Posted on

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.

Posted on

#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.

Posted on

Breaking down barriers: client behaviour in the digital age

One thing is certain, there will always be a need for legal services. Less certain, however, is the way these services will be bought and sold moving into the future.

As recently as the last decade, the weakening of the traditional partnership model combined with the advent of legal technology has given rise to a new and disruptive breed of law firm. These innovative legal ‘companies’ offer services at competitive rates by using technology to cut working time, reducing the need for a lawyer. What has led to this sea change? Clients.

Clients have gained unforeseen leverage over service providers in recent years, and the market has been forced to change accordingly. But what shifts in client behaviour should you be aware of when marketing your law firm, and how do you challenge them?

Clients are less loyal

Much like every other service provider, law firms are at the behest of the client. Firms can’t rely on the lifelong client-lawyer relationships of the past, nor can they depend on reputation or word of mouth alone.

Those methods won’t work anymore, because in a market with an excess of choice, loyalty is fleeting. Why should someone choose your firm over another often similar and equally qualified firm?

It’s crucial then that your firm differentiates itself from its rivals by carving out a niche. By using digital marketing as its tool, your firm must prove to prospects that it is the authority in its area of expertise.

By producing useful and relevant content using proprietary research, your firm will become a thought leader. And data, as you may be aware, is now what drives business forward.

The method in which your firm quantifies and qualifies its data is what your clients want. Clients don’t buy services anymore, they buy information and expertise – so providing both will bring them back for more.

“As ever, it comes down to price. This means that
future-facing legal companies using artificial intelligence (AI) programmes already have the upper hand.”

Clients want cheaper alternatives

As ever, it comes down to price. This means that future-facing legal companies using artificial intelligence (AI) programmes already have the upper hand.

An AI-capable firm can shave off many hours of expensive billable legal work. This means no more long hours of lawyers sifting through documents or reading and writing contracts. Now, the smart software does this instead, in a fraction of the time and therefore at a fraction of the cost.

Remember JP Morgan’s tech that extracted 150 relevant attributes from 12,000 annual commercial credit agreements — an equivalent of 360,000 hours work by lawyers — in mere seconds?
If a tech-savvy firm can do the work faster (cheaper), then as a consequence that firm will win more and more clients. Bad news for those traditional law firms that aren’t yet planning to take on machine learning.

Clients are self-involved and
self-sufficient

The modern client is from a generation that has grown up with marketing — constantly and consistently told what to buy, and which brands to aspire to. This means the client of today is both inured to intrusive marketing and discerning about which brands and services they buy into.

These clients want to work with firms that are at the top of the market, which will show their bosses and colleagues that they are cutting edge.

Consequently, they don’t care about you or your firm, or what it has been doing, so self-serving puff pieces are out. They want content with hard data and information they can use to look good.

And, you’ll need to send it to them directly, because, in the digital age, no one is scouring the internet searching for your website content. They’ll find data-rich content themselves on Google, LinkedIn, even Facebook!

By showing clients how your firm’s data and technology can benefit them — faster service, better accuracy, cheaper rates — rather than simply telling them you have it, will cement it in the minds of the modern client. They can then decide for themselves how to use it.

Clients have rising expectations

Everyone expects more for less, and the same goes in the legal sector. Not only that, the service needs to be faster, always available, and, of course, it needs to be personal.

Alongside the increase in online business comes an increasing dependence on speed — of transaction, of assistance, and of response — that clients are accustomed to.

Some firms are finding success by being available at a moment’s notice, giving 24/7 access with social presence once reserved for the consumer market. Even being available on WhatsApp, or its equivalent will become the norm going forward because the client will demand that level of personal, one-on-one service.

For better or worse, these changes in client behaviour have already changed the legal sector. The certainties and confidence that law firms once had that their sector would not be challenged have proven unfounded. And for future law firms and their lawyers, the onus for satisfying the client’s requests will continue to lie with them, and that how services are delivered rather than service itself, will become the focus.

Posted on

On the shoulders of giants

It is both a proud and humbling moment to be selected for appointment to silk after a rigorous selection process. But it is especially so for a woman in the centenary anniversary year of the Sex Disqualification (Removal) Act 1919, the legislation that removed the bar on women joining the profession. The 100 years since then has changed women’s place in the legal profession out of all recognition and I am acutely conscious that I merely stand on the shoulders of all the women in law who have gone before me, principally so those who forged a path in more difficult times in the past.

But inequality remains, particularly at the Bar. Both retention of and progression
of women remain at worryingly low levels. The gender split on entry to the Bar is about equal, and then begins to fall off a cliff at the five-ten year mark. At the last count, a mere 15% of silks were women.

Being a barrister is a tough profession for anyone. It is difficult, if not nigh impossible, to practice part-time and it is challenging to combine with childcare or indeed any healthy work-life balance. All barristers are used to devoting evenings and weekends to work on top of the usual working week. If, like me, a barrister is essentially a trial advocate, that means being in court week in, week out and all over the country, often with little prior notice. Only a very understanding and flexible partner or full-time nanny can cope with that. It is a sad fact that all of my female pupils have eventually left the Bar, most becoming solicitors where flexible working, part-time working, and working from home is encouraged and embraced.

