We all face a common challenge

How would you define your firm’s culture?

In our kind of business, a strong firm culture easily recognizable by clients is essential. Garrigues has developed a global culture, based on strong ethical values and a commitment with excellence, shared by our 2,000 people team in 13 countries.

The client benefits from the fact that they live the same kind of experience and receives the same excellent service in any office of our firm all over the world regardless of which professional he is working with. So, to answer your question, culture for us is key to consolidate our leadership through excellence.

Since becoming managing partner, what changes have you made that directly benefit clients?

I would say a new way of approaching growth on a twofold. First, a change of pace on the firm’s international expansion in order to achieve this unique and global culture mentioned before.

Instead of seeking partnerships or acquisitions, our bet is on organic
growth, opening our own offices and tracking down the market in search of professionals that are not only the best technically speaking, but who share the same values and are ready to embrace Garrigues’ culture and offer a seamless service worldwide. A perfect example
of this is our Latin American expansion.
Second, our approach to financial growth has also changed. I became managing partner during the last recession (probably the worst we have seen in our history) and my aim was to achieve financial strength subject to profitability. As a result, in the last five years our productivity ratio has increased by 25%. I truly believe our clients have benefitted from this strategy.

What are the biggest challenges facing firms in Spain?

Firms all over the world and across all sectors face a common challenge, to be able to adapt to an ever-changing scenario. Trying to predict how an industry will look like in 20 years is almost impossible. So I believe that we have to make sure that we have the best possible talent and provide them with the best possible training so that they can adapt to market demands any time.

What are your biggest success stories to date?

If you ask about my personal success stories, I like to think they are related to my clients and my activity as a lawyer, which I have never abandoned.

If you ask about my role as a managing partner, I would go back to my previous answer: the change of strategy in our international expansion is a guarantee that our clients receive the same outstanding service all over the world and our financial strength is a guarantee of stability.
Other than that, I am proud that over the years we have built a trusted brand in the top of mind of clients, potential employees, competitors, and all of our stakeholders that stands for both technical excellence and performance and impeccable ethics.

How have attitudes to diversity in law changed? What still needs to happen to make the legal industry more inclusive?

People are the biggest strength of a law firm; and ours include a team of 2,000. Fruit of this vision, is an organisation determined with attracting and keeping the best talent, promoting equal opportunities, applying objectivity in its promotions and retribution policy, continuous learning, collaborative working.

Ten years ago, Garrigues broke new ground as one of the first law firms to implement an equality plan. Year on year, the firm has continued to add new measures to the plan, which has now yielded measurable results. In 2017, the firm launched its second equality plan, upholding the measures introduced
under the first plan and adding new measures leading to greater retention
and professional development of our people.

Our team has a clear picture of our commitment to diverse talent: we
have 53% women and 23 nationalities in our firm. Nevertheless, we are fully aware that we need to work every day in order to make this industry more inclusive.

Is technology changing the way you interact with clients and the services you provide them?

That technology is reshaping the world is an undeniable fact. Our clients are changing and we have to change even faster to anticipate their needs and continue to be their preferred partner in this ever-changing world.
Having said this, technology cannot be a goal in itself: our strategy is to adopt those tools that, by enabling us to improve efficiency, allow us to improve our client service. I do believe that today human intelligence is far more important than artificial intelligence.

What is your one major prediction for the legal market?

As I mentioned before, I do not feel capable of grand predictions in this convulsed environment. If I look at Garrigues’ future, I believe our success would be to consolidate our leadership in Continental Europe, to build an even stronger Latin American presence, to continue anticipating our clients’ needs and offering them the best possible service, to remain a pioneer in our industry and to contribute modestly to our society’s challenges. Not necessarily in this order.

How fantastically supportive the partners and all of our staff have been. I am very lucky to work with such great.

If you are standing still, you’re going backwards

How would you define your firm’s culture?

Culture is intrinsically linked to, and the foundation for, success. It is what drives behaviour and decision making at every level, and ultimately determines our ability to deliver outstanding results for our clients.

At Corrs, our culture is focused on excellence, collaboration – both internally and with our clients – and energy.

How has your involvement in client-facing work changed since becoming senior partner and CEO?

All our leaders are client-facing, and this extends to me as CEO. While I am involved in less day-to-day client work than I was, I continue to play an active role on significant, high-value matters. This is something I intend to continue as l enjoy the legal work and the client interaction.

It is also important in terms of staying close to the market and relevant to developments and ensuring you are able to adapt quickly to what is happening.

Since becoming CEO what’s surprised you most about running the firm?

I always expected it to be a people role and my experience has confirmed that. When I started this job as an external appointee, the first thing I did was to meet with every partner individually and to hear from them about their views on the firm – what was working well and what could be improved.
I have also done a series of Q&A sessions and focus groups with staff to have similar conversations with them. I have been pleasantly surprised by people’s willingness and appetite for change.

For a firm to be providing clients with exceptional service, the whole firm needs to be engaged and working together to successfully implement our strategies and continuously improve the way we do things.

If you are standing still, you are essentially going backwards in a time of fast change. That is true for any business, but at the moment, it is particularly true for the legal services sector.

What’s the main change you’ve made in the firm that will benefit clients?

I have prioritised a high-performance culture and commitment to excellence in everything that we do. Our core focus is the delivery of exceptional legal services.

Our approach to clients and matters, our internal structures and leadership, and our recognition and reward of our people, are all designed to achieve this.

What does innovation mean to you and how can firms be better at it?

Innovation is about improving efficiencies, adding value, and enhancing client experience. It is also a mindset, continuously considering and being willing to implement new ways of doing things better.

The evolution of the digital space and the development of technological tools in the processing and analysis of information offer exciting opportunities for law firms.

My own view is that law firms need to be fast followers in the technology space, to be across developments and to ensure that we are offering our clients the most efficient and best systems in the market.

