LEADING THE RISK MANAGEMENT CHARGE IN LAW FIRMS KAREN K.H. BELL TORONTO, ON LEADING THE CANADIAN LAW FIRM IN THE 21ST CENTURY : MANAGING THE FUTURE NOVEMBER 5 7, 2006 HALIFAX, NS
2 Leading the Risk Management Charge in Law Firms The risk management imperative A number of years ago, I wrote a paper entitled: Liability of the Legal Professional Advisor and the Call for Risk Management 1 and presented it to a meeting of the International Bar Association. In the midst of drafting this paper, I was rooting through some files and that earlier paper caught my eye. It was prepared at a time when risk management in the legal world was still quite removed from the radar screens of most law firm management although there was serious interest by professional liability insurers. A quick read of that paper gave me pause to realize that the circumstances that drove the need for risk management then remain essentially the same today, albeit more severe. It seemed fitting to include the description in my earlier paper of those circumstances to set the stage for this discussion. Here is what I wrote: Lawyers today practise in an increasingly complex world. There is more competition within and outside of the profession. Consumerism is promoting both price and quality consciousness. There is a decline in professionalism. There are new and ever-expanding bases for professional liability. In short, the demands on members of the legal profession and the related risks of a claim have never been greater. Today, exposure to claims and the related need for liability insurance is simply a reality of practice. But leaving this to insurance is
3 not the answer as there are many elements about claims, regardless of whether they are successful, for which insurance does not provide protection. Consider the stress caused by the situation, the time spent on the claim, the professional stigma, the lost opportunity to work on other matters, management time spent on the claim, and the harm to the firm s reputation all of which collectively amount to a huge cost to the lawyer/s involved as well as to the firm. The best way to guard against these realities is through proactive action to take control and minimize risk. Today, the legal practice climate has only become more complex and demanding, and the costs of claims even higher 2. Witness the ever deepening interrelationships of businesses, their cross-jurisdictional activities and the appetite for attributing responsibility for their conduct to lawyers and other professional advisors. Also consider how law firms are developing into major business enterprises. The time has come for law firm management to acknowledge the need for a more integrated and comprehensive approach to managing these risks, and to appoint a risk management leader whose job it is to represent the interests of the firm, to manage the many risks faced by the firm and to be accountable to the firm for the investment made in risk management. The purpose of this paper is to demonstrate the value of having such a leader in the law firm and to present the trends in respect of creating such a role in mid size and large firms.
4 As a starting point, we need to define the core concepts of law firm risk management. What is risk management in a law firm? Risk management is an all-encompassing strategy to secure the viability of an organization. It requires a long-term commitment and behavioural change. Every law firm needs to understand and identify the risks inherent in its business. While malpractice claims (mistakes by individual lawyers) account for a significant element of the risk in a law practice, there are many other risks at play client defections, departing talent, business interruption, legislative compliance failure, and loss of reputation. A risk management approach calls for a focus on those activities that are the key drivers of the business. It requires an assessment of objectives and identification of the related risks coupled with significant awareness building, education and communication. This effort must be supported by the development and implementation of policies, practices, processes and procedures to manage the identified risks, the specifics of which will depend on business priorities and tolerance for risk. For those risks deemed most significant, reporting and audit mechanisms must be in place to periodically evaluate and test the effectiveness of these systems.
