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74% of respondents cited “regulations and enforcement” as their top concern in the most recent Morrison Foerster General Counsel Up-at-Night Report.

Coming at regulatory burdens from a different direction, legal scholars Michael Bommarito II and Daniel Martin Katz found that regulatory references in 10-K filings had increased 4X between 1994 and 2014 (after analyzing more than 160,000 10-K filings with the SEC).

To those (like me) who believe that regulators impose excessive burdens on American businesses large and small — U.S. Supreme Court Justice Anthony Kennedy may have offered a ray of hope yesterday.

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EPA, IRS, FCC, and other agencies — whom the High Court has called “the administrative state” — “wield vast power and touch almost every aspect of daily life”. And for the past three decades a judicial doctrine called “Chevron deference” has afforded these agencies considerable insulation from legal challenges.

In Chevron, U.S.A. v. Natural Resources Defense Counsel, Inc. the U.S. Supreme Court established the harmless-sounding principle that a federal court should defer to interpretations of statutes made by those government agencies charged with enforcing them, unless such interpretations are unreasonable.

However innocuous in theory — many view “Chevron deference” as more akin to a blank check for bureaucrats than a careful delineation of delegated congressional authority. As Chief Justice Roberts put it in a case where he dissented from Chevron‘s application:

“We do not leave it to the agency to decide when it is in charge.”

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Lola v. Skadden, Arps arose from a lawsuit in which a plaintiff demanded massive disclosures of documents of a specified description. This meant that the defendant had to review thousands of documents to respond.

David Lola was a licensed lawyer hired on contract by the law firm Skadden Arps to perform those document reviews.

Later, Mr. Lola sued Skadden Arps for overtime pay. Skadden Arps contended that the relevant statute — the Fair Labor Standards Act — precluded overtime pay because the work consisted of “the practice of law”.

The prestigious Federal Court of Appeals for the Second Circuit refused to throw out the suit:

“The gravamen of [the attorney’s] complaint is that he performed document review under such tight constraints that he exercised no legal judgment whatsoever — he alleges that he used criteria developed by others to simply sort documents into different categories ….

“A fair reading of the complaint in the light most favorable to [the attorney] is that he provided services that a machine could have provided ….”

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A few years ago the Washington Post published an article entitled, “There Really are 50 Eskimo Words for ‘Snow'”:  ” … ‘Aqilokoq’ for ‘softly falling snow’ … ‘piegnartoq’ for ‘the snow good for driving sled’ ….”, etc. An Inuit living above the Arctic Circle needs to be precise in describing something so vital to daily survival.

So for a company concerned with its legal health in the cold litigation and regulatory climate of the United States in 2018, it’s too bad that the legal industry has only two words for professional talent:

“Lawyer”, and

“Non-lawyer”.

(And most lawyers aren’t all that excited about substantial delegation to anyone not bearing the title “lawyer” — more about that below.)

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It’s too bad because effective delivery of legal services to a client company requires more skill sets than lawyers’ limited, two-word vocabulary can describe:

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The law firm of Milbank, Tweed, Hadley & McCloy recently announced that it was raising the annual salaries of its first year associates to $190,000. Other large law firms are doing the same.

Instead of a business-like, matter-of-fact, decisive refusal to pay lawyer rates for the work of brand-new law graduates who are lawyers in name only — many clients who sign off on the legal bills of law firms participating in this $190,000 move … are feeling upset.

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So writes Caroline Spiezo in an article of the above title appearing last week in the journal Corporate Counsel:

“Corporate Counsel reached out to a number of in-house leaders following Milbank’s announcement to gauge their reactions. Many opted to remain anonymous, but all displayed strong feelings about this development. Here are their responses, some of which have been lightly edited for clarity and length.

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I’ve long admired the work of Jordan Furlong, a distinguished Canadian lawyer who analyzes and forecasts changes in the legal services market for law firms and legal organizations.

His twitter post yesterday:

“Most invoices from law firms aren’t really ‘bills’ — they’re lists of claims against the client made by any lawyer who could find a way to touch the client’s matter for at least six minutes.”

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In my most recent blog I considered the respective entries by PwC (the former Pricewaterhousecoopers) and by Deloitte into the U.S. market for legal services as an initial and expanding “crack” in the “wall” that protects U.S. law firms from Big Four competition.