Law firms do not have the resources, capability or culture to compete with the best technology companies, and it is not something they should necessarily try to do.

Our strategy is focused on providing clients with high-quality services that are dependent on expertise and judgment, and quickly adopting the very best tools in the market to facilitate this.

Is technology changing the way you interact with and service your clients?

Technology allows us to respond to client needs and market developments more quickly and efficiently than ever before.

We are able to use robotic process automation to optimise internal processes that traditionally have been labour intensive and repetitive, and this allows us to work more efficiently and utilise our lawyers’ time in more productive ways.

We also use data integration and machine learning as part of our offering to clients in a variety of contexts.

What are the biggest challenges facing firms in Australia?

A key challenge for all laws firm in Australia remains people, in particular, engaging new generations of lawyers and providing them with the career development and the opportunities they need to succeed and feel fulfilled.

Our international secondment and scholarship programs are two areas we are investing in as part of our strategy to address this. By providing our people with high-quality international opportunities, they return with enhanced experience, knowledge, perspectives, and relationships which position them and our firm well for long-term success.

What do clients want and why?

In my experience, the things clients want most are expertise, the ability to deliver value in any situation, and responsiveness.

They need to be confident you will understand their needs and deliver what they want, in the way they want it. This includes ensuring your teams have the right mix of seniority and expertise tailored for every matter, with every member of your team able to be relied upon on to deliver high quality legal advice, excellent service, and value.

It is particularly critical you are able to deliver insightful strategic advice on their most challenging issues. This is what really sets one firm apart from the next.

What have you found is the best way to retain talent?

People need to feel valued, that they are part of a team, and that they are rewarded for their efforts. It is important to ensure they have opportunities to develop – at whatever stage of their career – and have access to interesting work in which they feel engaged, challenged, and stretched.

All of this needs to be balanced with the recognition they have a life beyond work, to ensure the expectations and pressures placed on them are appropriate. You also need to ensure your culture is consistent with their values, for example in relation to issues such as diversity and community contribution.

What are your firm’s policies on diversity and inclusion?

Corrs is committed to all forms of diversity and inclusion and this remains a strategic priority for the firm. Attracting, retaining, and advancing the best talent is critical to our success and to achieve this we continue to promote a culture in which everyone is valued, supported and encouraged.

The key objectives of our diversity policy include increasing gender and cultural diversity in senior management and partnership roles and creating flexible career paths for all our people.

Corrs’ diversity policy is compliant with Australian Stock Exchange (ASX) corporate governance guidelines. Although the firm is not publicly listed, we took the decision to emulate the requirements of our ASX listed clients. We were the first national law firm in Australia to make this commitment.

What advice would you give to the next generation of partners?

The most important thing for all lawyers – at partner level or not – is that they focus on areas in which they have passion, enthusiasm, and interest. Lawyers who enjoy what they do are far more likely to succeed.

It is important also to be forward looking in terms of areas of expertise and what is most valuable to clients. This includes identifying market trends, developments and future opportunities (and conversely the areas which are becoming commoditised as the market evolves), and ensuring you are developing a skillset which will be valuable to clients both now and in the future.

Sports law is big business

How would you describe your practice?

A wide-ranging and extensive sports practice covering football, rugby union, rugby league, cricket, horseracing, cycling, boxing, and athletics. Football is the best known and most extensive. We cover the full range of football entities from the Premier League, Leeds United, Harrogate Town in the National League to the Bostik League.

Football is what I am most involved in – I am the chairman of the Football Board and the Legal Advisory Group of the Premier League, vice chairman of the FA, chairman of the FA Professional Game Board and Group Remuneration Committee. I am the chairman of Football Stadia Improvement Fund Ltd and a trustee of the Football Foundation, Britain’s largest sporting charity.

How has the practice of sports law changed over the years?

One of the biggest changes is the proliferation of lawyers and law firms across the country seeking to handle sports work. I first became involved in sport in 1989, three years before the formation of the Premier League. Anyone doing sport then was a rarity. Now everyone is trying to jump on the bandwagon.

Another change is the huge development of precedents in sports law – the Court of Arbitration for Sport, FIFA, UEFA, the FA, the Premier League, the EFL, and the courts have all developed a huge precedent bank.

Finally – the biggest change of all is the way in which sport and football, in particular, has become such big business!

How do you split your time between fee earning and management?

Thanks to my excellent management support at the law firm and at the Premier League and FA, the split is about 80/20 in favour of fee-earning work. Some years ago it was at a level of 50/50 and that is not what I signed up for. So we have pursued a deliberate policy of having great management, leaving me free to do the day job! There is nothing worse than a client wanting an urgent word with a lawyer, only to be told that the lawyer is in a weekly management meeting!

What are the biggest challenges facing firms of your size?

The first challenge is competing with much larger firms who have considerable infrastructure advantages, more capital, and more people. The way we compete is to get up earlier and stay up later!

The second challenge is maintaining the quality of lawyers coming to the firm. Younger lawyers have become more nervous, especially since the 2008 financial crisis. They want security, good pay but no risks. We have to offer a more participatory approach in order to attract them.

What do you think are the top three things most clients want and why?

Clients want quality advice and a definitive view – not ‘it could go either way’ or ‘it’s 50/50’; they want that advice promptly, if not yesterday; and they want value for money. The days of the open cheque book have gone. Why? Because they are entitled to the above. They are the paying customer!

What do you think lawyers generally could be better at?

Asking for money and collecting it. Too many lawyers want to enjoy the delights of doing the work but are embarrassed to ask for payment, particularly costs on account and then they are reluctant to chase unpaid bills. There is no better person to ask for the money than the fee-earner dealing with the matter.

Marketing – networking and selling are skills. The complete lawyer brings in the work, as well as doing it. Too often, one attends a networking event at which lawyers from other firms are standing about talking to each other – ask for the business!