5 Experts agree, however, that the most effective way to manage the multiple risks facing law firms is not simply through policies and procedures; rather it is through the creation of a genuinely risk-sensitive culture in which acceptable risk levels are understood and lawyers seek consultation and guidance when confronting questionable situations. 3 In most law firms today, a risk-sensitive culture does not naturally exist; it must be consciously created and valued. What are the risks that require management? Since law firm risk management initiatives first found momentum about ten years ago, we have learned that the focus should be on managing change and improvements in the quality of client service. 4 We need to recognize that the roots of our business are in the relationship with our clients and that skills development in the areas of communication, time management and planning is essential for developing and nurturing client relationships. Listed below are the classic areas of risk involved in the business of law to be addressed in a comprehensive and integrated law firm risk management program: Engagement and business intake (including new client acceptance review) Conflicts management (including conflict screens) Matter management (including file opening and file assignment) Client service (including responsiveness and client communications) Document management (including confidentiality and sharing)
6 Current awareness (including legal update materials and CLE) Standards of practice (including knowledge sharing and mentoring) Compliance - regulatory and legislative requirements (insurance, securities, employment practices, privacy, money laundering) Retainers, fees, billing and collections File closing systems (including disengagement and file materials) Records management (including retention and destruction) Business interruption (including disaster recovery) Reputation management (including internal and external events) What determines successful risk management? The rewards of risk management include an enhanced practice environment and improved service delivery. These, in turn, produce a reduced exposure to claims and contribute directly to improved profitability. Risk management strategies are only as successful as a law firm s commitment to them. They can succeed only with the cooperation and commitment of the people in the firm. This commitment depends on leadership - leadership that is dedicated to developing risk resilient behaviour in the conduct of all aspects of the business of the firm. What does a risk management leader look like? While the title or name of the risk management leadership role varies, the term typically used is General Counsel, following the practice of our legal colleagues in the corporate world. Other terms applied are Risk Management Counsel or
7 Risk Management Partner. For simplicity, over the balance of this paper, I will use the term General Counsel when referring to the risk management leadership role. Not only is there variance in the name of this leadership position, but a review of firms with a General Counsel reveals a range in the scope of the position which is dependent on the size, style and structure of a given law firm. In all cases, the function is truly one of risk management. Activities and responsibilities of the position typically include guiding the firm on the identification and resolution of conflicts; dealing with matters of ethics and professional responsibility; managing the professional liability claims; developing policies and procedures relating to client acceptance and matter intake; setting and monitoring client service standards; ensuring regulatory and legislative compliance; and building awareness within the firm of prevailing risks and how to manage them. All of this should sound very familiar to those in law firm management since these activities constitute much of the legal work involved in running a law firm. In most mid-size and large firms, lawyers with varying degrees of relevant expertise or experience, either individually or in committee, are assigned to attend to different components of this function. However, traditionally, these lawyers have as their first priority delivery of legal services to the firm s clients and so the risk management work comes second. That means that important law firm business just does not get the required attention or consistent handling.
8 The value of the risk management leadership role Identifying and designating the right lawyer to devote his or her time to the risk management needs of the firm means there is someone who will be accountable for addressing these important firm interests and issues. It also means that the firm s billing lawyers can focus on attending to the needs of the clients. Those who have assessed the pros and cons of a General Counsel position share the same conclusion: through this role, risk management related issues will be handled because there will be a driver; they will be handled efficiently in the time required - usually immediately - because it is someone s specific job to do so; they will be handled efficiently, consistently and thoroughly because he or she brings the required expertise and experience; and the firm will enjoy a decrease in non-billable time of billing lawyers (which translates into increased billing opportunities). Let me describe some of the thinking underlying this conclusion. 5 Navigating risk in the changing practice climate As detailed earlier, the practice climate is only becoming more complex and is presenting many new challenges. This calls for a proactive approach. There needs to be a compelling voice within the firm for risk awareness and risk resilience; one that speaks for the well-being of the firm as a whole. That is not to suggest that management has no such commitment. But management is
