RISK MANAGEMENT and PROFESSIONAL INDEMNITY Legal Business May 2014 November 2010 Legal Business 3 RISK MANAGEMENT and PROFESSIONAL INDEMNITY
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RISK MANAGEMENT AND PROFESSIONAL INDEMNITY Legal Business May 2014 November 2010 Legal Business 3 RISK MANAGEMENT AND PROFESSIONAL INDEMNITY 50 Legal Business May 2014 Photographs DANIEL THISTLETHWAITE LEGAL BUSINESS AND MARSH UNINTENDED CONSEQUENCES Our annual Legal Business/Marsh risk round table saw law firm risk specialists share their views on the effect that greater scrutiny on financial stability is having on the market MARK McATEER he ghosts of Halliwells, Dewey & placed on firms by insurers and the SRA thing, while the laws applicable to LLPs LeBoeuf and Cobbetts still loom over financial stability? say quite another. large. Our 2014 risk management Sandra Neilson-Moore, Marsh: All of our report, published in March, showed client firms are being asked questions by Nicole Bigby, Berwin Leighton Paisner: A that a significant number of the UK’s the regulator around financial stability, lot of it is to be seen to be regulating what the Ttop 100 law firms have received more than one borrowings and partner compensation. The SRA feels is a public interest issue. If there visit from the Solicitors Regulation Authority SRA is, of course, trying to accomplish two was another significant collapse, it would (SRA) in the last couple of years and financial key things: one, to preserve the reputation of be criticised for not having asked these stability has rapidly moved to the top of its the profession and two, to secure protection questions, or not, at least, demonstrating agenda. In June 2013, the regulator announced for clients. In my view however, (and that it was taking an active interest, so that 160 firms across England and Wales were notwithstanding its best intentions) the there is a measure of self-interest and self- under intensive supervision due to the state of SRA will probably be no more able to spot a protection about it. Perhaps the efforts will their finances and of those, 20% were so-called struggling firm about to go under than the also have some measure of risk avoidance ‘high-impact’ firms – those in the top 200. insurers are. On the other hand, the insurers for the profession, at least, by virtue of Respondents to our survey also observed in the space we deal in – ie the top 100 UK- ensuring that people’s minds are focused more scrutiny from insurers over financial based law firms – got on this ‘bandwagon’ on that; the partners and the firms know prudence when they were negotiating the not so much because of Halliwells or that they are going to be subject to a level renewal of their cover in 2013. With this in Cobbetts, but because of Dewey & LeBoeuf. of scrutiny. I’m not convinced whether or mind, our annual risk round table gathered They thought it was something nobody not the SRA’s efforts are proportionate, some of the industry’s leading risk management saw coming. targeted or relevant, or even really force specialists to discuss the effects that this The insurers have a little bit more to worry the SRA to take more balanced risk heightened awareness towards financial about also, because the minimum terms and decisions, but at least the board and stability is having on firms’ behaviours, as conditions (MTC) say that if a firm cannot pay the firm are aware there is somebody well as other agenda-setting issues in risk its excess and the claimant has a valid claim, asking questions. management. The impact, in many cases, is at the insurers have to pay the claim from the times unintended, but nonetheless significant ground up, ie pay the excess. It is reasonably Emma Dowden, Burges Salmon: Even if for both risk management teams and the well known that at least one insurer is going you touched on an area [during the SRA industry as a whole. after the partners of failed firms personally, visits] that was entirely irrelevant to your in an attempt to get the excess paid by the firm, it was still explored. There wasn’t Mark McAteer, Legal Business: What is your partners individually. I imagine that will that customised approach. It was very experience of the level of scrutiny being wind up in court, because the MTC say one standardised and structured. u RISK MANAGEMENT AND PROFESSIONAL INDEMNITY ‘In ten years’ time I do not think that an ABS funded by external capital will be the norm for a large law firm.’ u Andrew Carpenter, the way that they address financial stability Marsh: From what I issues. That is good for the profession as a hear, the questions are whole. It doesn’t make a big difference for getting more informed, large firms, who