Giving more decisive advice – clients need a definitive view but too many lawyers are frightened of being sued or being wrong and so they leave the client to make a decision without the benefit of the lawyer giving the client a proper steer.

What is it like acting for such high-profile clients – does this bring added pressures?

Yes, this does bring added pressures. Failure is more public for both the client and the lawyer. Media harassment of the client can produce urgent need for advice with thinking time reduced or non-existent.

It often brings the added logistical problems of needing to enter buildings with the client through backdoors, underground entrances or covered in blankets in the back of vehicles!

What has been the highlight of your career?

Developing my reputation in football and in particular working with the Premier League and its member clubs since 1996, leading to them appointing me chairman in 2014.

As far as individual cases are concerned, two stick in the mind. In 1992 Leeds United lost in the European Cup to Vfb Stuttgart but it was found that Stuttgart may have fielded an ineligible player. Equally, they complained that Leeds United had done the same. I appeared before a UEFA Disciplinary Tribunal and we succeeded. The tribunal awarded a third game to decide the tie and a few days later in Barcelona’s Nou Camp Stadium, Leeds were victorious and went through to the next round. On our return to Leeds/Bradford Airport, the entire team applauded me off the aircraft. A second memory was representing the legendary racehorse trainer Jenny Pitman at the Jockey Club when she was accused of entering a ‘spoiling horse’ in the Cheltenham Gold Cup. Again, we were successful (I tend to forget any failures!) and we were besieged by over 50 journalists on our way out of the building. Jenny is a tough and resourceful woman who calls a spade a shovel. We had the odd fiery moment but we are lasting friends.

You happen to be a Leeds United supporter. As the club is a client of yours, does that bring any extra dynamics or pressures?

As a Leeds United supporter from childhood and a former director of the club in the early 1990s, when we won the league title, there is always an extra dynamic or pressure when acting for the club because you want to win both on the pitch and off. Nonetheless, it is imperative that you act as an objective lawyer and not as a fan in a suit.

Was there a sports-related case you were not involved in that you wish you had been?

Kathryn, my wife and business colleague, gave me some advice at an early stage in our relationship which has stayed with me forever – never envy anyone. Following that policy, there is not a case that I wish I had been involved in but was not.

What advice would you give to those just starting out in sports law?

Do not be starry-eyed or a groupie. Learn the basics of legal practice and then apply them to sport. Acquire that skillset before narrowing your career.

Work hard and be prepared for some unsocial hours. Sports clients are demanding and football, in particular, is a very immediate business. Clients want answers and they want them now.

Talent retention is critical and unity is strength

Terence Tung photo

How would you describe your firm’s culture and how important is it to you? Is it different in Asia from the home base in Chicago?

Mayer Brown has a strong one-firm culture that enables us to be seamless in serving our clients. This is possible because we operate as a global partnership, rather than in a siloed or Swiss Verein structure.

We have a common set of values, which promotes collaboration and encourages our lawyers to be responsive to our clients. Our clients appreciate our integrated culture because they have access to the best knowledge and service from our lawyers, no matter where they are.

Since becoming senior partner what’s surprised you most about running a firm?

Having played the role of senior partner for almost three years, I am pleasantly surprised by the contribution of our support departments to the success of the firm. These include business development, marketing and communications, finance and accounts, information technology, knowledge management, legal risk and compliance, pricing strategy, and legal project management.

We have many talented colleagues overseeing these functions allowing our lawyers to focus on client service, which is our firm’s top priority.

How has your role in client
facing-work changed since becoming senior partner?

I believe that practice and management are in fact complementary with each other. Maintaining an active practice enables me to learn about the practical challenges faced by all of us. Performing the role of senior partner offers me the opportunity to overcome these challenges collectively with my partners.

What’s the main change you’ve made in the firm across Asia that will benefit clients?

When I took on the leadership of Mayer Brown in Asia three years ago, integration was my top priority. I sought to integrate
our Asia offices with other offices in three areas: our people, our practices, and our systems.

Our success as an Asia powerhouse and now, as a distinctively global law firm following the combination of Johnson Stokes & Masters with Mayer Brown ten years ago, is the direct result of this integration exercise. This has enhanced cross selling and efficiency. We pride ourselves with our brand – one that will allow us to speak in one voice and tell one story.

Aligning our expertise with the needs of clients globally requires lateral hiring. Accordingly, we have made a significant number of strategic appointments to strengthen our capabilities
in Asia.

What are the biggest challenges facing firms in Asia?

There have been several changes in the legal landscape in the past ten years. Increased competition from within and outside the legal industry is a major change and challenge.

Within the legal industry, Mainland Chinese law firms have been expanding into Hong Kong, and accounting firms have also been setting up their legal arms.
Outside of the legal industry, alternative service providers (ALT) are expanding in Asia. Some law firms have even joined the bandwagon by launching their own ALT arms.

What is the firm’s strategy in Asia? Do you have plans for expansion and where are you seeing growth?

Backed by a well-established Hong Kong practice in a mature market, we always listen to our clients and understand their businesses. As our clients themselves are globalising, they require global offerings.
To align our products, we make strategic hires and reinforce our position as a distinctively global law firm beyond a regional powerhouse. As part of Asia’s role in helping the firm achieve its overall goal of being a top ten international business law firms in the world, we leverage the capabilities of our Asia practices to the benefit of our global platform.

By way of example, we opened our Tokyo office last year after due consideration of our clients’ needs, the alignment of our products and the availability of talents in the market. We do not simply view the financial performance of our offices in Asia (Hong Kong, Beijing, Shanghai, Singapore, Bangkok, Hanoi, Ho Chi Minh City, and Tokyo) on a siloed basis; instead, we focus on how we can best serve our clients.

As international counsel, we serve clients all over the region, including in frontier markets such as Myanmar and Mongolia and we do not restrict our service coverage merely to office locations.

What do you think are the top three things clients want and why?

