2010 naiman clarke in house market report

NAIMAN CLARKEIN-HOUSE SURVEY

The best legal opportunities

2010

Unlike many developed economies Australia has been fortunate in sidestepping a technical recession, but while a sense of optimism is returning to economic commentary recent events indicate that a return to robust growth is still a way off.The Global Financial Crisis has tested many businesses and their In-house legal departments like few events in recent history. The inaugural Naiman Clarke In-house Legal Practice Survey looks at the effects of the downturn on In-house legal practices and sheds some light on how In-house counsel can best manage their people and practice through difficult financial times, whilst building a strong foundation for the future.

1. INTRODUCTION AND METHODOLOGY

The Naiman Clarke In-house Survey is based on in-depth and national research. To be released annually, the report will analyse a range of issues affecting In-house legal practices throughout Australia.The research for the 2009/10 report was conducted with the following objectives in mind:

• To gain an understanding of the challenges faced by In-house legal practitioners during the GFC.• To explore any changes to the practices mix of In-house legal counsel brought about as the result of the Global Financial Crisis.• To explore whether the GFC has had any effect on the outsourcing practices of in house legal departments, and if so in what way.• To investigate the human resource management practices of In-house legal departments including hiring intentions, retention strategies and remuneration practices.• To explore the views of In-house counsel on the economic outlook for Australia in general and their industry sector in particular.

Research Objectives

The research was carried out by conducting in depth one-on-one interviews with senior In-house lawyers across a range of industries. An explorative research technique was chosen because it offered a variety of benefits including flexibility (with the researcher being able to ask questions and collect data on a variety of topics), and the ability to collect highly detailed data from the subject giving the researcher access to high quality information.

Research Methodology

NAIMAN CLARKE IN-HOUSE SURVEY 2010

Naiman Clarke In-house Legal Practice Survey...sheds some light on how In-house counsel can best manage their people and practice through difficult financial times, whilst building a strong foundation for the future.

Participants from a range of key industries across small (under 100 employees), medium (100-200 employees), and large (200 or more employees) enterprises were surveyed. Due to time constraints we were precluded from using some of the more time consuming and complex probability sampling methods and in these circumstances non-probability sampling methods such as convenience and snow-ball sampling were employed.

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For the 2009 survey participants from 17 core industry sectors as detailed below were surveyed.

• Advertising/Marketing/Media• Automotive• Construction/Property/Engineering• Commodities• Education• Financial Services/Insurance• FMCG• Government• Information Technology• Manufacturing• Mining/Resources• Professional Services• Property• Retail• Telecommunications• Transport/Logistics• Wholesale/DistributionThe participants were part of legal departments that ranged in size from 3 to 40 lawyers with an average team size of six lawyers and two support staff.

Participants from a range of key industries across small (under 100 employees), medium (100-200 employees), and large (200 or more employees) enterprises were surveyed.

2. ECONOMIC OUTLOOK


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Respondents were asked their views about the outlook for the Australian economy in general and their industry sector in particular. The survey participants were generally optimistic about the Australian economy in 2010 but with the exception of a small minority they were not overly bullish. The overwhelming feeling was that while there are some green shoots it is unlikely that we will see a quick recovery and that it may take until 2012 for the economy to fully recover. Almost universally respondents felt that the global economy will continue to do it tough over the next twelve to twenty four months but that the local economy would fare better.

Economic Prospects

Most respondents felt that a return to robust growth was unlikely until liquidity returned to global financial markets, but while many believed that this was likely in 2010 they were not sure to what extent or how quickly the recovery would take place. There was a wide divergence of opinion on when the economy would recover as well as the shape of the recovery. Opinions were fairly evenly divided between those that expected a “U” shaped recovery and the more optimistic respondents who were expecting a “V” shaped recovery. This divergence of opinion is best exemplified by the following statements from respondents:

