Earlier this month, British Columbia residents witnessed political awkwardness at a level unusual even by West Coast standards when a special prosecutor cleared B.C. Solicitor General Kash Heed of wrongdoing in a criminal investigation. Mr. Heed was re-appointed to cabinet later that day, only to re-resign the next morning after the special prosecutor stepped down as a result of his law firm’s $1,000 contribution to the Heed campaign shortly before the last provincial election.

The special prosecutor has stated that he was aware of his law firm’s donation early on.  However, he did not consider it an apparent or perceived conflict of interest until too late in the day to avoid the media storm that inevitably followed when he stepped down immediately after exonerating Mr. Heed. The Law Society of British Columbia has launched an investigation, the Premier has called for a review of the process by which special prosecutor appointments occur, and the Vancouver Sun (B.C.’s major daily newspaper of record) has dutifully pulled out a list of other prominent counsel who have acted as special prosecutors subsequent to making political donations to the governing party in B.C.

Let me be clear that I do not have any belief whatsoever that the campaign contribution in the Heed situation had any bearing on the special prosecutor’s decision-making process – a view I’m confident the vast majority of those in the legal profession would share. Despite that, it is equally clear that the very small financial donation in this case has had significant repercussions for each of the Solicitor General, the governing party of British Columbia, the Attorney General’s criminal justice branch, and the special prosecutor and law firm involved.

While unique on its facts, this incident raises the larger question of whether law firms ought to still be in the business of making political donations or campaign contributions.  In fact, the law firm at the center of the Heed incident has subsequently announced that it will no longer make such donations. While some may consider this an example of firmly closing the barn door after the horse has bolted, it nevertheless represents a policy rethink that most Canadian law firms have yet to undertake.

As seen through the lens of a law firm’s marketing strategist, what is the risk/reward ratio of a firm making a financial contribution to a political party or an election campaign at any level of government?

In recent years, we have seen many firms move away from active participation by their lawyers on boards of directors, both for liability reasons and to avoid potential conflicts of interest. It strikes me that when it comes to conflicts, the argument for declining to make political contributions is at least equally strong.

Media reports and opinion polls regularly state that public confidence in the institutions of government, including both Parliament and the judicial system, is decreasing over time.  Meanwhile, scrutiny of these institutions continues to grow. As such, any whiff of perceived bias or potential conflict of interest is certain to be seized upon, both by political factions seeking to take tactical advantage of an opportunity that has presented itself and also by the general public, who increasingly throw up their hands in disgust at all players involved whenever such stories appear in the media. TheVancouver Sun article referenced earlier about other special prosecutors who have made political donations is a classic example of the guilt-by-association ethos that prevails once public confidence founders.

I would also factor into the equation that in any law firm beyond a handful of lawyers and employees, different political preferences will prevail, even within the firm. There will be those who chafe – loudly or otherwise – at the idea of firm funds being spent in support of a cause, party or politician they don’t favour.  The resulting disconnect has a corrosive effect on the culture of the firm.

To my mind, all of the above are reasons why the risk/reward ratio for law firm political donations is frequently too high to make it a prudent part of law firm marketing strategy. Firms interested in pursuing government-related work of any kind need to be both completely transparent and utterly pristine in their dealings with public bodies and political organizations. This will help preserve their opportunity to act in a legal capacity later on.  Campaign contributions muddy the waters, and where mud exists, mud-slinging is sure to follow.

Legal Futurist Richard Susskind speaks to the BCCA Centenary Conference in Vancouver, April 23, 2010

“Dressed smart like a London bloke, before he speak his suit bespoke.”

- Kanye West, from the song American Boy.

Last Friday I had the opportunity to attend the academic and judicial conference held as part of the British Columbia Court of Appeal’s centenary celebrations.  Of the many excellent presentations that day, I was most intrigued by the opportunity to hear first hand Professor Richard Susskind, and he did not disappoint.

Professor Susskind began with an anecdote involving power drills.  As the story goes, Black & Decker routinely takes their new hires for a period of training, shows them a picture of a power drill and asks them to confirm that this is what the company sells, which the new recruits blithely do.  The company then shows them a picture of a hole in a piece of wood (as illustrated above) and advises that this is what their customers are in fact buying – not a product the company offers but rather a solution to their problem.  The message is a stark one – do not become so focused on your current product or service offering that you become myopic and lose sight of the client’s perspective – and their willingness to move their business elsewhere if a simpler, cheaper or otherwise better solution is presented.

Susskind feels that law firms are currently geared towards providing what he calls “bespoke” legal service, by which he means individualized, custom legal advice created for and tailored to the specific client and situation and provided almost exclusively directly by the lawyer(s).  Almost by definition, this sort of personalized attention is a very expensive offering.

He sees the types of legal service or legal staffing possibilities along a spectrum and predicts a transition along this path:

Bespoke>standardized>systemized>packaged>commoditized

Susskind posits that most corporate and government in-house counsel face “a dilemma in 3 parts”:

1. They are being instructed to reduce their in-house legal staffing;
2. They are being instructed to reduce their external legal spend; and
3. They are being asked to assume more legal risk and manage more compliance related activities.

The result is that there is an inevitable and increasing market pull to the right of the bespoke > commoditized continuum.