Clients expect their outside counsel to adopt extremely high and uncompromising standards in their problem-solving skills. When selecting outside counsel, clients will also bear cost efficiency in mind. Accordingly, we offer seamless service to our clients in a cost-effective manner.

Global clients also want to work with a law firm that has a global platform with extensive reach across continents. As the only integrated law firm globally with approximately 200 lawyers in each of the world’s three largest financial centres – New York, London and Hong Kong – we are well-positioned to offer global
solutions.

In an increasingly demanding world, our clients are insisting on fast and efficient service. Due to our global platform, Mayer Brown is able to service our clients 24 hours a day, every day of the year.

Is technology changing the way you interact with your clients, and the services you can provide them?

Without question, a top priority of Mayer Brown is to leverage technology to enhance client service. Today, the use of artificial intelligence (AI) is a critical area in
which we must be at the technical
forefront.

For example, we are deploying matter management tools which provide
monitoring systems for project management. We are using sophisticated software
for document management and
e-discovery.

Finally, we are evaluating AI tools which have the capability to rapidly identify
anti-assignment, change of control, and other key clauses in large scale due diligence work. Having integrated systems enhances efficiencies flowing from a centralised function.

What does innovation mean to you and how can firms and individual lawyers be better at providing it?

Innovation is providing out-of-the box solutions to our clients. One standout example in Asia is the landmark restructuring solution we provided to Z-Obee.

With no Chapter 11-style legislation in Hong Kong and the inability to appoint provisional liquidators solely for restructuring purposes, our unprecedented solution enabled the appointment of provisional liquidators in Bermuda to allow them to seek recognition and assistance from the Hong Kong Court under common law. No other firm had addressed the issue through common law before, and for this our firm was widely praised.

Our firm has been recognised several times as one of the most innovative law firms in Asia, North America and Europe by Financial Times, not only for client-related work but also for our pro bono programmes.

Our lawyers are inherently innovative. We are fortunate to have developed a collaborative culture through teamwork that sparks and nurtures innovation. In our case, the drive to deliver extremely high and uncompromising standards of work to our clients, complemented by the constant exchange of ideas and new perspectives, are important factors in our innovative solutions for clients.

Tell us about your commitment to pro bono – why is it important to you and why should firms give back to their local communities?

We believe we have a responsibility to give back to the community and to help the disadvantaged. Our lawyers possess unique skills that allow them to serve our community. We have recently stepped up our pro bono programmes in Asia by hiring a US-qualified public interest lawyer dedicated to assist our pro bono work.

The move has sparked additional internal interest in providing pro bono legal services and created a positive impact for both our pro bono clients and our lawyers. Towards the end of last year, we launched in Asia the ‘Got 20’ initiative encouraging our lawyers to voluntarily devote 20 hours to pro bono work that can be counted towards billable hours when assessing performance.

We also collaborate with our clients on pro bono projects. For example, we partner with a local organisation, Christian Action, on an initiative to provide pro bono legal assistance to recognised refugees (also known as substantiated refugees) in Hong Kong who are waiting for resettlement overseas.

In addition, we have embarked on a large-scale project with the Hong Kong Council of Social Services’ (HKCSS) NGO Corporate Governance Platform. Through this opportunity, we assisted with developing a model corporate governance manual for HKCSS’s members alongside our corporate client. This manual provides many NGOs with a practical toolkit, helping them better understand the corporate governance requirements.

What have you found the best way to retain talent?

At the partner level, our global partnership structure and traditional culture is a key reason for partners to remain with the firm. New joiners are amazed at our integrated and collaborative culture. Lawyers work collaboratively as teams, which impresses clients because we are able to pull resources from many areas.

At the associate level, it is important we provide our junior lawyers with meaningful and successful careers. We need to be transparent in our process and adaptable to the needs of young millennials, many of whom will become the pillars of the firm.
We also develop and have been proactive in providing policies around diversity
and inclusion and pro bono work, demonstrating to our younger lawyers our commitment to core values. Through the sophisticated and cutting-edge work we do, we provide a stimulating and exciting environment in which our lawyers at all levels can thrive and improve.

What are the firm’s policies on diversity and inclusion?

Achieving a diverse and inclusive work force is critical at Mayer Brown. We are committed to recruit, develop, and promote the highest calibre lawyers regardless of race, religion, ethnicity, gender, or sexual orientation.

The firm has established three committees in Asia under the umbrella of diversity and inclusion: the Pride and Ally Network, Family Network, and Women’s Network (branded as Retain and Advance Women). These three networks regularly organise talks and activities to promote diversity at all levels of the firm.

Due to its innovation and excellence, the Asian arm of Mayer Brown’s diversity and inclusion initiative has recently been nominated for a number of awards.

What advice can you give the next generation of partners looking to rise the ranks?

History always repeats itself provided circumstances remain the same.
What hasn’t changed today is the need to build and strengthen client relationships.

Working collectively to better serve our clients is baked into our culture as a firm. If we can adapt to the advent of new technologies, the challenge of new competitors and the constant drive for innovation, we will evolve. Talent retention is critical and unity is strength!

Tell your people where they stand

How do you define your firm’s culture and how important is that culture to you?

We have a very collaborative, supportive, family-based culture in the firm. I am not saying this because I am the managing partner, but it has been described as such by outsiders who have observed us and it is a culture that I am very proud of and invest in maintaining.

As managing partner, what’s the main change you’ve made that has benefitted clients?

We have streamlined many of the supporting processes and roles in order to (i) deliver on the strategic plan and (ii) provide the best support to the staff to allow them to provide exceptional service to the client.

How do you split your time between fee earning and management?

This is difficult especially as I have an open door management policy. I have tried many different methods – e.g. specific days or times for client work and others for management issues.

I find doing client work very early in the morning, which often means from home and before I get to the office, works best and I have excellent support from secretaries, paralegals, and associates.