There remains too, in some areas of work, a gender clerking bias. Women barristers can find themselves channelled into more ‘female’ work, often against their will and at a stage in their career when they are too junior to complain. Women solicitors in more ‘masculine’ disciplines have told me that they are not offered enough women barristers by the clerks.

I am very much hoping to use my appointment as an inspiration for other women. I myself have been inspired by women at the Bar. The two best cross-examinations that I have ever seen were conducted by women silks – Nicola Davies QC and Wendy Joseph QC, both now judges. They were masterclasses in how to calmly, carefully, politely but relentlessly devastate witness evidence.

Women cannot aspire to something they cannot see. It is impossible, in my view, for a woman to model herself on a male barrister. More junior women barristers need to be able to see other women stick at the Bar and progress.

I had been told for a number of years by a variety of people, including judges and fellow barristers, that I should be in silk already. But I did not believe it myself. I have come to realise that an outward confidence, particularly when advancing my clients’ cases belied my inward lack of self-belief and that is common to women at the Bar. We leave it too long to apply or never apply at all.

A year ago, I did a complete volte face and applied. There were two main reasons for doing so. First, four women I know took silk last year. I knew them from different fori – pupillage, same practice, charity work, and being in the same chambers. At last there were women close to me, who I knew personally and I could see myself joining them. One of them went out of her way and implored me to apply, giving me invaluable advice about the application process – a process that seems arcane and terrifying if one has never attempted it before.

Second, having done informal mentoring for years, I knew I had to ‘step up to the plate’ and at least apply – for how could I encourage women to remain at the Bar and progress without having tried to take that ultimate step myself?

My overriding feeling on being told of my appointment was one of relief. That has rapidly turned to one of happiness and pride. The application process itself made me feel entirely differently about myself because, perhaps oddly, it gave me self-belief. I have been told by other QCs that it is an entirely new career and I look forward to embracing that going forward. However, more importantly to me is the hope that I will inspire other women who will come after me.

I have already been told by some more junior women barristers, both in Outer Temple Chambers and those I know from other sets, that my appointment has made a difference to them and how important it is to see someone you know staying at the Bar, negotiating all the difficulties and challenges us women face, and finally making it to silk.

Posted on

Top tips for taking silk

Applying for silk is a big step. It’s expensive, it’s stressful, it’s time consuming and yet, every year hundreds of barristers and solicitors put themselves through the tortuous process. If you are considering applying, then this article is written to give you a few things to consider before you send off that cheque for £3,000.

Timing is everything

When do you apply? The form requires you to list 12 significant cases from the last two years. However, that does not mean you should be looking back at your practice and applying when you feel you have got two years’ worth of good cases under your belt.

Ideally you should review your practice the year before applying for silk and ask yourself, over the last 12 months, have I had six or seven serious cases? For the definition of a serious case, the QC Appointments (QCA) website offers guidance.

If you feel you have had a solid year, then look to your diary for the next 12 months – are you likely to continue in the same vein? If so, then download the current application form and start practising filling it in.

In 2014, I considered that the cases I had had and the ones coming up were sufficiently heavyweight that they would support an application. That meant in March 2015, I downloaded that year’s form, applying in March 2016, by which time I had the 12 cases.

The selection process is lengthy – I was interviewed in October 2016, with the results announced in January 2017. It meant I had the process hanging over me for more than two years, and you have to consider whether you can deal with the pressure for that length of time.

A STAR form

The form itself is competency based, and the panel does not want to simply hear ‘I am an excellent advocate’. They require specific examples. Use the STAR acronym: Situation, Task, Activity, Result.

Situation – In one line, what was the case and what was the difficulty?

Example: I prosecuted a rape trial whereby the complainant was a four-year-old girl.

Task – What did you have to do?

Example: I had to ensure that the witness was at ease and able to give her evidence in a manner that enabled her to be understood.

Activity – How did you go about that task? This is the part which requires the most detail.

Example: I attended the Vulnerable Witness Training course and studied the Advocate’s Gateway, so that I knew to ask short, direct, non-leading questions. I met the witness beforehand to introduce myself and talked to her about her favourite book/TV programme, to put her at ease. In court, I asked the judge to limit questioning so she would not become tired or distressed. I wrote my questions out in advance to ensure they complied with the requirements of the Intermediary. I was able to put my case in ten questions.

Result – What was the outcome?

Example: the witness did not have to give evidence for long, she was at ease throughout her evidence and we achieved a conviction.

You will have to give several examples like this, for every competency. Download the form and read the guidance, as it will tell you what the panel wants.

In the year between downloading the form and applying, continually review your cases to see which competencies you have evidence of. This will prove a useful exercise when it comes to the interview, because the panel will be looking for further evidence of competencies other than those on the form.

Remember your references

The reference criteria changes year to year, but you will need to take your referees from the 12 cases on your form. You can nominate specific judges, therefore consider which ones will take the time to think about your form and fill it in fully – the more detail the better.

The interview

If you get an interview it means the panel believe you have the potential to be appointed. Buy yourself a new shirt or suit – you want to feel smart when you walk into the room.

Review your form, think about the competencies you have given, be prepared to expand upon them, and review your cases from the last two years so that you have at least two examples for every competency they are testing.

The interview is relatively friendly. Stick to the same STAR rubric you used for your form – they want evidence of your competencies,
not simply anecdotes and assurances.

