Random Acts of Generosity?

An article this summer in the New York Times Magazine describes the launch by Hyatt Hotels of a customer relations program that CEO Mark Hoplamazian describes as "random acts of generosity."  Prompted by years of behavioral science research and months of consumer research, the program charges Hyatt employees with occasionally picking up bar tabs and other obligations of customers free of charge. The point?  To generate gratitude.  Which ultimately "increases... sales growth," as the Journal of Marketing quite bluntly puts it. 

Unlike frequent stay programs with specific qualifications that reward customers with an extra night or an upgrade, these Hyatt freebies are not "earned," and are therefore theoretically more likely to be truly appreciated.  Although there is a risk.  There is, after all, as the Times article points out, a thin line between promoting gratitude among the favored and creating resentment among those left out. 

So is this a viable relationship-building model for us in the legal business?  Is there any possibility that some sort of generosity extended to our clients could engender the type of gratitude that would fall to the bottom line?  And even if it were possible, how specifically are we supposed to be generous in the context of what sometimes amounts to cut-throat dances with resentful clients who are convinced they are being taken advantage of ?

While a young associate at a big firm, I was charged with the closing of a deal that had been a nightmare from beginning to its not-too-soon end.  The client had originally chosen another firm that had been conflicted out, hiring us begrudgingly and making sure we knew through the entire timeline that we were not their first choice.  The General Counsel was young--an interim replacement for the GC who had taken a better position--and afraid of losing his job.  Aggressive questioning of our strategy and reasoning was a daily event, followed by further questions rechecking the initial explanations, followed by very obviously running past us the reasons unnamed others (lawyers from the favored firm?) thought we were making an error.  It wasn't a major transaction we could boast about, we were certain not to be able to recoup the time we were investing, it was a client we obviously were unlikely to hold onto--we all longed for the closing to put us out of our collective misery.

The closing followed of course, as night the day, the same pattern of dysfunction.  Late in the night the GC called to complain about our printing of a report, which was commencing as we spoke, to be distributed with a collection of other documents--an important Senior Vice President had that day located sufficient copies of that very report boxed away in the corporate basement.  Had we no concern for expense?  Canceling the new run would have involved a lengthy and not inexpensive transition, of course--but.  I was looking for some small way to connect with this company.  We got the printer, the SVP and the GC on the line and as the most senior lawyer left standing, I     negotiated what we all knew would be a cumbersome and more time-consuming but ultimately somewhat less expensive solution using the found reports.

The partner in charge questioned my judgment after I straggled in the next day--primarily on the grounds of throwing more good time after bad.  My only defense was that our two main company contacts--the GC and the SVP--really wanted the face-saving, if nothing else, and, with primarily the investment of a few more hours, we could accommodate them.

There is, of course, a happy and relevant ending.  The matter closed.  The interim GC quickly announced that he was moving to a GC slot at another company.  The SVP became the one responsible for approving our bill and recommended that the company use us instead of the other firm as its ongoing counsel.  The GC, in his new position, brought us his next major deal, evidently with the intent to use our firm on a consistent basis.  The partner called me back into his office and praised the judgment he had earlier found wanting.  All because we figured out how to use the reports in the basement.

So sometimes the incidental gesture produces a gratitude that rewards.  Particularly in this economy, I would say it is worth the try.

The Emerging Stakeholders in the Legal Business

In David Maister's article "Are Law Firms Manageable?" on the seemingly intractable challenges to law firm management, he points out only half facetiously that firms may get away with perpetuating these inefficiencies because there is no competitive fallout:  "The greatest advantage that lawyers have is that they compete only with other lawyers."  

 

The time may be fast arriving when that is no longer true.

 

Australia's Slater & Gordon is the world's first publicly traded law firm.  S&G went public in May 2007, the first IPO for a law firm after new legislation went into effect Down Under permitting investment by non-lawyers.  Last February, the firm reported net profit of $8.46 million for the six months ending Dec. 31, 2008, a 22.4% increase over $6.9 million the prior year.  S&G's revenue increased 35% to $50.5 million over the same time frame. The firm expects earnings to rise into the second half of 2009.

 

At the time of its listing, the Melbourne-based plaintiffs firm, known for its contingency fee personal injury work and securities class actions, had a market capitalization of $89.7 million and gave stakes worth between $2 million and $8.5 million to seven equity partners.

  

Meanwhile, on the other side of the Pond, Lyceum Capital became the first investment house to openly target legal services, positioning itself ahead of a law similar to the one in Australia--the 2007 Legal Services Act--which comes into full force in the UK in 2011.  This act also authorizes the investment in and management of law firms by non-lawyers, and could produce what some have termed the most liberal legal market in the world. 