Shape of Recovery

“I am not a financial expert but it feels like we have hit the bottom but I am not sure about the shape of the recovery”“We have hit the bottom but the bottom takes a while to play out and in these circumstances we are likely to see a parabolic [U shaped] recovery”“We are likely to see a moderate recovery, Australia is better placed than other countries but I am not sure whether there will be a double dip”“I think we are seeing a return to some pretty strong fundamentals but it will probably take a good while to get back up to the levels we were operating at previously”“I am not sure when it will take off but when it does take off it will take off like crazy”

“A lot of the negativity is starting to ease. I think it’s going to go up from here and come back as quickly as it went away”

The overall sentiment was caution summarised by comments such as “while I have a cautiously optimistic outlook there is a lot of complexity, we are in uncharted waters and not taking anything for granted” and “I would express my feeling as conservative optimism, I want to believe that the worst is over”. There was an overwhelming feeling that there is “still some pain to come in some sectors”.

The most common economic concerns were the employment outlook, the likely impact of rising interest rates on the shape of the economic recovery and continuing unrealistic asset valuations exemplified by the following comments:

Shape of Recovery (Continued)

When it came to discussing prospects for their own industry a majority of respondents felt next year would see a modest improvement, even participants whose industry had not been adversely affected during the GFC expressed some caution. The sentiment ranged from a decreasing decline to modest growth as summarised by comments from respondents such as:

“While the decline seems to have slowed or stopped I am not convinced that we are going to see a significant upturn in the global economy in the short term. I feel we are likely to see a U shaped recovery with some pain yet to come. My greatest concern is the hidden jobless in the economy, the people who are not showing up in the statistics at this stage but who may struggle to find work in the future” “We are expecting challenging conditions over the next twelve months ... [due to the] ... uncertainty in the manufacturing and commodities sectors, vagaries in exchange rates and the global economy, in the macro economy the pain to consumers is still to come as interest rates return no long term levels when the economy improves”. “I think that the veracity of asset valuations is still questionable and to me this says that fundamentally nothing has changed, we have still not learned the lessons of the GFC”“While corporate profits which are the primary drivers of share markets have recovered a bit, balance sheets still contain a lot of overvalued assets and until this is remedied we can continue to expect volatility in the financial markets”.

“Our organisation is budgeting for a decreasing decline in trade volumes in 2010, we are cautiously optimistic that we can begin to rebuild our business in 2011”“Manufacturing will bounce along the bottom for a while, domestic housing will improve a little but interest rates will have an impact”“While liquidity is returning to credit markets the improvement is slow and it is still difficult for entrepreneurs to get finance. I think it’s going to take a while to return to normal operating levels” “The GFC has had a big impact on ... [our] ... industry due to the issues in the finance industry, we expect the next 12 months to be steady with modest growth” “The prospects for our industry are very much dependent on the preparedness of banks to start lending again, at the moment the banks are imposing very strict conditions”“I do not believe we are going to see a decline in the domestic market but 30% of our revenue comes from international customers and we may see some pressure in that area”

Perhaps unsurprisingly, most confidence was shown by legal counsel in the finical services sector but even here there was a fair degree of caution.

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3. CHANGE TO PRACTICAL MIX


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One might generally expect that during times of serious economic hardship the practice mix of In-house legal departments is likely to change. The survey reveals that both the nature and extent of the changes resulting from the impact of the Global Financial Crisis have not been in line with expectations. Most notably the survey indicates that there has not been a large increase in disputes but finance related transactions appeared to be on the up.

Many respondents reported only a small decrease in deal related transactions. “Our practice mix has changed but not as much or necessarily in the ways I imagined, while we have seen an increase in restructuring work there has also been lots of new business as well”.As might be expected, bearing in mind the speed at which most businesses moved to reduce headcount, the increased focus on productivity as well as recent changes to industrial relations legislations, there has been an increase in employment and industrial relations type work. “We have seen more work in the HR space as the result of the business ratcheting up performance expectations”.Other changes are summarised by the following responses:

In the Financial Services and Insurance sectors the GFC has led to an increased focus on compliance work and perhaps unsurprisingly, these are the sectors that saw the biggest trend towards an increase in litigation.