One area many people struggle with is the equality and diversity competency. Consider cases where you have dealt with someone with a disability, or where someone’s sexuality has been an issue. Consider any volunteer work you have done, perhaps work encouraging
teenagers from disadvantaged backgrounds to come to the Bar. The panel wants you to show that you approach each case with the same professionalism, and that you can make adjustments if a person has particular needs.

The interview lasts about 40 minutes, and the panel will focus on any areas that they feel they do not have enough evidence of. Then, you wait!

One of my considerations when applying for silk was the financial position I may be in. It is generally considered acceptable to undertake junior work for a year following on from taking silk, and I had some junior work in my diary which I was prepared to keep.

Within months, I had my first silk instructions. I was fortunate in that I also sit as a recorder, therefore, when work was quiet, I filled in with sitting.

It is a big cultural change. You go from being an extremely busy junior to having large periods of time when you are not working. You have
to accept this as the new norm and embrace the downtime as it means you have time to prepare cases.

It is a risk, financially, and I made sure I had savings in case it did not go to plan, but that is part of the challenge.

I was lucky in that I took silk the first time I applied, but for those who do not get it, the QCA offer feedback, for both the form and interview. This means you can reflect on your weaker areas and know where to try and improve for the following year.

Posted on

The one constant is that there is no constant

I’ve been asked to write about issues facing US lawyers in the area of ERISA (the Employee Retirement Income Security Act 1974) and executive compensation (for convenience, I’ll consider the executive compensation practice to be a part of the ERISA practice, in references below). I think the keyword here is ‘change’ – it’s clear to me that change is the hallmark of my area of expertise.

Sometimes, ERISA-related change springs from political or administrative change.Sometimes, there is just the natural flow of the legal process. And sometimes, it’s the courts. This is an area that gets reinvented with incredible consistency.

In the ’80s, Congress repeatedly reshaped many of the seminal rules governing tax-qualified pension and other retirement plans. These changes accompanied a seismic shift of the focus of American retirement policy from traditional employer-funded ‘defined benefit’ pension plans to individual account ‘defined contribution’ plans funded significantly by the employees themselves.

If in the ’70s you told a pension practitioner that the centrepiece of American retirement policy was about to become a non-guaranteed individual-account plan funded in significant part by employees that is managed by people who are not investment professionals and that generally pays out in a non-annuity single sum, you may well have been laughed out of the room. Yet, that’s precisely where we are. More recently, a whole new practice area came into being with the Enron-fuelled addition of section 409A of the Internal Revenue Code of 1986, which is broad in its scope and often maddening in its application. More generally, executive compensation generally witnessed a collision of considerations arising under the tax laws; Sarbanes-Oxley, ‘TARP’, Dodd-Frank, and other securities laws and regulations affecting both design and disclosure; and substantive recommendations from none other than the US Treasury. And then came healthcare reform, which became the newest 800-pound (or heavier) gorilla in the room.

And there have been very recent developments. In the last year or so alone we had the implementation of a rule – the US Department of Labor’s amended fiduciary rule – that was arguably as important as any since ERISA’s enactment, and then, in a development as astounding as the implementation of that rule, we had its complete elimination by the courts. The rule, while it was there, changed the way in which financial services organisations did their business, and reverberated even beyond retirement customers with an effect on financial practices generally. The rule’s sudden demise was jarring, and it remains to be seen where market practices will
land. And the impact of the rise and fall of the rule continues to be seen in ongoing federal and state regulatory efforts.

On the executive compensation front, one of the three or four most important statutory tax provisions to an attorney working with public company executive compensation was amended in a way that essentially eliminated the provision as a practice focus. Attorneys were left scouring over transition rules, as the relevance of the provision to compensation structuring disappeared.

On the healthcare front, as indicated above, several years ago the US healthcare system was entirely made over. The legislation survived two
trips to the US Supreme Court. But now a lower court has held the entire statute to be completely invalid under the Constitution, pending further appeals. Where that one ultimately lands is anyone’s guess.

As a result of the ever-changing nature of the ERISA practice, it is often the case that the young ERISA lawyer can enter the practice, and not be significantly ‘behind the eight ball’ as to any number of important aspects of the practice. In fact, there can be almost an advantage to entry after another transformation, as the new lawyer learns the practice from the ground up and delves into nuances as they unfold, unburdened by sometimes confusing recollections of how things once were. But, on the flip side, the challenge to stay current is real and can be daunting.

Change has changed the nature of the practice. While the technical foundational aspects of the practice surely remain, the issues being encountered have arguably become somewhat less obtuse and more judgement based, finding their way into the general discourse on issues that are understandable and of interest to non-practitioners. As the issues have become more rich and diverse, they have tended to go from being often incomprehensible to being more accessible. The client relationships have moved towards more senior personnel as the value-added opportunities for the practitioner have grown and expanded.

Current events will likely continue to dramatically affect the practice. At the highest levels of government, will the Republicans hold the presidency in control in 2020? How will Congress be configured? What will that mean to initiatives that have been put off? What will it mean to rules that have been changed or repealed?