And because this blog and my law practice focus on securing and maintaining the legal health of client companies — I wrote that I hoped for more and deepening cracks in this pernicious wall.

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It turns out that Heather Suttie — a leading Canadian consultant to legal practices both in law firms and in the Big Four outside of the U.S. legal market — had made some timely observations a week before Deloitte’s recent announcement. As an advisor since the early 1990s both to law firms and to Big Five / Big Four accounting firms that have contained law practices she has a depth of perspective about Big Five / Big Four offerings of legal services that few in the U.S. share.

Her thesis: The Big Four enjoy substantial competitive advantages over law firms in delivering legal services to business:

” … Each of the Big Four professional services firms is armed with internationally recognized brands, legions of professionals of numerous descriptions, infrastructure that has been built up for the last 30 years or more, access to significant and sophisticated business tools and systems, and capital resources and financial acumen to run efficiently and effectively.

“The Big Four are also equipped with four big advantages that, in many cases, remain elusive to law firms ….

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After offering legal services for two or three decades elsewhere in the world — the Big Four accounting firms (PwC — the former Pricewaterhousecoopers, Deloitte, EY — the former Ernst & Young, and KPMG) are now taking tangible steps to move into the U.S. legal industry.

Last Wednesday (June 6) Deloitte UK and the San Francisco-headquartered immigration law firm of Berry Appleman & Leiden LLP (BAL) announced an agreement that gives U.S. businesses market access to Deloitte Global’s immigration legal services worldwide — including the U.S. — while adhering to the traditional rules that have insulated U.S. law firms from Big Four competition.

This comes on the heels of PwC’s formation nine months ago of a new law firm called ILC Legal in Washington, D.C. — the first entry into the U.S. legal market by a Big Four firm (see here).

These initial moves by two of the Big Four could signal a tectonic shift in the competitive landscape for legal services in the U.S.

As prominent legal consultant Bruce MacEwan put it after PwC’s announcement last year:

“[The Big Four] have incredible resources in terms of capital, thousands of high-powered professionals, brand equity, and entrée into every Fortune 1000 board room ….

“If the Big Four want to come at Big Law, they can. And they will be pretty successful.”

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In my most recent blog I recounted an interview with BASF Corporation’s General Counsel, Matt Lepore.

In that interview Mr. Lepore described how he went about ditching the arbitrary taxi meter of hourly billing.

And he described how he secured lower costs and client-friendly incentives through alternative fee arrangements.

I invite your attention again to his words — and I emphasize something that Mr. Lepore slipped in at the end of his interview:

“Whether you are Fortune 100, or a small start-up, if you have a legal need that requires outside counsel expertise, and you have some budget assigned to your department, you can use alternative billing. Maybe you won’t define value the same way that BASF, Microsoft, or GSK would, but you certainly don’t need to value the services you need based purely on an attorney’s hourly rate. And, in my view, you will not be getting the most efficient work product if you do.”

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I’ve said many times that the legal industry’s business model is based on the sale of attorneys’ hours: The value of lawyers’ work depends on how much time they take to perform a task. This model benefits law firms’ economics but it’s bad for the client. It results in unnecessarily high charges, overstaffing, and incentives to inefficiency (see here, here, and here — among other posts).

The client company has zero price visibility until the work has already been finished.

And — despite much happy-talk about the “death of the billable hour” and “widespread” adoption of alternative fee arrangements [i.e., some arrangement other than the billable hour] — the billable hour is the legal industry’s standard for pricing its work (see here and here).

So … is it practical for a corporate client to ditch this wasteful practice? If so, what does that look like from the client’s perspective?

Zach Abramowitz of the law company Axiom met with Matt Lepore — BASF Corporation’s general counsel — to talk about this.

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Yes — but you need to know where to look for the innovation.

And it’s early days.

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My last post cited the numbers in two recent empirical studies to show that law firms are not innovating (with exceptions distinctly in the minority).

But that doesn’t mean that there is zero innovation in the legal industry.

The best treatment of this issue that I’ve seen came from Mark A. Cohen in an article he wrote for Forbes last year: “‘Legal Innovation’ Is Not An Oxymoron — It’s Farther Along Than You Think”:

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