“While we have seen more dispute resolution and insolvency based work it has not been a huge change in those areas, but we have seen a substantial increase in finance related work”. “Disputes have actually dropped but this is not the result of economic circumstances but the manner in which we have handled disputes”

“In past cycles I had noticed a change in the practice mix towards insolvency type transactions (debt recovery, liens etc) and disputes generally increasing, but despite the current hard times we are still doing a lot of contracts”“There hasn’t really been a change in practice mix, we were expecting it but it didn’t really happen”“We have seen less large transactions such as M&A and large supply agreements ... [but on the flip side] ... there has been an increase in restructuring agreements and an increase in technology in some parts of the business”

“We have seen more work in the HR space as the result of the business ratcheting up performance expectations.”

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As might be expected In-house lawyers deal with a range of business and professional challenges. The results of the 2009 survey indicate that in addition to the common challenges normally facing In-house legal practices (e.g. the requirement to deal with new regulation) there were a number of new challenges arising specifically from the economic conditions created as the result of the global economic downturn including the increased focus on corporate governance as well as the challenge of dealing with GFC related resource constraints.

When asked about their biggest challenges over the last twelve months the most common response was the requirement to do more with less as the result of cost constraints exemplified by comments from the following respondents:

Doing more with less

Even legal counsel supporting businesses that were not affected by the economic downturn were forced to deal with a reduction in spending. “Since the financial crisis we have seen some pulling back of discretionary expenditure, it’s more a case of being cautious rather than the affect of financial circumstances”. A bi-product of the reduction in resources available to legal departments was that lawyers were sometimes required to advise in areas where they may not have sufficient expertise. “For us the greatest challenge has been the diversity of work. We are expected to be experts on just about everything”.

Raising Finance

As might be expected many businesses were dealing with financing pressures arising from the reduction in liquidity in the credit markets. “While liquidity is starting to return to credit markets the process is slow and it is still difficult for entrepreneurs to raise finance. Consequently refinancing existing debt and raising new capital has been difficult in a challenging business environment”. These pressures were also having an impact on organisations that did not rely on financial markets to raise finance. “The greatest challenge for us is continued funding, it is becoming harder to get funding from government”.

“We are not splashing the cash anymore, our budgets are under increasing pressure, corporate is asking us to do more with less”“Our biggest challenge is doing more with the same resources, getting the ship in order during an economic downturn requires more legal work but with no extra resources”“Providing legal services with insufficient resources is always a challenge”“We are dealing with cost pressures but are still responsible for delivering a quality outcome”“There has been a huge amount of work created by the market conditions and regulatory changes but because of headcount freezes in our company we have been expected to do more work with less resources”

4. CHALLENGES

“For us the greatest challenge has been the diversity of work. We are expected to be experts on just about everything.”


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The challenge of dealing with new legislation continues to be one of the most common challenges In-house lawyers are dealing with:

Regulatory Changes

When asked to comment on the challenges facing their business the concerns cited included continued margin pressure in spite of the general economic recovery, asset values (a number of respondents felt there were still a lot of overvalued assets in the market), a slow recovery and the state of the international economy. The following comments summarise the most common issues:

Other GFC Related Business Challenges

“We are preparing for new legislation that is likely to have a significant impact on our industry sector. The challenge will be planning for something where we are unsure of the details, so it’s a bit like gazing into a crystal ball”“Working effectively with regulators is one of the greatest challenges facing our business at the moment. It seems that each regulator is very different in style and approach. Being the interface between the regulator and the business is an ongoing challenge”“We operate in a highly regulated environment dealing with FOI issues, State privacy legislation and regulatory oversight from the ombudsman and ICAC and this is a continuing challenge for our practice”“We are bracing for the legal challenge of dealing with new legislation coming at the end of the year”“One of the greatest challenges we face is changing regulation, the ability of a change in regulation to have a substantial impact on shareholder value”“The new government is trying to prove itself by introducing a raft of new legislation to position itself as a friend of the consumer. This increases the compliance burden on businesses”.