With all of these ebbs and flows, the way in which ERISA practitioners have practiced has itself evolved. There was a time when the ERISA attorney covered the full range of retirement plans and welfare plans. The practice seemed broad and comprehensive, but manageable. Then, employment agreements were thrown into the mix, leading the practitioner towards the world of executive compensation. Now, we have the fiduciary practice and the comprehensive challenges presented by healthcare reform. One can reasonably wonder whether we are past the point where the oxymoronic concept of the ERISA generalist is still viable.

Regardless of what is possible and what may be aspirational, it is now clear that sub-specialising – whether it be, for example, as an executive-compensation practitioner, a fiduciary lawyer, or a healthcare specialist – is itself now a viable approach that can lead the practitioner to strong success. Clearly, we have reached the point where sub-specialisation within ERISA is eminently possible, and there are now countless examples of leading and other highly successful practitioners who are executive compensation, fiduciary, healthcare, and other specialists.

For me, there’s a bit of a wistfulness here, as the interaction between the various practice sub-areas that may find their way under the ERISA banner can be significant, in both obvious and subtle ways, and the ability to see the way it all fits together can be a real advantage.

In the world of employee benefits, it seems like the one constant is that there is no constant. It is truly
a challenge to stay current and fresh…but it can be extremely satisfying when you’ve done so (or convince yourself you have).

Posted on

A non-traditional path to a Texas-sized legal career

Many lawyers begin their careers as law firm associates straight out of law school and eventually make partner around eight years later. Law schools sometimes make you feel as if that’s the only path. I, on the other hand, became a shareholder (partner equivalent) at Greenberg Traurig 18 years after finishing law school and after an exciting, albeit non-traditional, journey which shaped the lawyer I am today.

Bitten by the political bug early in life, I dreamt of working in Washington D.C. After spending a semester in college at American University, then a summer interning for a US Senator from Mississippi, I was hooked. I returned to my alma mater, Ole Miss, for my senior year and remained there for my law degree. I found I enjoyed and excelled at litigation. My partner and I won the moot court trial competition in my third year and subsequently competed on the national moot court trial team. However, the lure of The Hill remained strong. The day after taking the bar exam, I packed up my car and drove to D.C.

After pounding the Capitol pavement, I landed a job as assistant foreign policy advisor to then Senate Majority Leader Trent Lott (R-MS). That same day, I received an offer from a Northern Virginia law firm where I had also interviewed. I knew I could join a firm later but I’d come to D.C. to work on the Hill. My two and a half years in Senator Lott’s office was filled with incredibly rewarding experiences, including international travel. Then 9/11 happened and D.C. was a different place.

In 2012, I moved back to Mississippi and worked with my Dad, a
long-time litigator who’d transitioned into real estate law. I quickly realised real estate law wasn’t my calling, but it was an excellent transition. I then joined a well-established firm in Oxford, Mississippi, where I worked as a litigation associate. There, I got a taste for litigation and enjoyed the excitement of trying cases and arguing motions.

After five years at the firm, my husband and I decided we wanted to live in a bigger city (I still love you, Oxford) and relocated to his hometown of Austin, Texas. I still had the political bug, and thought lobbying might someday be a good fit for my talents and interests. Everyone told me, if I ever wanted to lobby, I’d need State Capitol experience in Austin, so that is where I set my sights. I accepted a general counsel and policy analyst job with a state senator and jumped right into Texas politics. Again, I had opportunities with other more ‘lawyerly’ outfits, but I was ready for political life again. I strongly believe you should trust your instincts, and dive in when the opportunity feels right.

I enjoyed my time in the Texas Capitol, and remained there until my boss retired from office. It was the perfect platform for my entrance into Texas politics and I wanted a bit more. Not quite ready to return to law firm life, I accepted a position at the Texas Department of Agriculture as assistant commissioner for marketing. Both agriculture and marketing were outside of my proverbial career box, but I was so fascinated by the job – marketing Texas wine, beef, shrimp, produce, etc. – I decided to dive in. I gained valuable insight into how state agencies work, which has become hugely important in my current role as a lobbyist and government law and policy attorney.

After two years at the department of agriculture, I was feeling the itch again to pursue law and lobbying when an opportunity presented itself. That brought me to Greenberg Traurig. During my time in Texas government, I was fortunate enough to work with two prominent shareholders in the firm’s government law and policy practice – Tom Bond and Demetrius McDaniel. I knew they were people I’d like to work with, both highly regarded in Texas law and politics. Six years ago, I joined the Austin office and, over time, worked my way up to shareholder.

I love my job and doubt I would have found it — or excelled at it — were it not for my diverse career path. My knowledge of the federal and Texas legislative process, Texas state agency work, and litigation have all allowed me to build a successful practice as a lobbyist and litigator in Texas. In short, you don’t have to follow the traditional path to be successful in ‘Big Law’. Follow your passions, investigate other paths and build your own brand and practice. Give it time and it will come.

Posted on

The battle for diversity is far from won

For many women lawyers, a long-term career at the top level of Big Law seems just out of reach. Even in 2019, the centenary year of women being allowed entry to the profession in the UK, it is still widely believed that women cannot ‘have it all’ and must eventually choose between having a family and a legal career. Diversity statistics from around the world reinforce that belief.

Only 18% of partners at the top ten UK law firms are women (PwC Law Firms Survey 2018), and (as highlighted in fivehundred Issue 02) Germany’s statistics are an even lower figure – just 10.7% of partners in top firms are women, as a 2018 report from the Federal Bar Association shows. Across the Atlantic, 47% of associates at the 200 largest US law firms are women, yet only 20% of equity partners and 30% of non-equity partners are female, according the National Association of Women Lawyers.

