Category Archives: Legal practice

A little distance is healthy. The client is not always right.

The problem with lawyers, say some, is that they are too different. They are ‘clever’, use Latin terms and long words, wear dark suits and ties, and are aloof. They draft long, obscure documents, they take too long to complete work, they won’t give a simple yes/no answer to questions, and they get in the way of my deal. They aren’t team players. They are stand-offish, and their values are different from the rest of us. They cost too much and they earn too much. If only they would stop being like traditional lawyers, we would all get along much better.

How much of this description do you recognise in your lawyer, or in yourself? If you substituted ‘oncology consultant’ for ‘lawyer’ in the previous paragraph, would you still recognise some of these faults, and would they be any more acceptable? Would you rather be treated by an incompetent consultant with a great bedside manner, or a highly competent one with only passable social skills? And if you are the patient, do you have any obligations to meet the consultant half-way, to stop smoking or turn up on time for appointments?

Perhaps the analogy is pretentious? We accept things when they are a matter of life and death that we don’t accept in a business relationship? I am the customer, therefore I am right, what I say counts, and I shouldn’t need to meet my lawyer half-way?

In IP Draughts’ view some of the ‘features’ mentioned in the first paragraph are lawyerly faults and the lawyers among us should recognise them and try to do better. But some of the other qualities are either neutral (and irrelevant) or commendable. The client is not always right, and there are situations where the lawyer should maintain a healthy distance from the immediate desires and preferences of one’s paymaster. This is as true for in-house lawyers as it is for external counsel.

Sometimes, the right course of action is obvious – as when criminal offences are being committed or contemplated – the lawyer should at the very least advise against such conduct, and may have a legal duty to report the activity that overrides any duty to the client.

In other situations, there may be shades of grey, and judgment may be required as to whether to treat the proposed action as within a client’s prerogative or something to stand firm against; whether to gently nudge the client but accept his ultimate decision, or be very blunt and direct. Judgment comes from experience, and advice may need to be sought from a more experienced lawyer or from one’s professional body. In some cases, the client may be hopeless at recognising the dangers or at taking the point seriously. Lawyers are, or should be, good at standing back from a situation and looking at it objectively; this can be a great benefit to a client who is ‘too close’ to the issue.

Not a great outcome when Sir Thomas More fell out with his client, Henry VIII

Part of the lawyer’s skill-set is to provide a good service and work closely with one’s client, while retaining objectivity and a professional set of values. Sometimes, it is impossible to reconcile these objectives and the lawyer either gets fired or suffers professionally. Sometimes, the fall-out is greater. Though the circumstances were all very different, IP Draughts is reminded of what happened to Sir Thomas More, the Enron lawyers, and the most recent, acting Attorney General in the USA. The recent dismissal of the Director of the FBI is in a different category, as the President of the United States was not his client, though by some accounts the President thought he was.

So, IP Draughts would put the ‘faults’ described in the first paragraph into different categories:

  1. Must try harder. As a lawyer one should try to be responsive, listen hard to what the client is asking for and provide it, communicate well, provide as simple an answer as is possible in the circumstances, and generally try to be user-friendly and provide an excellent service.
  2. Up to a point, Lord Copper. There may be situations where a lawyer could try harder to fit in with the prevailing values of the client, eg by ditching the suit and tie, or by providing a short memo of advice, subject to caveats, rather than write a long essay. But the lawyer should ensure that this fitting-in doesn’t result in becoming a yes-man on points that matter, as described in the next paragraph. He should also keep in mind whether the person instructing him is reflecting the overall wishes of the organisation that he represents. For example, is that person keen to see the deal go through, no matter what the long term risks to the organisation?
  3. You say tomato… Increasingly, lawyers are under legal duties to act in ways that their clients may not like, such as reporting suspicions of money-laundering (in the EU) or corporate fraud (in the USA, eg under the Sarbanes-Oxley legislation). These duties are in addition to longstanding legal and professional duties to the court, to uphold the rule of law, to act ethically in one’s personal dealings, and so on. Even if there is no legal or professional duty, a lawyer may serve his client’s best interests by maintaining a degree of objectivity. For example, when advising on the strength of a case, it is very easy to be swept along by the emotions of one’s colleagues; it is important to keep a clear head and be prepared to articulate an unpopular message. In other words, it is not only acceptable, it is sometimes necessary for a lawyer to take a different line to one’s client, and the mindset that goes with these duties is likely to involve a certain degree of distance from purely commercial priorities, though the degree of distance will depend partly on the client. It should be possible to do this with a light touch, though.

In summary, provide a good responsive, user-friendly service. Try not to be too lawyerly. But keep enough distance to be objective and fulfil your legal and professional obligations.

 

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When is a technology start-up like a law firm?

What does a technology-based start-up company have in common with a young, commercial law firm?