Susskind asks the critical question:  ”What parts of lawyers and judges work could be undertaken differently – more quickly, cheaply, efficiently or to a higher quality – using alternative methods of working?”  He believes that most lawyers spend too much time doing routine work others can do.

Many lawyers, he says, insist that what they do is not capable of being reduced to a fixed fee or otherwise re-imagined in a way that leads to significantly lower costs, a position he flatly rejects. He points to the fact this commoditization trend is already taking place or has taken place in other complex professions (tax accounting, healthcare) and believes that legal services are not immune to the same pressures.  He insists that we will see more “decomposing” of legal work  - by which he means deconstructing or unbundling complex processes into their task-based components, with many of these unbundled components then being provided by lower-cost, more efficient alternatives such as outsourcing, off-shoring, automated drafting, closed client communities,de-lawyering, etc.

Despite what some may see as Susskind’s negative prognosis for the legal industry, my impression was that he is merely describing the forces he sees at work, and that he in fact imagines a bright future for those lawyers and law firms that recognize the tectonic shifts underway and position themselves for prosperity by aligning their offering with market demands.

Professor Susskind closed with a quote from a local: Vancouver-based science-fiction writer William Gibson, who has famously said: “The future is already here. It’s just unevenly distributed.” I am left with the impression that Professor Susskind has received a greater distribution than most of us.

Personal Anecdote Postscript:

While reading his book, two phrases that Susskind uses extensively – “bespoke legal services” and “decomposing legal services” – rang noticeably off-tune to my staunchly North-Americanized ear.   “Bespoke” exclusively conjures up custom-tailored suits to my minds’ eye, while “decomposing” immediately brings to mind any number of corpse/autopsy scenes from the endless cycle of CSI: Everywhere episodes that proliferate on cable television.  Professor Susskind actually referenced this very point during his lecture with respect to the word bespoke, and confirmed that he had only belatedly learned of the term’s unfamiliarity in this part of the world.

Legal technology fanboy that I am, I availed myself of the opportunity to speak briefly with him in the conference hall after the session and mentioned that the word decomposing also sounded unorthodox to me.  Susskind laughingly informed me that he had similar commentary on a late draft of the book from a close North American friend who is a senior executive at a major American corporation (my memory fails me as to exactly who it was) who also made the decomposing – bodies linkage.  Consider this then my public standing offer to the good professor to “Canadianize” any draft treatises he may choose to publish in the future – a place he seems to already inhabit.

For Vancouver area lawyers and legal marketers interested in the exploding world of Social Media/Social Networking and wondering what all the fuss is about, I will be presenting a breakfast session next Wednesday, January 21st at downtown law firm Farris Vaughan Wills & Murphy. Any and all interested parties welcome from committed luddites to the merely curious to hardcore techgeeks who will undoubtedly be able to teach me a thing or three along the way.

Details and registration information are available on the Legal Marketing Association Vancouver Chapter website.

I came across an interesting law firm retention strategies article in the New York Times this morning about the general ramp-up in perks, benefits, bonuses, and what-have-you that law firms in the U.S. market are resorting to in order to attract and retain top legal talent. The list of incentives in play is an interesting one – random acts of kindness from the happiness committee at Perkins Coie, cash bonuses on top of year-end bonuses at Cravath, Swaine & Moore in New York, a $2000 bonus for employees who buy a hybrid car at DLA Piper, to in-house meals, on-site daycare, concierge and personal valet services elsewhere.

While one lawyer quoted in the article expressed disdain at some of the more exotic perks (pet insurance, concierge services) as an “appalling” attempt to “set up people’s lives”, my view is that Marina Sirras, who runs a legal recruitment firm in New York, is bang on with her assessment that “money is not the only thing that drives these lawyers right now – they want to be able to have a family and enjoy their family. This has never been as hot an issue”. The article touches upon the fact that child-care is often a critical issue in this context, and cites a handful of firms that have experimented with on-site daycare and emergency nanny services. My money says the first big Canadian firm that gets behind child care in a serious way is going to have a significant competitive advantage in the market when it comes to attracting and retaining the associate generation.

For those of you who haven’t picked up on it yet, I would like to pass along a note regarding a new blog Skunkworks recently developed for David J. Bilinsky: www.thoughtfullaw.com.

Many readers will know Dave as the Practice Management Advisor and staff lawyer for the Law Society of British Columbia. Dave is also the Editor-in-Chief of Law Practice Magazine, published by the American Bar Association, and founder and chair of the Pacific Legal Technology Conference, to name just a few of his many hats.

Dave is a prolific writer on law firm management, lawyer compensation, legal ethics and a host of other topics and is uniquely situated to provide real insight on these issues, and I’m confident his blog will quickly become essential reading for many of you. Enjoy.

Suits

Originally uploaded by skunkworks creative group.

I was in the midst of researching and writing an article on the topic of law firms incorporating diversity messaging into their marketing today when I came across this picture which seemed like a good visual metaphor for the subject. (Conveniently, it also gives me the opportunity to launch a new feature on the Legal Marketing Canada Blog – photos!)

I will provide a more detailed post on diversity marketing next week once I’ve completed the article but my sense is that diversity messaging is going to become more prominent in the year(s) ahead. The impetus is being driven both by larger corporate clients who are looking at law firms to mirror the clients’ own diversity initiatives and also by the younger generation of legal talent who are themselves more diverse in composition than their predecessors and who are increasingly demanding a demographically and culturally inclusive working environment.