9 typically consumed with issues of cost containment, profitability and growth rather than the many risk management issues that I have described. A General Counsel will be able to advise and assist management on these issues with a higher degree of focus and specialization than is experienced today. Advising independently from management The General Counsel s role is to advise management rather than be part of management. In short, the General Counsel is the firm s lawyer. It is the responsibility of the General Counsel to gather facts, make assessments and develop recommendations to guide management on risk-related issues; to be an advisor who is alert to the issues of today and tomorrow, and who develops and implements the strategies required to protect and advance the interests of the firm. Managing risk immediately, efficiently and consistently If handling risk management issues is left to a committee comprising billing lawyers as is usually the case the result is that the issues tend to take a great deal of time to be addressed. Meetings, assessments and decisions depend on availability of each member of the particular committee. Often, client matters rightfully take priority, and the work of the committee is delayed. A General Counsel can ensure that action is taken to allow for more immediate decisions. This is not to say that there is not a role for the committee. If there is specific expertise represented in the committee, this input is clearly important and
10 valuable. But the fact is that a General Counsel can do the lion s share of the work and reduce the time needed to be spent by the busy billing lawyers who are committee members. Furthermore, efficiencies result from having one person expert in the many practice exposures of the firm to be responsible for identifying and handing them in a planned and integrated manner. Increasing the opportunity to generate revenue If one accepts that the risk management activities I have described all need to be addressed for the proper management of a law firm, and they currently are done, to a large extent, by billing lawyers, then these lawyers are not billing when they should be. As a result, there is a significant lost opportunity to generate revenue. In addition, client service is at stake as clients expect their lawyers to be available to attend to their needs. Unhappy clients mean current revenue opportunities are also threatened. By transferring most of this non-billable time to a specialist who can commit expertise and focus to this work, billing lawyers can redirect their efforts to clients and to revenue generation. It is also worth considering that with the General Counsel in place attending to the interests of the firm, the firm is, overall, better positioned to provide excellent client service and that can translate to additional future billing opportunities as well. The scope of the role of the risk management leader With those benefits and opportunities in mind, let us consider more specifically what the role of the risk management leader entails. Simply stated, the nature of
11 the role is broad. It is up to the firm to decide the breadth and the specifics, depending of firm structure, its business objectives, its size and geographic spread, and the assignment of duties to other. Acting on behalf of the firm rather than any individual within the firm, the General Counsel will focus on a number of risks that relate to the pursuit of firm objectives. The natural subject areas include the following: Client Relations (including engagement, intake, conflicts, client service); Professional Responsibility and Professional Liability (including ethics, complaints, insurance and claims, exit of lawyers); Compliance (including regulatory, privacy, securities, employment practices, money laundering); Practice Management (including matter management, standards of practice, peer review); and Document & Records Control (including document sharing, confidentiality protocols, records retention and destruction) To address the issues, the General Counsel will recommend policies and procedures, oversee awareness and education about them and the underlying risks, and ensure the implementation and audit of the various systems that are required to support them. In addition, the General Counsel should have, as an overall priority, regard for the ultimate asset of the firm the firm s reputation. As such, it is important for the General Counsel to contribute to other initiatives in the firm, including the firm s knowledge management strategy, by promoting secure and appropriate
12 access to information/knowledge; the professional development program, by offering education about risks significant to the firm and the required risk resilient mind set for a healthy practice; current awareness programs, to ensure that all lawyers are keeping up to date and enhancing their expertise; and training of new lawyers and staff, to ensure they understand and comply with firm policies, procedures and standards. The appointment of General Counsel in US law firms Enough theory. Are there lawyers in the role of General Counsel who carry out these duties? At present, the risk management leadership role which I have described is essentially still just a concept on the Canadian law firm landscape, although we do have a couple of examples to which I will refer later. However, we need look no further than to the experience of our American colleagues to find accelerated growth in the trend to having a General Counsel in mid-size and large firms. A survey by Altman Weil Inc. conducted in March 2006 of Am Law 200 firms across the US provides us with some compelling facts. 6 82 of 195 Am Law 200 firms solicited (42% participation) responded to a detailed survey questionnaire about the General Counsel role in their firms. What follows is a summary of key points drawn from the data:
