a fraction of the price leaving the lawyers bereft.

If I had responsibility for a group of lawyers, I would be encouraging them to go out and talk to providers in the electronic field, to see whom they like and with whom they could work when needed and to get a basic grasp of what is involved. I am not suggesting that everyone needs to become an expert but it is always a good idea to have sufficient knowledge to know when you are going to need help from an expert.

In my view, the recession is a good time to start the learning process so that when activity picks up lawyers are equipped to meet the needs of the changed world. There is unlikely to be a better time than now!