What are the biggest challenges facing BVI firms and how are you tackling them?

The biggest challenges are the external threats to the industry such as the possibility of EU blacklisting which we are in the middle of dealing with.

We tackle such threats by working very closely with the government on legislation and policies to address such threats and by advising clients in a very clear and precise way on how to handle such threats.

With the recent establishment of a New York office, the firm is one of the few offshore firms to make this step into the US. What advantages has this move given you?

The New York office puts us blocks away from many of our key clients. We are in a position to meet and work with them at their convenience and to seek opportunities that we may not have found had we not been on the ground.

What do you think are the top three things most clients want and why?

Responsiveness; clear, concise advice; and the ability to think outside the box.

What do you think lawyers generally could be better at?

Mentoring and passing knowledge from one level to another. The best knowledge management systems cannot capture all aspects of the practice. A lot of this information and understanding is simply known by the attorney and can only be passed on with mentoring and training.

What have you found is the best way to retain talent – both at partner and associate levels?

Giving them a clear understanding of the mission and vision of the firm and their role in the bigger picture. Information and the sense of knowing where you stand, your purpose, and contribution goes a far way in retaining talent.

How do we get more women into leadership roles in firms?

By women being mentors to other women. Guidance on legal and non legal soft skills from those who are established and viewed as role models is essential in creating new leaders.

What advice would you give to those, particularly women, just starting out in law?

Listen, learn, be focused, and don’t be afraid to ask questions as learning the practice of law has just begun.

Law is still a people’s business

Legal tech is probably the most eminent buzz word in the legal community these days. It has become a recurring conference topic and, in some areas of the legal advisory industry, tech tools have indeed long been integrated in the process. In essence, they are relied upon to increase efficiency, most notably where large volumes of documents and data are concerned.

In other areas of the legal advisory industry, notably dispute resolution, the relevance of legal tech is not nearly as notable. While some cases are undoubtedly ‘heavy on the facts’ and document production, originally a procedural feature of common law jurisdictions, has found its way into the best practice repertoire of international commercial arbitration regardless of legal tradition, recourse to technical solutions to advance the processing of the information involved has nevertheless been a geographically isolated occurrence.

Even though we have seen the emergence of legal chatbots and online dispute resolution services in certain areas such as consumer-related disputes, the use of online dispute resolution services is still marginal when it comes to high-value, high-stakes, multi-jurisdictional commercial disputes. Many of these cases are still conducted in good old-fashioned style, with document sharing platforms and digital submissions being the most innovative features one will see.

More often than not – in the words of a senior international arbitrator – we still ‘sacrifice Patagonian forests’ for the production of hearing bundles that are lightheartedly discarded after the event. At least in this respect, it is quite difficult to detect a race towards digitalisation in the field of dispute resolution, even at an international level.

Against this background, what is indeed the relevance of legal tech in this field? And, from a clients’ perspective, does recourse by counsel to technological tools automatically equate to effective, i.e. time and cost efficient, dispute resolution?

There are, of course, successful examples of how technology has been put to a fruitful use in a dispute resolution context. In construction disputes, virtual reality devices allow counsel to take judges/arbitrators ‘inside’ distressed projects, thus making them come to life and adding ‘tangibility’ to the legal issues at hand.

Also in the construction context, building information modeling (BIM) is one of the latest technological tools that offer new possibilities in conflict and dispute resolution systems. Here, technology is used to create algorithmic decision-making frameworks to manage and resolve potential conflict causes such as failures to correctly bid or price the works, inadequate management by contractors, supervision and coordination issues, and errors/omissions in design, in terms of time, cost, quality, and documentation.

In a much broader context, computerised decision tree analysis is available to support legal professionals in early case assessment, in particular when it comes to identifying zones of possible agreement and determining the cost implications of non-settlement.

“The more complex the matter in dispute, the more [clients] want a sophisticated professional and experienced partner”

Still, examples such as these are rare and, in the end, the legal profession remains very much a people’s business. Indeed, the ‘automation risk’ in dispute resolution seems rather low. According to the website willrobotstakemyjob.com, the automation risk for lawyers is only 4% while it ranges at an insignificantly higher 6% for more specialised legal professionals such as arbitrators, mediators, and conciliators. This means legal professionals are, in the words of the website, ‘totally safe’ when it comes to robot replaceability.

Thus, leaving aside automated solutions that serve to increase efficiency in day-to-day procedures, users of dispute resolution services and, in particular, their decision-making seem not to be driven by technology. The more complex the matter in dispute, the more they want – and request – a sophisticated professional and experienced partner.

In this sense, innovation in the field of dispute resolution seems to be less about integrating technological tools but rather about the way in which critical facts are qualitatively gathered and analysed, attainable goals are identified, and a successful strategy is developed to reach and secure the desired outcome. This, in essence, requires one thing: a departure from linear approaches in favour of multi-strand strategies that integrate expertise drawn from various professional areas – legal, commercial, and communicational.

Today’s dispute resolution professionals are increasingly assuming the role of ‘conflict managers’ who work hand in hand with their clients. The traditionally typical dynamics of the dispute resolution trade – positional, adversarial, antagonistic – are being left behind as dispute resolution professionals turn to multi-layer lawyering as the new counselling model. Where litigation, arbitration, and mediation once stood as separate pillars of a service portfolio, inclusive, integrated approaches have become the expected best practice standard. Sophisticated users of dispute resolution services deliberately opt for this kind of legal advisory work.

At Vavrovsky Heine Marth we strive to secure our clients’ success not only by excelling on the substantive legal issues but also by developing a comprehensive understanding of the professional context within which our clients operate. We place great emphasis on analysing commercial settings, business needs, and interpersonal factors as we understand that these are key considerations in the search for positive ‘win-win’ outcomes.