13 85 % of the firms surveyed indicated that they have a General Counsel. Of those firms who indicated they did not, 17% expected to establish a General Counsel position within a year. 89% of the firms with General Counsel reported that the lawyer in the role was a partner. Just over a third of law firms with General Counsel indicated it was a full time role. Over two thirds of the firms with General Counsel reported that he or she reports to the firm Chair or Managing Partner. Only 28% of General Counsel serve on the governing committee of the particular law firm. (Likely a reflection of the attempt to maintain independence as an advisor and to claim privilege over communications and advice provided to the firm.) Most of the General Counsel in law firms (80%) have a litigation background and the principal activities relate to matters of professional responsibility, professional liability and advice to law firm management. Other areas of responsibility include employment law, leases and commercial real estate issues, partnership/llp issues, insurance and
14 employee benefit issues, representing firm in disputes, partner exits, and audit letters. The appointment of a risk management leader under the title General Counsel in mid-size and large law firms is clearly established and growing in the US. Is this a trend that is likely to put down roots in Canada? The emerging role in Canada There are a couple of firms who recognize the value of a dedicated risk management role and have taken action. Just over a year ago, Fraser Milner Casgrain LLP (comprising 500 lawyers in six Canadian cities and in New York) appointed Jamie Dunbar, a litigator of 25 years experience and long time partner in the firm, as its General Counsel. Mr. Dunbar s General Counsel duties take up about half of his time and include advising management and lawyers in the firm on conflicts, professional responsibility, professional liability and certain matters of legislative compliance. Earlier this year, Torys LLP (comprising 300 lawyers in Toronto and New York) showed similar leadership on the risk management front and appointed Julia Holland, a litigator with 10 years of experience to a newly created role of Risk Management Counsel. In this role, Ms. Holland spends about 25 hours a week managing conflicts and the business intake system, overseeing compliance in a number of
15 areas such as privacy and insider trading, and is involved in professional responsibility and liability issues. Another example of risk management leadership is found at Gowlings LLP (comprising 700 lawyers and patent & trademark agents in eight Canadian cities and in Moscow) where approximately four years ago, the firm established a full time national role of Risk Manager reporting to the COO. John McKernan, a veteran from the insurance industry, was named as Gowlings first Risk Manager. He brings a seasoned risk control perspective to a number of the firm s business processes, including designing and managing the professional liability program, placing other insurance coverage, conducting general risk management awareness related to those programs, managing professional liability claims and reviewing firm business contracts and agreements. The call for more risk management leaders There may be other Canadian law firms which have implemented similar positions and there will be, in time. I invite those of you involved in the management of mid-size and large firms to reflect on the benefits and examples that I have described. I encourage you to consider how assigning someone to lead the development of a more risk resilient law firm will improve the working environment for the lawyers and staff in the firm, will result in better service for clients of the firm, and will enhance the value of the firm as a business. --------------------------------------------------------
16 Endnotes 1 Karen K.H. Bell, Liability of the Legal Professional Advisor and the Call for Risk Management, International Bar Association-Committee 13, Vancouver, British Columbia, September 1998. 2 Lawyers Professional Indemnity Company (LAWPRO), North America s largest bar-related malpractice insurer, provides through its risk and change management program, practicepro, information and resources about the many exposures facing lawyers in practice today and the types of costs related to those exposures. To access this information visit, www.practicepro.ca and www.lawpro.ca. 3 James W. Jones, The Growing Challenge of Law Firm Risk Management, The Hildebrandt Institute Fourth Annual Law Firm General Counsel s Forum, New York, New York, November 2005. 4 See LAWPRO Magazine, Volume 5, Issue 1, Winter 2006. 5 See the following for a discussion of the value of the GC role and responsibilities involved. Peter J. Winder, Law Firm General Counsel Extravagance or Necessity?, The Professional Lawyer, Volume 15, Issue 4, 2005; Anthony E. Davis, The Risk Management Function, The Hildebrandt Institute Fourth Annual Law Firm General Counsel s Forum, New York, New York, November 2005; Elizabeth Chambliss, The Emerging Role of Ethics Advisors, General Counsel, and Other Compliance Specialists in Large Law Firms: Some Initial Findings, APRL Annual Meeting, Washington, D.C. August 2002. 6 The full report of the tabulated data appears on the Altman Weil Inc. web site at www.altmanweil.com/lawfirmgcsurvery2006. The basis for the statement that growth in such appointments is accelerating comes from the 2006 Survey Analysis which compares the 2006 results to those of similar surveys conducted by Altman Weil Inc. in 2004 and 2005.