“Our clients are more sophisticated about how they use our services. They have started to differentiate among our product offerings in order to save costs. Specifically they are choosing less premium products to save money”“One of our greatest challenges is declining margins due to a change in product mix caused by the GFC”“The GFC is unprecedented in terms of the pressure it put on management, advisors and boards”“Our greatest challenge has been caused by cost cutting & downsizing over the last 12 months. The result is a loss of knowledge, momentum & organisational memory of the people who leave” “Supporting a business which is under great pressure in the market is always a challenge as is dealing with performance and HR issues which are associated with an economic downturn”

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While GFC related challenges featured highly in this year’s survey there were also a number of issues which represent continuing challenges for In-house lawyers raised by respondents. These included “understanding the company and the people and what makes them tick”, managing the expectations of internal clients. “Managing client expectations is always a challenge. Many internal clients come to the legal department expecting a yes/no answer and this is often not possible”, and the pressure not to stand in the way of the businesses transactions is “an ever present challenge for In-house lawyers”.

In the financial services sector the increased focus on compliance was a commonly cited challenge. “Everyone has raised expectations of the level of risk analysis we are expected to conduct”.

Non-GFC related challenges

“Everyone has raised expectations of the level of risk analysis we are expected to conduct.”


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Few would argue that it would be impossible to effectively run an In-house legal practice without some assistance from external legal providers. For this reason, the effective management of outsourcing practices is a key area of competency for In-house legal counsel. For the 2009/10 survey respondents were asked their views on a range of topics dealing with the issue of outsourcing including the types of matters typically outsourced, the impact of the GFC on outsourcing practices as well as their approach to a number of costing models for legal services emerging in the marketplace.

When asked to comment on the types of matters typically outsourced to external legal providers the majority of respondents stated that they were most likely to outsource matters based on their size and strategic importance to the business, matters that involved a high risk to the business or had the capacity to have a negative reputational impact on the business, and matters in specialized areas of the law. The following responses were typical:

Type of work outsourced

Budgets

Many legal departments were under pressure to reduce spend on external legal counsel. This was more likely to be the case for local affiliates of multi-national corporations:

“We outsource non-routine work such as litigation, major M&A and capital raising”“We tend to outsource the legally complex matters that we do not have the time or resources to handle effectively In-house”“It depends on the size of the transaction and how business critical it is”“We outsource complicated and high risk matters as well as resource intensive project work”“We only outsource work that is significant from a risk or reputational perspective”

“We’re under pressure to reduce external legal costs which we have adapted to in a number of ways including keeping more work In-house & negotiating better fees with the firms that we use”“The message in our company globally was to reduce costs, to go to the firms and try to reduce rates by 10%”“Even though there is pressure to reduce costs, I have taken the attitude that it is better to work collaboratively with external firms on the issue of fee reduction”“There has been some fairly aggressive discounting in the United States and that has resulted in some pressure for us to reduce costs in Australia and as a result we have had to make some adjustments”“The legal department has been under pressure to reduce outsourcing costs as part of a global policy of cost cutting. We have looked at both how much work we outsource and who we use and have started to use lower tier firms to reduce costs”

5. OUTSOURCING

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Even lawyers working at organisations which did not have a specific policy of reducing external legal spend were more likely to look more closely at their outsourcing strategies as part of organisation wide cost cutting initiatives. The following comments were indicative of the general mood:

Budgets (Continued)

One of the most common strategies used to reduce external legal spend has been the rationalisation of external legal panels:

Other commonly employed strategies to reduce external legal spend were “going down a tier” i.e. moving some or all work from top to medium tier suppliers and looking at non traditional fee arrangements for commoditised work:

“We have become more vigilant with pricing and more diligent on querying fee estimates” “I have become increasingly reluctant to send work externally”“We are always looking at reducing costs by driving efficiencies”“We have had pressure applied internally to reduce fees to outsourced providers, this has come at a time when the amount of work we outsource has dropped significantly because there have been less projects on and we are trying to do more In-house”“We are reducing our outsourcing spend by increasing the size of our team”.