As such, we thrive on out-of-the-box thinking and openly promote flexible dispute resolution processes that strategically combine elements of various established methods of dispute resolution. Our clients’ trust keeps proving us right. They identify with our philosophy and rely on our expertise to guide them to success in any dispute, at any stage and in any forum.

#MeToo and law firm reputation – the PR response

In its first year, the #MeToo movement has had a profound impact on almost every industry, including the legal sector, shining a much-needed light on how we deal with sexual harassment in the workplace and in wider society.

The days of quietly brushing sexual harassment under the carpet are gone and the media continues to be relentless in exposing the full extent of #MeToo. More people are coming forward and the movement has become a force for positive change.

In an environment of heightened awareness, how should law firms manage their reputations in response to #MeToo? In addressing this question, it is important to ask how law firms wish to position their firms in relation to #MeToo as part of their broader brand and cultural story. Second, firms need to consider the practical steps in planning for, and responding to, a #MeToo allegation or investigation.

Cultural considerations

Law firms today spend a considerable amount of their marketing budgets on refining their brands by telling the market who they are and what they stand for. Ultimately, building a compelling brand story should reflect an organisation’s values and culture in a true and meaningful way. And those values and cultures should evolve and develop in line with the cultural and behavioural changes taking place in wider society.

Movements such as #MeToo present a positive opportunity for law firms to look at their cultures and to test whether they are in line with how they portray their brands to the outside world, today. For example, if a law firm says it values developing its lawyers in a safe, supportive, and collegiate environment, is this reflected in its workplace anti-harassment policies? Moreover, are those policies communicated widely internally, with the support of senior management, so that people feel safe and protected in coming forward with complaints?

Firms can take a positive stance in communicating how they are adapting their cultures in response to #MeToo and other movements. Take Deloitte as a shining example of this. Last year, at the height of when #MeToo was in the news, Deloitte’s chief executive confirmed the accounting giant had fired about 20 UK partners over the past four years for inappropriate behaviour, including bullying and sexual harassment, and that the firm would adopt a zero tolerance approach to such behaviour in the future.

Preparation is key

When it comes to responding to a #MeToo allegation or investigation or allegation, preparation is key. A #MeToo complaint and investigation should be planned and rehearsed for in the same way that law firms plan for and respond to other crises, such as cyber-attacks.

Firms should examine carefully historic incidents of sexual and other harassment. Where non-disclosure agreements have been entered into, they should be looked at in light of the latest SRA guidance.

Where an allegation has been made and is being investigated, communications materials need to be prepared, ready to be disseminated at the appropriate time and bearing in mind that while an investigation is underway, those details should remain confidential – as far as this is possible.

A map of all the relevant stakeholders – including the victim and accused, staff, clients, the media, and the regulator should be drawn-up – with communications considered and prepared for each audience.

Scenarios should be played out for how the issue could develop over a defined time period. For example, how will the firm deal with a leak to the media, or respond to an investigation from the SRA? What happens in the event of a complaint to the police or if the victim begins to air their grievance anonymously on social media, with it clearly pointing back to the firm?

Careful and considered responses to these scenarios can be prepared and firms should involve their in-house PR teams as early as a possible in the planning phase, calling in external crisis PR experts where necessary.

A final word on the accused and victim involved in a #MeToo allegation. While an allegation is being investigated, firms must avoid being pressured into giving a knee-jerk reaction to a media inquiry or to interested parties.

A #MeToo allegation can have a devastating impact on both the victim and the accused, which is why detailed planning and building a suite of communications materials is so important. While the media continues to play an important role in bringing #MeToo and other important injustices into the public sphere, we should also remember that trial by media is a dangerous thing.

#MeToo is causing society to say ‘no’ to behaviours that may have been tolerated just a few years ago, including in the workplace. Law firms will continue to be judged on how they respond to these changes and their cultures will need to continue to adapt and evolve, in order for their reputations to be preserved.

A moment to make real change

Speaking to employment law specialists in Sweden during the 2019 EMEA research, one thing struck me as particularly interesting: all noted a ‘wave’ or ‘explosion’ of discrimination and harassment lawsuits, as well as numerous large internal investigations, at the beginning of 2018 just as the #MeToo movement was getting into its stride. However, by the autumn, that same work stream had slowed significantly.

I was intrigued; the hashtag was still ubiquitous in newspapers and social media outlets so I asked US editor Seth Singh Jennings if I could cover parts of the labour and employment section of the 2019 US guide as I could not imagine #MeToo’s country of origin already being done with the movement. It quickly became apparent that this was far from the case.

For those who might have been living under a rock these past 18 months: in October 2017, allegations of multiple incidents of rape, sexual assault, and abuse against Hollywood producer Harvey Weinstein were made public. American actress Alyssa Milano use of #MeToo in a tweet is largely credited with sending the movement viral. According to The Guardian, the hashtag was tweeted more than 1 million times worldwide within days, while CBS News reported Facebook had more than 12 million posts, comments, and reactions in less than 24 hours.

Now more than a year on, the question is what impact the movement has had for the US’s employment lawyers and their clients? In 2017, the Equal Employment Opportunity Commission (EEOC) received 12,428 reports alleging sex-based harassment; this number rose to 13,055 in 2018, the highest in eight years. While this might not seem a dramatic increase, keep in mind these figures do not include charges filed with state or local fair employment practices agencies. Furthermore, it is crucial to note that the figures for charges alleging sexual harassment saw a $10m rise in ‘monetary benefits’, excluding ones obtained during litigation, which shows this is now a high stakes arena for corporates.

However, it is not only the money that has the potential to hurt companies; the damage to reputation is also of particular worry to international businesses. While allegations used to be settled quietly, a May 2018 Forbes article stated that in the last year almost 300 high-profile executives have been subsequently also let go following claims of sexual harassment. Chai R. Feldblum, who served as a commissioner for the EEOC under the Obama administration and recently joined Morgan, Lewis & Bockius’ Washington DC office, notes: ‘The media and societal support for those people sharing their stories has gotten the world to pay attention to the need to change working environments to create a safe and inclusive place for all.’