 

Lyceum Capital has raised over $500 million and intends to take minority and controlling stakes primarily in midtier midmarket firms with revenues of 20 million pounds plus who are doing bulk work and who would benefit from outside investment for purposes of carrying out a merger, developing a new practice area, and funding expanded IT systems. 

 

According to Lyceum Capital’s Managing Partner Jeremy Hand: "Law firms are businesses. We are not pretending we are lawyers but we can help businesses develop -- whether through giving advice, overhauling IT systems or allowing them to grow with new hires."

 

He added that lawyers "think they are in a competitive industry but they do not appreciate how different it is in other sectors. This will change the entire business landscape. There is no doubt in my mind there will be winners and losers in this situation: Firms cannot be complacent. There is no guaranteeing firms at the top of their game now will be there in a few years' time."

 

To some, it is clear that the outside investor revolution is not coming to the U.S.--"It's a perpetual conflict, at least potentially, with non- lawyers controlling a law firm,'' says Steven Krane, the chair of the American Bar Association's ethics committee and a partner at New York's Proskauer Rose. "There's very little interest in changing the rules.''  That said, in response to another change in the market--the avalanche of lateral hiring--the ABA has not balked at changing the ethics, and specifically the conflicts, rules to clear the way for laterals to move in and out more easily.

 

Law firms, which could use capital to expand and fund cases, are grappling with the arrival of public offerings in the same way as did the old guard investment banks.  Another industry once dominated by private partnerships, it began the transition to public ownership 30 years ago. Financial pressures on other banks mounted after Merrill Lynch & Co. listed its shares in 1971 in what became increasingly obvious as a competitive advantage, culminating in Goldman Sachs Group Inc. becoming the last major investment bank to make the change in 1999.

 

"If the English firms can sell stakes in their law firms publicly, that will then give them an advantage,'' said Ralph Baxter, the chief executive officer of the 924-attorney San Francisco-based firm Orrick, Herrington & Sutcliffe.  And off to the races we go.

 

For purposes of comparison at the time of S&G's listing, an American Lawyer article attempted to attach capitalization values to several Wall Street law firms, grouping them into "blue chips"--Cravath, Swaine & Moore, and Wachtell, Lipton, Rosen & Katz,  "multinationals"--Skadden, Arps, Slate, Meagher & Flom and Latham & Watkins, "growth stocks"--Dechert and DLA Piper, and "small caps"--Pepper Hamilton and Womble Carlyle, and arriving at equity market capitalizations of from $552 million (Womble Carlyle) to $2.9 billion (Skadden, Arps). 

 

Those numbers look mighty healthy to the partners who have seen not only a slowing in profit growth but even decreases in profits over this past year.  With no quick rebound in sight, there will be increasing pressure from partners of U.S. law firms on management to explore, and if required, work to legitimize the option of obtaining public investors. 

 

And if non-lawyers are not yet investing here in the U.S. in law firms, they are already investing in litigation. 

 

A $100 Million Wager 

 

Juridica is a publicly traded UK fund that invests in plaintiffs commercial litigation in the United States. This spring the company announced that it had completed a second round of financing, raising 33.2 million pounds (about $47 million) on London's secondary exchange, the Alternative Investment Market, after an IPO in December 2007 of 74 million pounds, making a total of over $100 million available for investment.


Juridica is not the only hedge fund betting on litigation. There are several such investors in U.K. litigation, including a fund under the auspices of Allianz, the insurance company. In the U.S., according to Juridica CEO Richard Fields, Credit Suisse is a major player in the commercial litigation funding market as well.

Evidently Juridica has already taken an equity interest in 17 large commercial cases, most of them in the U.S.  One case and one law firm loan paid off by the end of the year, so Juridica offered investors a 4.6% dividend.

Fields says general counsel seeking alternative billing arrangements with law firms have

created opportunities for Juridica. "Having an outside investor that takes an equity piece is not that big a leap," he said. "In a way, our timing was fortunate. The recession created more interest in spreading risk."

 

Who Needs the Money Anyway?

 

Lyceum Capital is only one of three private equity funds that have sprung up in anticipation of the implementation of the Legal Services Act of 2007 and there are several litigation investment firms already.
 

With the tightening of credit, says Simon Johnston, senior partner of the 550-lawyer London firm Nabarro, "people will be thinking about their options." 

 

The major Magic Circle firms have said they are not interested because they don't need the money.  "Why would we need the money?" Allen & Overy managing partner Wim Dejonghe asked.

 

Why indeed?