In Australia, just over one quarter of equity partners are female (The Australian Financial Review’s Law Partnership survey 2018), while in New Zealand women, who make up more than half of all lawyers, account for 31.3% of partners and directors. Looking at the 20 firms with the most partners, just five have a woman as CEO or managing partner (The New Zealand Law Society, 2018). The situation is similar in Hong Kong and Singapore, where out of the 20 largest firms only five are spearheaded by a woman.

Yet, despite of the infamous ‘sticky floors’ and ‘glass ceilings’ prevalent in so many of the world’s most prestigious firms, some female partners have achieved tremendous success. How have they done so and what do they think needs to change for the next generation to succeed? To find out I asked a selection of female managing partners, practice heads, one law firm founder, and several senior lawyers across Europe and Asia Pacific to share their career secrets.

Of those I spoke to, many attributed their early career success to the presence of a strong female role model. ‘It is very important for women to be championed and encouraged to remain in the game,’ says Anne Grewlich, head of Ashurst’s global loans team in Germany. ‘Early in my career, a chance meeting with a female partner at an international law firm led to me being hired and taken under her wing as an associate.’

Not all lawyers are natural mentors and finding the right one can be as much about luck as it is a firm having a clearly defined mentoring strategy. For their part, women lawyers need to be discerning when making connections with female leaders and future mentors – be they male or female – must understand how mentoring women might differ from guiding men.

‘As women leaders, we understand that women do not always find it easy to promote themselves in the workplace and are perhaps more attuned to hear what our female team members have to say. It is very important to set an example,’ says Melissa Ng, an experienced mentor and corporate partner at Clifford Chance in Singapore.

‘We need to give female associates the assurance that there are prospects for career progression. The way we do that is for them to see women in the partnership, at the top of their game. But it is not just about work – our female associates not only want to see that we have successful careers, they also look to us to demonstrate that we can balance work and family and lead fulfilled, well-rounded lives.’

But setting examples is just one part of the challenge, and by itself often insufficient to push women out of their comfort zone. Several senior female partners underscore the need to allocate their mentorees challenging work; the kind that would intentionally stretch those with low confidence in their own abilities. These partners argue that mentoring, championing, and promoting women is not enough; it needs to be complemented by finding opportunities and putting women forward for awards and great, complex projects, too, and that mentoring programmes are only successful if everyone engages in them – both senior men and women.

Share the credit

In her 2013 best seller, Lean In, Facebook COO Sheryl Sandberg opined that ‘the single most important career decision that a woman makes is whether she will have a life partner and who that partner is’. Suet-Fern Lee, Stamford Law founder and director at Morgan Lewis Stamford in Singapore, says: ‘You need to take mentoring diverse associates beyond the quarterly lunch. Bring diverse lawyers to client meetings and share the credit when you achieve successes.

‘In Asia, women of all races often face pressures from families, and after marriage, from mothers and mothers-in-law to step backwards in their careers. Many of them find it is helpful to have open conversations about challenges like this and the importance of getting their husbands on board and supportive.’

However, law firms need to provide the fertile soil for those women determined to climb the partnership ladder. This, of course, starts with the hiring process, which should include focused recruitment policies and target setting, according to some partners. ‘Having diverse applicants plays a role,’ says Ashurst’s Grewlich, ‘a firm which is known to encourage and value diversity should attract diverse applicants.’ This might just be the crux of the matter, however. Although not willing to go on record, a number of male managing partners told me how they struggle to attract female partners because their existing partnership makeup was either exclusively or predominantly male.

‘We do have female lawyers applying, and we would love to hire them, but when they see that they’d be the only woman in the team they turn down the offer,’ admits one law firm leader speaking on condition of anonymity. So women thrive under female leadership, but who is going to champion junior female lawyers if women are lacking in senior management roles? It seems like the proverbial ‘chicken and egg’ question.

Setting targets

For some, quotas are the logical solution to this problem. For others, they are an anathema to the supposed meritocratic nature of the law. Opinion remains split – even between women lawyers within the same law firm – as to whether the setting of strict diversity targets are appropriate for the profession and the impact their introduction would have on it; that real inclusion is not achieved by mandating it.

As an example of the differing views, while Barbara Mayer-Trautmann, managing partner of Clifford Chance Munich, believes ‘we can’t do without clear targets for how many women we want in management positions’, Bettina Steinhauer, a banking and finance partner in the Magic Circle firm’s Frankfurt office, thinks quotas ‘help if decision-makers are at least required to explain why women are underrepresented in a particular team, or why no female candidate is being put forward for counsel or partner in a particular year. This will help, but not lead to equal representation.’

In Singapore, Suet-Fern Lee advocates fishing from a much wider pool to reel in the best candidates: ‘It is important to look beyond the narrow role specifications for the particular position that one is recruiting for and keep an eye on how diversity will bring different skills and thought processes to the firm’s existing legal teams.’