On the legislative side, this change happened slowly but then all at once. While the moderate expectations of the Trump administration turned out be accurate – with not much legal development on a federal level as well as the EEOC having four vacant spots – state and city legislatures have stepped up to the plate. California and New York, often considered the leaders on new employment initiatives, made sexual harassment prevention training a mandatory obligation for employers.

In addition, following initiatives from Microsoft, Uber, and Lyft, bills have been passed prohibiting private arbitration of sexual harassment claims or notes aiming to outlaw confidentiality provisions in settlement agreements addressing sexual harassment claims. Of course, there are still states which have yet to read the memo, but national employers often apply the laws of the strictest jurisdiction in which they operate in order to be compliant on a national level.

As all these developments happened in a fairly short time frame, the fallout from #MeToo posed new challenges not only for employers but also their legal counsels. According to experts, transparency, flexibility, and proactivity are key.

‘I see a renewed focus on behalf of enlightened employers to listen to employees, revamp policies, develop training, and try new approaches to engagement,’ says Lisa Damon, immediate past chair of Seyfarth Shaw’s labour and employment team. ‘Transparency from management has become more important and many seem interested in lasting change.

‘Employees who had not found their voices before #MeToo are now starting to feel more comfortable raising issues in a way that can be productive if employers are open to considering new ways of managing, leading, engaging, and listening to employees.’

And as Feldblum explains, what would once have been kept strictly confidential is now open to public examination: ‘The techniques used to achieve a safe, respectful, and inclusive workplace vary in each instance. We learn from senior leadership what policies they currently have in place; we do a workplace culture assessment using a range of techniques; and we develop and help implement a strategic plan that includes ideas for leadership, accountability, policies, procedures, and training.

‘We have found that many employers want to publicly share what we find and the changes they make, so work that previously would have been kept confidential by a client is now being made public to increase trust and transparency.’

Although the #MeToo phenomena began in the entertainment and media industry, it has since spread to practically every other industry and profession. Small, local companies and start-ups, which often don’t have the resources for an extensive and experienced HR department, seem likely to be the next battleground. Indeed, Feldblum believes ‘no industry or company is completely immune to workplace harassment so we’re seeing demand from proactive leaders across the board’.

‘We are seeing #MeToo issues across all industries on a regular basis,’ adds Damon. ‘As we look forward, however, we are anticipating more demand from several specific industries. Healthcare has seen a fair amount of activity recently as medical providers are reading and hearing more about #MeToo. Additionally, we are seeing more claims from the tech industry and manufacturing.’

As most social issues do, the movement has divided opinion, both along gender and political lines, as was demonstrated during Justice Kavanaugh’s Supreme Court nomination hearing. Several studies (NPR; Pew Research Center) show a great difference between democratic and republican views on how sexual assault allegations in the workplace should be treated, with only a small number of the latter seeing a lack of punishment for perpetrators and victims not being believed a major problem.

These issues, however, must be overridden by objective and proactive leaders, as Feldblum notes: ‘Our expectation is that there will be a significant interest from companies and organisations which want to get ahead of the curve during this moment of #MeToo, which is far from over. We believe this is the moment to help employers create workplaces that are safe, respectful, and inclusive. This is the moment to make real change.’

Remediating, mitigating, and managing a crisis

An issue for businesses that has skyrocketed in importance in recent years is sexual abuse in the workplace, which of course is largely due to the success of the #MeToo movement.

The origins of ‘Me Too’ in the context of sexual harassment and assault stretches back to 2006, but the movement, as we now understand it, was sparked to life on social media following the October 2017 viral tweet by actress and activist Alyssa Milano.

The point of the tweet was to bring attention to the scale of the problem by demonstrating just how many women have their own stories of sexual harassment or assault. As we now know, this fairly modest call to action via Twitter could hardly have been more effective. Brought to life by the many vivid and personal accounts – including those of numerous high-profile actors and media personalities – the campaign has dragged the issue firmly into the public discourse.

One of the overriding themes of these personal stories has been how, in many cases, these incidents of misconduct have been enabled by workplace culture and a lack of proper safeguarding. This, rightly, has put businesses in the spotlight too.

Given the reputational damage such allegations can bring, there is now a
huge amount at stake for owners, managers, and directors if they fail to
take the issue seriously and put measures in place to protect their staff.

It’s in this context we spoke with Lauren Casazza and Kim Nemirow. Casazza, a litigation partner in Kirkland’s New York office, heads up the crisis response practice group at Kirkland & Ellis, counselling clients on internal and external communications in high-profile litigation, investigations and crisis situations.

Nemirow, a partner in the government and internal investigations team in Chicago, has a broad range of experience advising clients on government investigations, internal investigations, and compliance matters, and has particular expertise handling highly sensitive workplace misconduct and compliance matters.

How did this team come together?

At Kirkland, we are always trying to find ways to leverage our diverse expertise in ways to support our clients’ needs. Our collaboration was driven by the growing demand from our clients for assistance in all aspects of the #MeToo movement, whether it is installing a best practices workplace compliance programme, investigating thorny allegations against senior executives, or helping manage and communicate about emerging crises in this space.

How big an impact has the movement had on the business world?

It’s been significant. Frankly, this is front and centre for every company. The companies that have battled media attention on these issues are clearly focused on remediating, mitigating, and managing what typically has been a huge reputational hit.

But, more systemically, every company in the world is trying or should be trying to find ways to make sure they can avoid having issues in the first place and/or mismanaging allegations as they emerge.

Even investors should be considering how potential reputational and legal risks around #MeToo – which are very difficult to quantify – impact potential deals and investment value.

In what specifics ways have corporations been impacted?

What we’re seeing is that companies are being more proactive from a compliance and investigations perspective than they were even two years ago.

