The Business of Law – Marketing and Business for Enterprising Attorneys

The news is full of one law firm after another announcing office closings, major pay cuts, lay-offs, mergers with other law firms, and worse yet, declaring bankruptcy.  Is our industry really that flimsy that we can’t weather this recession?  Or, is there a deep seeded issue at the core of our business model?

The answer is the latter.

Economic recessions are difficult to manage through, and it is not uncommon for perfectly sound businesses to run into short-term cash flow crunches.  In the business world, to triage these cash flow issues, companies turn to the capital markets.  Short-term bridge loans, follow on or down round financings and other capital investments are often the tools used to stop the bleeding until companies P&L’s stabilize.

For law firms, these options are simply not available.  That’s because Rule 5.4 of the American Bar Association’s Model Rules of Professional Conduct prohibits non-lawyer ownership of law firms.  Simply put, a non-lawyer investor cannot take an equity position in a law firm.

As a result, U.S. law firms have limited options when tough economic times take a toll on cash flow; solicit personal investment from its partners; merge; be acquired or fold.

Not surprisingly, recessions are not the best time to be raising capital from equity partners, so, mergers, acquisitions and bankruptcies have become common place.  The result is not only turbulence in the legal market, but instability in the provision of legal services.

This isn’t sustainable.

Like most rules, 5.4 came from good intentions.  The rule was created to ensure that lawyers did not prioritize profits ahead of the best interests of their clients.  Makes sense, right?

Here’s the rub.  The minute lawyers started taking fees for their services, practicing law became a business like any other.  As such, shouldn’t it be allowed to engage in the same kind of transactions that breed stability in other businesses?

What’s more, this is not just about stability during the seven lean years.  Accessing the capital markets would also help law firms grow and improve their businesses when times are good.   I’m talking investment in infrastructure, recruitment, technology, new offices, and identifying new areas of litigation.

Cue the “sky is falling” ethics crowd.  “Capital investment will bastardize this noble profession” they’ll cry, “making lawyers slaves to the almighty dollar at the expense of their client’s interests.”

First of all, that’s a rather romanticized view of the practice of law.  Last time I checked lawyers are motivated by compensation like anybody else.  In fact, law firms regularly compete aggressively with one another on compensation issues.  Secondly, who’s to say we can’t achieve a balance between running firms like businesses while preserving the duty to clients?

Don’t take my word for it. Law firms in Australia and the United Kingdom have already struck the right balance in accessing outside capital while still serving the best interest of their clients. And I’m pretty sure the skies over London and Sydney haven’t yet fallen.