Even if a more gender-balanced team is created, law firms can’t just rest on their laurels as unconscious bias must also be considered and combatted. Pattie Walsh, who co-heads Bird & Bird’s Asia Pacific employment practice out of Hong Kong, believes ‘it is essential to address unconscious bias and break down the traditional networks which perpetuate and support the progress of the limited participants through access to internal and client opportunities. There must be clear scrutiny of the way opportunities and progression are made available to everyone.’

Entrenched views on who is particularly suited to handling a certain type of work or acting for a specific type of client, affects how work is allocated and can hold women back in their careers. ‘There are many stumbling blocks for women and they start early in our careers,’ says Ashurst’s Grewlich. ‘For example, inequitable distribution between men and women of high-profile or billable work and low-profile or non-billable work, and potential biases in the application of pay scales due to differences in how men and women approach appraisals and
self-evaluate.’

To combat this, Walsh calls on individual partners to ‘actively support and challenge the women they see potential in, by helping drive their career in the direction they choose. This can be done by helping them present themselves in situations where their knowledge and skills can be showcased.’

Rani John and Gitanjali Bajaj, both dispute resolution partners at DLA Piper Australia, also stress the importance of ensuring unconscious bias does not prevent lawyers from developing relationships with clients. ‘It is important to give lawyers the confidence to shine when they do get that opportunity – accepting that women may shine in a different way to their male counterparts and that there is not just one road to success. It’s also about allowing for failure and ensuring that diverse lawyers have the same opportunities to learn and grow from their experience.’

The part time challenge

Melissa Fogarty, joint head of corporate at Clifford Chance London, thinks ‘we all need those more senior than us to encourage us to take the next challenge – to jump out of our comfort zones. I’ve benefitted immensely from the fact that colleagues have had confidence in me and my abilities well before I ever would have – I’ve been brave, sure, but it’s much easier to be brave when the people you look up to are steadfastly encouraging and give you that little nudge you need before you would otherwise be ready to say “yes”.’

However, being exposed to opportunities partly depends on being available to take ownership of work. Perhaps unsurprisingly, no other topic elicits as many differing views as part-time work. While part-time or flexible working can be convenient solutions, they can also result in lower pay and less visibility within and outside the firm.

According to Grewlich, Ashurst actively ‘challenges the need for women to choose between continuing work and raising children. In my team, for associates and paralegals, we actively promote part-time and job-sharing arrangements to overcome challenges with childcare. We want them to know there are still meaningful opportunities when they return to work.’ Yet, not every type of work lends itself equally to these arrangements: ‘It can be more of a challenge to accommodate flexible working in a transactional team with volatile and sometimes 24/7 work demands.’

At Clifford Chance, views on part-time career prospects are divided. Steinhauer in Frankurt points to the dearth of female lawyers at the senior level, ‘maybe partially because they were “overlooked”, but in many cases because they decide to work reduced hours to look after children or for work-life balance.’ However, Munich-based Mayer-Trautmann feels ‘it is crucial to have positive role models who demonstrate that a career is possible with a family, including part-time partnerships’.

Of course, it is worth remembering that beyond the firm/employee dynamic, there is also a third party to consider: the client. ‘We need to realise that we are a service provider,’ remarks Steinhauer. ‘Sometimes it feels our clients have a policy that supports work-life balance, but at the same time they want their usual contact person available whenever needed. We offer flexible part time arrangements and those that offer more predictable working hours, but only have a limited number of these positions.’ Connie Heng, who heads Clifford Chance’s Asia Pacific capital markets practice in Hong Kong, offers a nuanced view: ‘Having children or aging parents means you cannot be at 100% on all fronts all of the time. Women need to know it’s OK to pace themselves.’ At the same time she stresses the need for giving females colleagues ‘as much encouragement as possible, so they can grow professionally and challenge themselves’.

Overall, it seems women can have it all in Big Law; just not at the same time. At least, not yet. As a result, the debate over how to ensure a balanced gender split at the top of the world’s biggest firms will rumble on for some time to come. But while the current statistics are far from perfect, they at least show the profession is moving in the right direction, albeit slowly. That is at least cause for some celebration, as long as it is coupled with a renewed determination not to let the status quo continue. ‘Law firms are becoming more diverse, but it is happening at a glacial pace,’ says Suet-Fern Lee. ‘The battle for a fairer work environment is still very far from won.’

Posted on

2019: A year of fortune and luck for China firms?

2019 marks the arrival of the Year of Pig, which is said to bring luck and prosperity to those born into it. Looking at The Legal 500’s latest China rankings, the previous 12 months have certain been good to many firms – 130, in fact – that made it into our expanded 2019 guide. The market is set for another buoyant year, but before we begin the next cycle of research it is worth looking back on what we discovered last time we delved into China’s legal sector.

Last year’s research highlighted some notable developments, such as Anglo-Australian firm Ashurst’s launch of a formal tie-up with Chinese firm Guantao Law Firm, through a joint operation office in the Shanghai Free Trade Zone; consequently Ashurst became the fourth global player to gain Chinese law access through the 2014 scheme. Following hot on Ashurst’s heels, Linklaters became the fifth international firm to launch a joint operation, thanks to its cooperation with Zhao Sheng Law Firm. Meanwhile, Mayer Brown’s association with PRC firm Jingtian & Gongcheng ended in 2018, with the two firms entering into a global cooperation agreement.