Companies are hyper-aware that mere allegations lodged publicly, particularly against senior executives or a company’s overall culture, can
create a corporate crisis within minutes, and we are helping our clients with key steps to prevent, deter, and detect these issues so that they can be in the best position legally and reputationally when, and
if, an unpredicted crisis occurs.

What are the key points you convey to your clients?

We convey that risks surrounding the #MeToo movement must be taken seriously, and that thoughtful, proactive compliance and crisis strategies not only help a company manage through a crisis, but can really serve to mitigate these unfortunate behaviours from occurring in the first place.

A key component of any strategy
should be focusing on whether the company maintains the right ‘tone at the top’, which is an essential foundation for a strong corporate culture.

What other advice would you give to lawyers who are talking to their clients about this topic?

We would tell them to advise their clients not to underestimate how quickly a #MeToo issue can become catastrophic for a company. Time and investment in proactive efforts to mitigate and manage these issues is well worth it, and in the long run companies and their hardworking employees will be better off for it.

#MeTooLaw: when firms do the right thing

It is a year since Paul Philip, chief executive of the Solicitors Regulation Authority (SRA), appeared before the Women & Equalities Select Committee to account for the legal sector’s record on addressing sexual harassment at work. That somewhat testing experience for Mr Philip at the hands of MPs, led to an immediate sharpening of the SRA’s focus on how law firms respond to allegations of sexual harassment within their own businesses, as well as within those of their clients.

Up to that point, very few law
firm employees would have felt empowered to speak up about the sexual harassment they experienced, fearing they would not be believed and would face retaliation, potentially jeopardising their careers.

Even fewer would intervene or raise concerns about any sexual harassment they observed; some unsure about the dynamics of the scene playing out in front of them, others perhaps assuming it was just not their responsibility to deal with it.

Law firm HR professionals were frequently in the unenviable position of being told about an incident but being sworn to secrecy (and inaction) by the victim, who would threaten to resign and deny all knowledge. Consequently, many firms were oblivious to sexual harassment problems in their businesses, or where they were aware of particular instances, they had little legal or commercial incentive to address the issue in a truly meaningful or systematic way.

That has now all changed. The constant press attention following Weinstein and the Presidents’ Club, and the ceaseless efforts of the legal press to persuade sexual harassment victims in law firms to come forward with their stories, mean firms are far more aware of the reputational damage of mishandling sexual harassment allegations.

The stakes are raised even further by the new SRA enforcement strategy which (finally) puts sexual misconduct at a high level of seriousness, treating it on a par with other forms of serious misconduct, such as taking unfair advantage of clients, misuse of client money, dishonesty, and other criminal behaviour.

The SRA recently stated that it is investigating over 50 active cases of sexual misconduct in firms and has estimated it would be sending around 25 cases of sexual misconduct to the Solicitors Disciplinary Tribunal.

Assessing risk

Most firms have acted quickly to #MeTooLaw and have responded by updating their sexual harassment policy and complaints procedures. They have implemented firmwide information campaigns and tailored HR, partner and staff training to ensure that all understand the types of behaviour that can be regarded as sexual harassment, the consequences of engaging in such behaviours, and how the firm will normally respond.

They are putting in place rigorous controls to ensure anyone who raises a complaint about sexual harassment will not be victimised in any way.
Bystanders are being trained to call out and intervene to stop unacceptable behaviours, to distract and divert the alleged harasser from the behaviour where necessary, and to understand their responsibility to report incidents to ensure the burden is not placed on the victim to deal with the problem.

Some firms are undertaking specific risk assessments to identify and address common situations where sexual harassment is typically more likely to be alleged to have occurred – after work events, deal closing celebrations, and overseas conferences. Others are introducing policies to ensure that where a consensual relationship develops between a partner and a junior member of staff, the partner is not left in a position of power and influence over that person and their career.

A very small number have either banned or strictly controlled the use of alcohol during working hours or events, to remove one of the biggest factors in sexual harassment cases. Few have effectively addressed the long work hours culture in law firms that can be a significant contributory factor in these situations.

Questionable commentators

Many commentators say that things are different now: that behaviours which were regarded as minor and unproblematic until recently, are now deemed to be unlawful sexual harassment, potentially amounting to gross misconduct; they often find that troubling and confusing. This is questionable.

Historic cases of sexual harassment which are emerging, reveal that the complainant in those incidents always felt the conduct to which they were subjected at work, was unacceptable and unwanted; they just did not have either the language or the voice to be able to express that view safely, until now.

Firms are now investigating those current and historic allegations, instead of settling them out quietly and rehabilitating the partner with training. They are taking advice on the potential discrimination, partnership, regulatory, and criminal aspects of the allegations.
They are also becoming extremely mindful of ensuring due process and proper support for the alleged harasser, whose career, family life, mental health, and indeed liberty can be devastated by allegations of sexual harassment, whether or not they are well founded.

These situations often come down to one person’s word against another: it is important for both the victim and the alleged harasser to be heard, taken seriously, and supported throughout. Public shamings in the press make for good headlines and potentially mitigating PR for firms, but they also destroy lives, and are, in our view, rarely warranted, especially in cases with conflicting factual accounts.

And what of HR professionals in law firms? In the past they have not necessarily understood that they are personally subject to the SRA regulatory regime, including SRA notification requirements, despite
not being solicitors themselves.
But HR awareness on this issue is changing, so that HR professionals in law firms now feel fully empowered by the knowledge of the regulatory as well as the PR and criminal risks, to escalate sexual harassment concerns to senior management for effective action.

It is important for firms to recognise that what used to be seen as an HR issue, is now also a regulatory issue, so there needs to be open communications between law firm HR and GC teams, to ensure that matters that are reportable are actioned, and that prompt and effective steps are taken to address the immediate issue and ensure
long-term institutional change to eradicate sexual harassment at
work.