“Our number one goal globally has been to reduce the number of firms we use around the world as part of an initiative to decrease outsourcing of legal work”.“One of the KPI’s introduced into our organisation over the last couple of years has been the reduction of legal expenditure. We have been able to reduce expenditure by almost twenty five per cent by bringing as much legal work as possible In-house and consolidating our panel – we took a large informal panel and formalised it as well as introducing restrictions on who could brief out to the panel”.

“While we have now tasked our external providers to reduce their hourly rates, we are much more sensitive to the resourcing of matters. We are open to and encourage lawyers to come up with different approaches to pricing such as fixed fee arrangements and risk sharing approaches involving success fees” “It often comes down to the relationship with and confidence in the legal service provider when it comes to dealing with the bigger matters. In respect of the more commoditised work where we believe there is room for improved efficiencies we have made some adjustments by encouraging innovation in legal service delivery and cost models”“To address the challenge of doing more with less resources we have moved from using the top tier firms to mid size firms, we have also moved to retainer based, fixed fee and capped fee models”“We have stopped using the top tier firms because at medium firms we are allocated a partner at the same price as solicitors in top tier firms”


“We are going through a RFI at the moment and looking at blending fixed rate fee arrangements on some matters and the value add that firms can provide” “We have tiered our legal suppliers, as part of this initiative we have defined the commoditised work and taken this away from our top tier suppliers”

Budgets (Continued)

While a high proportion of respondents were focusing on reducing external legal spend a statistically significant number were not planning on a reduction, or in some cases, due to expected activity in the following year actually planned to increase spending:

Another interesting finding was that more than a third of respondents (37%) did not have a formal budget for external legal expenditure. “We do not budget for external legal counsel. While our spending is relatively constant on a year to year basis we do not feel it is necessary to set an arbitrary figure for external legal spend”.

“Our company has been more focused on headcount than external legal spending so there has been no change in outsourcing planned and our budgets for external legal expenditure have remained the same as last year” “Our budget for legal services next year is doubling due to deregulation and an increase in trade”“We are actually planning to increase our legal spend next year due to the number of ... [new products] ... expected to come on line next year”.

“We have reshuffled our panel and used this as an opportunity to drive down rates.”

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There does not appear to have been across the board pressure on hourly rates of law firms as the result of the GFC and while there was evidence of fee reduction from some external providers there does not appear to have been a widespread or systematic focus on fee reduction among law firms providing services to respondents in an effort to win new business, it appears that any fee reductions that have taken place were design to retain existing business.There is also evidence that external providers are trying to use economies of scale and improved internal efficiencies to provide improved savings to their clients. This appears to be a response to an increasing trend to avoid the outsourcing of the more routine work by In-house legal departments.

Fee Arrangements

While In-house lawyers generally feel that time costing is not the most efficient way to resource matters there is a general consensus that there are few effective alternatives available in the market at present and that value as opposed to price is the primary driver in determining choice of provider.

“A few firms approached us directly to offer reduced or fixed fee arrangements”“We are open to and encourage lawyers to come up with different approaches to pricing such as fixed fee arrangements and success fees with risk sharing”“We have moved to a fixed fee model for debt recovery”.

“The hourly charging model is flawed but in many cases there is no better alternative”“We still engage lawyers on an hourly rates basis, if you want fixed pricing there is going to be a contingency built unless they are desperate and that is not the type of firm we are likely to engage because of the specialist nature of the advice we are seeking”“Some law firms have offered us discounted fees but at the end of the day we are looking at value for money arising from efficient processes and this does not always come from the firms with the lowest hourly rates”“The more complex the work, the greater the risk and impact on shareholder value the less likely you are to look at price as a determinant and select the service provider based on quality”.

The lawyers we use have come to us and been proactive in sharpening the pencil and are working harder to retain our business


Most respondents said they planned to keep team size the same with no plans to grow. No respondent expressed an intention to reduce their team size. Approximately 15% of respondents were looking at growing their team with the majority of these being from the financial services sector or from businesses that had not been severely impacted by the GFC.