In other news, Beijing continues to welcome new entrants. Palo Alto-based Cooley is celebrating the one year anniversary of its Beijing office; the firm’s second office in China – after its 2011 Shanghai launch – followed the hiring of investment funds lawyer Xun Zeng from Ropes & Gray. Meanwhile, UK firm Stephenson Harwood also bulked up its China practice with the acquisition of Atlanta-based Troutman Sanders’ Beijing office, which in January 2018 also announced the closure of its Hong Kong, Beijing, and Shanghai outposts.

High-profile partner moves from international law firms to ever-growing domestic China practices continue to gather momentum; recent examples include Linklaters’ former managing partner for China, Jian Fang, exiting for Fangda Partners last January; the former Beijing managing partner of Clyde & Co, Patrick Zheng, joined Llinks Law Offices last March; and cross-border dispute resolution specialist Vicky Zhao joining AnJie Law Firm from Freshfields Bruckhaus Deringer. Meanwhile, other lawyers of note are moving in-house; Simpson Thacher & Bartlett’s former Beijing partner Shaolin Luo joined private equity client YunFeng Capital as general counsel in June 2018.

Digging into the detail of the latest China rankings we see King & Wood Mallesons (KWM) is positioned as the most ranked firm in China, obtaining Tier 1 rankings in 15 practice areas. Zhong Lun Law Firm closely follows with 13 top tier rankings. Both firms were also ranked in all 18 practice areas of the China guide. Other PRC firms which achieved the most Tier 1 rankings include Fangda Partners (11), Junhe (six), and Hankun Law Offices (four).

Elsewhere in the charts, Global Law Office is ranked in 17 practice areas, including three top tier rankings, while Dentons (13), Fangda Partners (13), Han Kun Law Offices (13), Guantao Law Firm (ten), Llinks Law Offices (ten), and Allbright Law Offices (nine), DaHui Lawyers (nine), and DeHeng Law offices (nine) also placed well in 2019.

The growth of Han Kun Law Offices, Dahui Lawyers, and AnJie Law Firm is also worthy of specific comment. Han Kun Law Offices was ranked in just one practice area in 2013, yet this year it places alongside Fangda Partners and Dentons China with a total of 13 rankings. Elsewhere, Dahui Lawyers continues its expansion and recently welcomed the arrival of corporate and capital markets duo Julia Dai and Xikang Wang from Latham & Watkins and Goldman Sachs respectively, as well as antitrust specialist Jie Tong from Allen & Overy. The firm’s hiring strategy is clearly paying off; in 2017 it was only ranked in two practice areas, yet 2019 sees it recognised in nine. And while AnJie Law Firm only entered the ranking in 2015, it is now ranked across six practice areas.

What’s keeping law firms busy?

With China’s growth at an expected 6.7% in the second quarter of 2018, its slowest pace since 2016, the world’s second-largest economy has slowed down amid a fiercely spiralling trade war. Furthermore, China’s National Development and Reform Commission’s tightened curbs on capital outflows and increased scrutiny on foreign acquisitions have led to a reduction in global outbound investment. That said, there are a number of very hot sectors in China, such as TMT, education, healthcare, and financial services.

There has also been an increasing interest from Chinese companies seeking public funding and international firms eyeing entry to China following Hong Kong’s recent change in its listing rules for biotech firms. The effect of China US trade war is still deeply felt with a reported 70% drop in 2018 and it will likely impact the amount of Chinese investment into the US in 2019. This uncertainty drives Chinese investors away from investing in the country, who do not want to be caught up in a review process with the Committee on Foreign Investment in the US (CFIUS).

Consequently, Chinese institutional investors are either self-censoring or not taking any risks of making acquisitions in the US, instead turning their interests elsewhere, such as Latin America and Europe. This, however, means that the loss of investment funds from China in the start-up space, which offers access to the China market in return for investment.

Another notable trend in 2018 was the government’s continued push for the mixed ownership reform, which the Chinese government take the lead in choosing a number of centrally and locally-administrated SOEs from a broad range of industries to enter the ongoing mixed ownership reform.

Jieming Weng, vice-chairman of the State-owned Asset Supervision and Administration Commission of the State Council (SASAC), commented, ‘mixed ownership reform should be a two-way street. The government will not only encourage non-public capital to participate in SOE reform, but also support the development of private business together with SOE resources’.

However, SOEs will still retain a strong role under President Xi, sectors that are largely monopolised by SOEs at present are likely to remain so, although some opportunities may emerge for private domestic and foreign investors. The government’s control of sectors such as telecommunications and electricity generation would not be hindered if they were opened to external investors.

Despite being a new practice area for 2019, fintech received a number submissions from both foreign and PRC firms, indicating the demand and the fast developing nature of China’s fintech market. The nation’s internet giants, Baidu, Alibaba, and Tencent are all either building or investing in blockchain technology; Alibaba has partnered with the city of Changzhou to launch China’s first application of blockchain tech in the medical sector, while Tencent hass partnered with China Federation of Logistics & Purchasing to develop an industry application based on the Tencent blockchain TrustSQL.

The firms which were recognised in this brand new category were ranked against their expertise in advising the big banks on financial regulatory matters, as long as the matters had a significant technological
component; assisting innovative fintech start-ups through securing FCA regulatory approval, obtaining seed financing, handling investment rounds, and undertaking or being the target of potential corporate
transactions; as well as advising blue-chip corporates on developing, implementing, or rolling out financial technology.