already concentrate on this though; the SRA is heavily, but it’s right that we provide this learning and becoming information along with everyone else. The more knowledgeable. changes to tax treatment of LLP members is The insurers, by asking driving some law firms – not DLA Piper – to for information that put more partner capital into a business. could be six or seven If a large group of partners want to move months out of date, do at one time, then depending on the size of not get an up-to-date the firm, it could result in destabilising the picture of the firm’s firm financially. The government has now financial position. increased this risk to the profession. David Whitney, Bird Mark McAteer: Mark [Jones], as a former & Bird: The latest risk managing partner who is now a partnership update from the SRA consultant, are the new HMRC rules talks about financial [governing fixed share partners in LLPs] stability, but in a the most risky area in terms of financial different sense. It seems management for law firms at the moment? as though the SRA is moving on from looking Mark Jones, Addleshaw Goddard: I do not at financial stability as see the HMRC proposals as a risk management a subject on its own and initiative. It is a revenue generation initiative; is now looking at the it is about tax. As I understand it, HMRC’s link between financial estimate is that it will generate £3bn to £4bn instability and other in year one and, in terms of budget allocation, characteristics. The that has already been ‘spent’. update talks about the A number of aspects of the LLP legislation incidence of fraud and have not yet been tested in the courts. other wrongdoing. I Take LLP insolvency. As a result of recent just wonder if the SRA insolvencies, we now understand that, while feels as though it has losses lie with the LLP, terminal loss relief ‘I will watch with great sent the message – it goes back to the individual partners, not to probably understands the LLP. For the creditors of the business in interest to see whether the there is only so far it liquidation, there is a mismatch there. That, can go repeating the to me, is more of a risk management issue big accountants succeed same warning – and it than the HMRC’s ‘disguised employment’ is now looking for other proposals, but it is driven by the law of this time, because they have connections. unintended consequences, because, at the time, the legislation was brought in in a hurry tried it before. Let’s see if Amber Matthews, DLA and no one thought it through. Piper: Knowing that There are parallels with the evolution ABS changes things.’ firms have an additional of the role of the SRA over the last few reporting obligation to years. Whether we like it or not, we are in a Sandra Neilson-Moore, Marsh the regulator may cause regulated environment. Whether we like it or some firms to reflect on not, we have a regulator. There are tensions 52 Legal Business May 2014 LEGAL BUSINESS AND MARSH Today’s partners do well when they sell 50% of the equity to private equity, but that is a big disincentive to the partners of tomorrow. David Whitney: We were talking about unintended consequences earlier. I sense that one consequence (unintended or not) of the ABS revolution is that law firms are looking for other ways of delivering services even if they do not intend to embrace an ABS itself. So the focus on ABS licensing has changed the playing field and the mindset of the market. Against the background of the service and delivery developments we have seen in the last two to three years (eg nearshoring, virtual chambers of solicitors and new contract lawyering services), I suspect that many firms are feeling the pressure to evolve through innovation. I see that as the real winning result of the ABS revolution, not the actual creation of the ABS structure itself. Emma Dowden: That is market-driven. It is about pricing innovation, client demands and client service. PwC will be Mark Jones, Addleshaw Goddard: LLP insolvency legislation of more significance an interesting entrant, because it has the than HMRC’s proposals scalable infrastructure, systems, knowledge and power to do that on a big scale. That is where it could be more interesting than the that had not been thought through and the Mark Jones: Look back ten years to the predominantly niche ABSs that have been SRA and law firms are wrestling with the introduction of the LLP act. Since then, the licensed so far. appropriate resolution of them. LLP has become ‘the norm’ as the trading The one aspect of the HMRC guidance vehicle for a large law firm. Look forward Sandra Neilson-Moore: It will be interesting that I still cannot get my head around is the ten years.