Hiring Intentions

Remuneration Practices

Unsurprisingly most respondents revealed that their organisation was not offering any significant salary increases to the legal team. The exceptions were at the lower PQE levels where junior lawyers were receiving market increases as the result of their increasing seniority, these increases were designed to avoid a growing gap between private practice and In-house remuneration models. Bonuses were still being used to reward outstanding performance even with increased pressures on costs resulting from the GFC with about one third of respondents stating that bonuses had been paid to the top performers.

“We have head count freezes even though we are expecting work to increase with the arrival of new [products]” “We are looking at adding to our team but this is dependent on business sign off”“There’s scope for growth in the legal team in the next 12-18 months as the business has plans for growth” “We expect an increase in the size and capabilities of the legal, risk and compliance team”.

“Companywide there were performance reviews but our organisation instituted an executive pay freeze which included the legal team, but fortunately we were able to reward outstanding performance with bonuses” “Salary reviews for legal were in line with the rest of the company and while the volume and complexity of work have not decreased in our department market pressures do get taken into account when reviewing salaries”“There’s been a companywide freeze on pay and no bonuses paid, the legal team has been treated the same”“There has been a salary freeze across most areas of the company but this did not apply to shared services which includes the legal team”“Legal salaries are tightening up globally in line with the rest of the business but we are still using bonuses to reward top performers”

6. HUMAN RESOURCE MANAGEMENT PRACTICES

“We haven’t had across the board salary freezes but both salary reviews and bonuses were paid out at a lower level”

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“While officially our organisation has instituted salary freezes the top performers have still been looked after with salary reviews”“Juniors have been treated differently salary increases are based on market at the lower PQE levels”

Remuneration Practices (Continued)

Managing the career progression expectations of junior lawyers was one of the greatest human capital management issues faced by In-house legal departments (especially in the smaller teams). While a range of tools were employed by far and away the most common strategies were providing opportunities for lawyers to develop their career by moving into the business and using remuneration policies to retain staff.

Career Progression/Retention

“We have a flat structure in the department and manage career progression by giving our lawyers an opportunity to move into the business”“One way to keep people is to pay competitively, we try to pay the same as law firms”“Because of the size of our team, moving into non-legal roles is the most common way lawyers in our department progress”

“There will be no raises but bonuses will still be paid out to the top performers.”

Johnothan Naiman is a qualified lawyer having practiced as a solicitor, barrister and In-house counsel. In addition to his legal qualifications, Johnothan has completed a Masters of Business Administration and is currently studying towards his Masters of Commerce. As the CEO of Naiman Clarke Johnothan regularly provides advice and assistance to some of Australia’s leading law firms and In-house practices on a wide range of employment and HR issues. Johnothan has held a number of senior positions prior to his current role including the Head of Legal Services, South Pacific Region at Avaya Inc, and was a member of the Executive Management team of Candle Australia Limited (Australia’s second largest listed recruiter) as General Counsel and Commercial Manager.

ABOUT NAIMAN CLARKE

Naiman Clarke was established in 1999, and since this time has been driven by the desire to be the best specialised legal recruiter in Australia. We have always believed that the only way to achieve this goal is to consistently deliver results by providing creative solutions that exceed the expectation of clients and candidates. Naiman Clarke is now one of the largest, most knowledgeable and most experienced niche consultancies in the country. We strive to provide our clients with an additional resource in all aspects of their human capital management needs. Our integrated service offering covers all aspects of recruitment, training and development, performance management and remuneration planning.Our comprehensive range of services includes:• Permanent and Temporary Recruitment Services• Search and Selection• HR Consulting and other professional services• Training• Psychometric testingOur clients include blue chip multinational corporations, multi disciplinary practices, government, top and mid tier capital city firms as well as numerous boutique firms both in Australia and overseas.Naiman Clarke has offices in Sydney and Melbourne where dedicated consultants provide recruitment services for clients in Sydney, Melbourne, Brisbane, Canberra, Perth, Adelaide and Darwin. Our international consultants provide Australian candidates access to some of the leading international and local firms in the United Kingdom, United States, Europe, Asia and the Middle East.

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2010 naiman clarke in house market report

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