The most successful foreign firms in our rankings include Baker McKenzie, with 15 practices ranked and followed closely by Hogan Lovells (14), DLA Piper (13), Allen & Overy (12), and Clifford Chance (nine). Baker McKenzie, Clifford Chance and Linklaters achieved five top tier practice area rankings – the most of all international firms – followed by Allen & Overy with four.

Looking back over the last five years, Baker McKenzie has consistently topped the international firm charts with the most China rankings. Hogan Lovells, DLA Piper, and Clifford Chance have also been continuously recommended across a number of practice areas during that same period. The most improved firm, however, is Morrison & Foerster, with nine practice areas now ranked compared to four in 2018.

Turning to individual rankings, KWM has 25 partners ranked in our exclusive leading individuals list, retaining its place as the firm with the most leading individuals highlighted over the past five years. KWM can’t rest on its laurels, however, as Zhong Lun Law Firm aren’t far behind and has seen a steady growth in the number of leading individuals ranked over the past five years (from 13 in 2016 to 23 in 2019). Baker McKenzie (8) has the most leading individuals among foreign firms, followed by DLA Piper (seven), Allen & Overy (six), and Clifford Chance (six).

Looking at firms’ succession planning in China, Ashurst, Clifford Chance, and Hogan Lovells are the firms with the largest number of next generation lawyer recommendations, achieving four individual rankings each across 16 practice areas. By contrast, Zhong Lun Law Firm has the most next generation lawyer recommendations, with 16 senior associates and of counsel ranked across 18 practice areas. Elsewhere, KWM has ten next gen rankings, while JunHe and Han Kun Law Offices have six each.

Congratulations to all firms and individuals ranked and recommended in 2019 and a massive thank you to all who took part in the research process. If you have any comments on The Legal 500’s 2019 Asia Pacific guide, or suggestions for future guides, then please contact me at [email protected].

Posted on

Law firms and sets: your front of house teams deserve better

Recently, I have been helping out with the recruitment of staff for the International Arbitration Centre.

Making sure that the front of house staff meet up to the highest expectations of client service and discretion are very much the principles on which the interviews were based. So we looked at a range of candidates, from high end hotels and hospitality companies to the more traditional sources, namely law firms and sets. We saw some fantastic candidates, and now have a great team ready to go when the centre opens its doors in a few days’ time. But, there was something darker about the process which troubles
me greatly.

We heard tales of unacceptable language, inappropriate behaviour, and even bullying that is a regular part of the day job for some of the front of house staff at law firms and sets. What is clear in some of these organisations is a deepening of the ‘support staff’ mentality, which is demonstrated with the lack of
respect that the individuals are subjected to. And let’s be clear
here – the first people clients see when they come into the firm or set are your front of house team. They set the tone for everything that follows – and believe me, I’ve visited enough offices around the world to know how easy it is to get it right (and wrong).

I’ve had some fantastic welcomes to offices around the world – it’s always a pleasure to walk into the offices at Jones Day, Clifford Chance, Cadwalader in New York, Bracewell in Houston, Allen & Overy amongst others – where the attention to detail from front of house staff is second to none. And then I can go to the other end of things – one of the main firms in Sydney, a Wall Street giant and a recently merged UK firm, where clients and I were treated as if we were disturbing their day. In one of my favourite encounters, I walked into a firm to find a notice from the ‘Director of First Impression’ stating they would be back in 5 minutes leaving an unmanned reception – I would suggest not the best first impression to leave us with.

Front of house staff at their best keep the clients moving to the right meeting rooms – I can regale you with numerous stories of sitting in receptions next to clients of the firm and hearing confidential information being discussed, and hearing dissatisfaction from clients about the way they feel the firm is treating them, and the positive and negative qualities of partners. I found out about a major law firm merger from waiting in a reception almost three months before the story broke, due to loose lips and knowing which firm the partners visiting were from.

A warning – you might need to be careful who you leave waiting in your reception areas! And trust me, The Legal 500 researchers pick up a lot of information about the client experience and the culture of a firm from their visits. The value of great front of house staff cannot be underestimated.

So when I hear stories, in 2019, of a city law firm that requires front of house staff to stand up with hands neatly behind their backs if the managing partner walks into the room, I kind of despair. When I hear stories of front of house staff being rated on how attractive they look with or without glasses, I wonder how the #MeToo movement passed the firm by. They are sailing pretty close to the wind regarding employment law. But what depressed me most when interviewing was how ‘accepted’ bad behaviour is. When I asked the candidates how it made them feel when partners or barristers were shouting to their face (usually about something which wasn’t any part of their job), the answers were similar – ‘it’s just something you get on with’, ‘you have to have a thick skin in this business’, ‘I know that they just needed to shout, so you soak it up and move on’ – and on it continues.

This is not an acceptable way to treat staff, and the damage it can do to the overall culture of a firm or set is clear to see. But it is tolerated. Because the people shouting are the fee-earners? This makes it right? I’ve spoken, off the record, to scores of people in firms and sets about this subject over the past couple of months, and it is a problem for the majority of firms and sets. Time to remember that everyone who works with you (and the emphasis on ‘with’, not ‘for’) is a human being who deserves professional courtesy and respect. A suggestion for the end of the week – treat people well please.