Clearly, it depends on the company and the firm. IP Draughts has seen dozens of start-up companies at close quarters, some of them at very close quarters as a virtual, in-house lawyer. He has observed them grow in various ways – through self-financing, through external investment, through listing on Stock Exchanges in the UK and overseas, and through acquisition by larger companies. He has seen some of them fail, when their business model is flawed, when their products in development don’t make it to market, or when they run out of money.

He only has experience of running one young, commercial law firm. Anderson Law LLP has grown steadily from one lawyer to 11 over 23 years. Six of them trained with the firm.

The business model of a start-up company is typically more ambitious than that of a law firm. Many companies want to scale-up to the point where the shareholders make a large return on their investment. Many law firms, by contrast, are closer to the ‘life-style companies’ so despised by the investors in Dragon’s Den – typically, a lawyer sells his time, and the opportunities to scale that up are limited. The lawyer may eventually manage a team of lawyers and generate profit from their time, but there are natural limits to the scale of this activity. Attempts to monetise law firms through outside investment have, so far, largely failed.

Despite these differences, there are some lessons that are common to both types of enterprise.

  1. Provide a good product or service that people want. Without this element, the business will automatically fail. Many start-ups fail because they don’t understand the market or their place in it. Some founders are brilliant in their own way, but lack commercial astuteness. Our law firm is never going to be instructed on the merger of GSK with AstraZeneca, but we have our own set of skills and scale, and we try to match them with client needs.
  2. Develop the market. For a company selling widgets, this may mean finding new customers or developing new products, or both. For a law firm like ours, we hope to have a long-term relationship with clients and get repeat instructions. But inevitably some clients disappear or move on to other firms, and we are also ambitious to grow; the more lawyers we employ, the more work we need for them. Therefore, we need to have a pipeline of new clients over time. In our case, these mostly come from referrals and long-term reputation, rather than advertising or promotion.
  3. Hire good people. Preferably, hire people better than yourself. Finding good people who are self-motivated, and a cultural ‘fit’ with the organisation, is an essential part of growing a business. What can you offer them, to make them want to join a technology start-up or small law firm? In our case, we can offer high-quality work, working with high-quality colleagues, without the pressures of a City law firm.
  4. Create an environment where people want to work. Once you have hired good people, you need to keep them. Have you created a collegiate working environment, where people feel that they are valued, and where they are able to develop their careers and do good work? Regrettably, IP Draughts has seen some organisations where employees are treated as commodities, or where the employee is under pressure to justify their existence, and this is not the type of environment in which he wants to work or employ others to work.
  5. Be clear on your objectives and values, communicate them well. These are two separate points, but both need to be communicated to staff and to the outside world. The organisation needs both a set of values, and a direction of travel for its business. The organisation’s leaders need to establish these and keep communicating them through words and deeds. Some technology start-ups are actually very good at this, particulary when led by a charismatic founder. In our law firm, the values include a strong ethical base, a commitment to technical excellence, and a pragmatic and creative approach. The direction of travel includes developing long-term relationships with clients, maintaining high levels of service, and steadily building the size and reputation of the firm. There are both modern and traditional elements to this mix; some start-up law firms seem so keen to emphasise their difference from what they perceive as ‘stuffy’ traditional law firms that they are in danger of throwing the baby out with the bathwater. Some elements of UK law firms are best-in-class, though it is fashionable to denigrate them.
  6. Plan for growth. The company or firm needs to think about the long-term and not just the day-to-day business of making sales. How are the leaders going to grow the organisation, what people and resources does the organisation need, and how is it going to position its public communications to reflect the longer-term aspirations? Technology start-ups tend to be better than the average SME at doing these things. In our case, moving to Oxfordshire and building new offices, 15 years ago, provided us with the space to grow. Taking on trainees periodically has helped us to develop our complement of staff; there is no immediate financial return from such hirings, but they are an investment for several years ahead.
  7. Succession planning: avoid ‘founder’s syndrome’. Linked to the previous point, the structure of the organisation needs to keep adapting as the organisation grows. There is a phenomenom known as founder’s syndrome, which refers to the problems that can arise where the founder of an organisation becomes a liability as the organisation grows. Some technology start-ups initially need the energy and drive of their technical founder, but later need a professional manager and a more ‘organised’ way of working.  A related issue for law firms is what happens when their founder retires – do his clients stay with the firm, and does the firm have the right management structure to continue without him? In IP Draughts’ case, though he is not planning to retire for many years yet, he has tried to ensure that all clients are used to working with younger members of the firm, and that the partnership includes people with different skills (including management skills), but with all of them being engaging, pragmatic, ethical, technically-excellent lawyers who contribute to the future direction of the firm.

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Diversity in IP practice: what does it mean?

The IP professions, and the UK legal professions generally, are keen on promoting diversity in the workforce.

The Law Society and SRA impose diversity obligations on solicitors, for example requiring each firm to collate diversity statistics and publish them. IP Draughts’ firm’s statistics – now a little out of date – can be found here. Before being accepted as a member of a Law Society committee, would-be members must take an online course on diversity. Committee chairs are required to take further online courses on diversity and disability. Shortlisting of applicants for committee vacancies is done “blind” without seeing the names of the applicants.

The Chartered Institute of Patent Attorneys and other IP professions have formed IP Inclusive, and an increasing number of firms have signed up to its charter.

Some might say that such initiatives are particularly necessary in the legal professions, which are perceived as lacking diversity.

IP Draughts attended a meeting earlier this week – all the other participants were not lawyers – at which one of the people present referred to an initiative to help women to progress in the workplace, and another participant expressed the view that the best person should be chosen for a job, irrespective of gender. IP Draughts commented that how one defined the requirements of the job might affect who would be regarded as “best”. He cited the example of the UK Supreme Court, where only one woman has been appointed, and where traditional selection criteria may militate against certain types of candidate.

This exchange reminded IP Draughts that the legal professions may be ahead of some other sectors when it comes to talking about diversity. This is not meant to be a cynical comment. Talking is the first step in getting new attitudes embedded in an organisation.

An issue for IP Draughts is that diversity can mean so many different things, and that initiatives to improve diversity may tackle the most visible examples – gender and skin colour – while failing to improve the overall culture of an organisation. Measuring diversity through statistics is a very blunt instrument; it may result in improved statistics but not fundamentally change attitudes.

The UK Intellectual Property Office recently sent IP Draughts a copy of its corporate plan for 2017-2020. Most of the document is concerned with the IPO’s outward-facing activities. Among its high-sounding corporate objectives was the following statement on its internal values, which IP Draughts found very encouraging:

We believe we are an organisation where difference is valued and one where our people feel able to bring their whole selves to work. Nobody in the IPO should have to change who they are when they come to work just to ‘fit in’*.

*A 2013 study by Deloitte revealed that 61% of respondents covered up an aspect of themselves at work.

Giving people space to be themselves at work is, in IP Draughts’ view, an extremely important part of the larger diversity agenda, and it is good to see the IPO focussing on this aspect. Much earlier in his career, IP Draughts was in a job where he felt he had to suppress a significant part of his personality in order to ‘give the right impression’. It made him determined, when he started his own firm, to create a different atmosphere for staff.

Giving people space needs to be combined with recruiting people whose skills and attitudes will contribute to the common enterprise. For example, if ‘being oneself’ means being anti-social, disruptive, lazy or incompetent, then that contribution is not being made. But as long as the overall objectives of the organisation are being met, and the individual is making a positive contribution, they should have reasonable freedom to be themselves.

IP Draughts was interested to read the news that a leading international law firm, Linklaters, is offering people a 40-hour week in return for a one-third salary drop. This could be viewed as an initiative that will help to promote diversity, whether it be for the person who has caring responsibilities, or the person who simply isn’t cut out for 60-hour weeks (if that is what is usually required) or who isn’t interested in being a millionaire but wants to do good work in a prestigious firm.

Ultimately, valuing people as individuals, and reducing the expectation of social conformity, may lead to greater progress on all aspects of diversity than targets, statistics or policy statements.

 

 

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IP lawyers have high standards of professionalism

A couple of weeks out of the office – first, running the 5th annual outing of the UCL IP transactions course, then taking the IP Matriarch for a few days’ holiday in the West Country – has left IP Draughts in a reflective mood about the IP profession that he has worked with for the last 30+ years.

This year, the IP transactions course had about 30 speakers and 36 students, which could be viewed as nearly a 1:1 ratio of students to teachers. The quality of both teachers and students has been excellent, and the well-designed facilities at this year’s course venue – UCL’s Chandler House – helped to put everyone into a suitable frame of mind for learning. It is easy to foresee that many of the students will be teachers on a similar course, if not this one, in 20 years’ time.

Every profession has people who are more or less diligent and able, more or less willing to train others and be trained, and more or less straightforward and pleasant to deal with. IP Draughts’ experience is that, on the whole, IP is a good area in which to practise, with a high proportion of good people.

It is not just his experience with the IP transactions course that leads IP Draughts to this conclusion. He also has experience of working with IP lawyers on the Law Society’s IP Law Committee, and has found them to have a similar outlook to the people on the course. IP lawyers tend to focus on the task at hand, have high professional standards, be reasonable in their personal dealings, and if there is a problem they try to fix it with what IP Draughts thinks of as an engineering-mindset. Through his work in the Law Society he has learnt about how some of its other committees and Boards operate, and he has been surprised at some of the stories he has heard.

Another anecdote adds to this impression. IP Draughts was sat next to a very senior (current) judge recently, and the judge commented that if one could deal with IP cases one could deal with any other type of case. IP Draughts is still mulling over what the comment meant, but he takes from it a sense that many aspects of life, law and complexity can be found in disputes over IP.

IP lawyers are not perfect, and there are times when IP Draughts finds them frustrating – pedantic, too focused on legal minutiae, overly-competitive, overly-confident or all of the above. But similar criticisms could be made of other types of professional. Aspiring lawyers could do much worse than choose IP as their area of professional practice.

 

 

 

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