Hildebrandt/ Citi Client Advisory: Slow Growth For Law Firms in 2010

Considering the contraction in 2009, this isn’t as newsworthy as it might appear. In fact, there is little evidence 2010 will be much better than 2009 according to the Advisory:

“However, while the profession is no longer in crisis mode, we recognize that firms will remain under intense pressure to create new models for pricing and delivery of legal services,” DiPietro said in a news release. “The report addresses these issues as well as the industry’s response to the current market environment.”

I suppose this will lead to another in depth discussion of alternative fee arrangements.  How novel.

Some highlights:

• Realization continues to drop in spite of efforts to raise rates to offset drops in demand;
• Pressure for discounting, fee caps, multi-year rate schedules and alternative pricing increases;
• Increases in “negotiated” rates are being offset by drops in “collected rates”, leading to the lower realization;
• Firms chose to cut expenses, especially compensation costs, to offset losses (a typical reaction);
• Biglaw firms fared better than smaller firms, mostly due to dramatic purging of staff and cost controls;
• Significant improvements seen in 2009 in demand for Mergers and Acquisitions, general corporate, tax, capital markets, and real estate practices;
• Expect further cost cutting measures in 2010 (ie, not likely to be a boom year for technology vendors seeking to encourage firm investment in technology).

A look at the effects on key profit drivers:

• Productivity still in negative growth “driven to some extent by associate pushback on the unsustainable billable hour requirements in many firms”;
• Leverage is increasing to make up for declining productivity (which makes no sense as this drives up costs without adding value);
• Realization, as earlier stated, is in steady decline;
• Expenses had been a source of continual growth until 2009;
• Growth prior to 2009 was consistently driven by rate increases between 6 to 8 per cent annually;
• Expectations for future rate increases are low due to increased client resistance.

The Advisory mentions something that I have touted for years:  the need for improved efficiency to maximize profitability.  During the boom years, it enhanced an already profitable model.  Now, it will be a necessity to offset rate stagnation.

Legal Current has more on the advisory.  To read their take and download a copy of the Advisory, click here.

Are Law Firms Ready For Rate Deflation?

After hitting 5% in July of 2008, inflation has dropped rapidly and is now in negative territory (annualized) for the first time in 54 years.  This creates tremendous spending opportunities but there are many risks.  One of the risks to law firms is a deflating billable rate.  With deflation hitting most aspects of the economy (food and energy being notable exceptions that at least in the latter case isn’t expected to deflate for a while and in fact may be the next credit “bubble” if, err, I mean when cap and trade is passed), it is only a matter of time when clients will either request more discounts or a reduced rate – and if clients don’t ask, other attorneys will offer lower rates to lure new clientele.  Many businesses will be working from much tighter margins while the cost of doing business, including defending lawsuits, won’t lower with their margins.  Something will have to give – either longer A/R outstanding or reduced rates.

It may not come.  But there is reason to believe it will.  Attorneys from large law firms who have been laid off are finding themselves entering the mid-firm market and some enterprising ones will start their own firms, determine a model that maximizes profit, and “Wal-Mart” some out of business while still raking in incredible profits.  All it takes is better efficiency in serving clients (and, in my view, an unprofessional but very business-like approach to targeting and accepting clients).  The relationship you have with your clients puts you at an advantage right now.  However, in forecasting models you should prepare for a fight for your business based on  rate.    

If you are faced with reducing rates to keep clients, efficiency is key to making up the lost revenue.    Don’t rely on volume alone as it can fool you into thinking you are in a better financial position than you are.  You may end up hiring excessive numbers of attorneys, especially as the costs of attorneys goes down (another inevitability that is already happening – salary reduction for new associates).  If you are still making minimal margins because you are too busy to implement efficient processes and you get undercut by someone willing to lower their rates, your firm will be in for a rather intense correction.

Even assuming rates don’t increase, there is a high probability that any planned rate increases will be difficult to implement.  Firms have been contracting for several months and most have already cut costs as low as they can.  A reduction in rate is an unplanned occurrence that can place even more pressure on firms to reduce costs.

From the firms I have consulted, most are still unwilling to invest in efficiency – rather, they are placing more emphasis on productivity and staff reductions.  There are a few firms who are changing their model to streamline processes – those who invest in better procedures will not only be in a better position to absorb rate stagnation (or deflation) but will be in a better position to increase profitability later this year when the economic numbers start to improve.  The test will be whether they retain earnings, a concept that is anathema to many firms.

Please note that due to the activism of the Federal Government to re-inflate the credit markets, there are arguably two possible results:  massive inflation or another asset bubble (which will lead to a result similar to what we are experiencing now).  Either way, the pattern of erratic markets is not likely to end anytime soon and with trillions being poured into the economy, money may get loose for a while – smart firms will invest in their firms (take advantage of the deflation) and set aside sufficient amounts to take short hits on revenue rather than make distributions (in case of a rapid spike in inflation or another asset bubble).  We are in for a long period of uncertainty.  Universal health care, carbon emission taxes, and of course the obvious tax increases to pay for the action taken already and to sustain the new entitlements.

Law firms will not be needed less (and in fact in some areas they will be needed more) but they are not immune to shifts to the economy.  There will be areas of rate inflation but your firm may not be one of the beneficiaries.  Some areas of law that have flourished for decades will suffer greatly and some boutique firms will cease to exist entirely.

Prepare for it.  If your firm flourishes and all the doom and gloom above doesn’t come to fruition, great.  Your bottom line thanks me for helping you have such a strong equitable position during your time of saving – go buy a new touch screen whiteboard or make a distribution so you can pay for all those projects at home.  If the firm struggles, however, you may avoid having to make decisions that are not only uncomfortable but can lead to a fracturing of the firm.

Measuring Missed Time

According to a 2007 study by Ipsos Reid, people gain on average one hour of productive time per day by having a Blackberry.  That is an average of 250 hours per year!  Regardless of whether an attorney has a Blackberry or not, it isn’t a stretch to say that attorneys miss at least one hour of billable time per day.  At an average rate of $200 per hour, this can result in lost value of up to $50,000 per year per timekeeper!  Recovering “lost” time can help increase profitability as well as provide leverage opportunities.

The problem is establishing the habit of timekeepers entering time regularly.  As in every other area of law firm management, measurement improves performance.  Using a Missing Time Report, such as the one shown below (click to enlarge), can help timekeepers get into the habit of paying attention to their time spent serving their clients and making sure they are recording the time spent on such activities.

In this report, the timekeeper can see the days they missed during a range of days – whether it be a month or week or whatever the time range entered.  A gauge is a good graphical method of tracking time entered for the range – in the case of the report to the left, it is looking at a month’s range.  The minimum hours is set to 167, or just over 8 hours per day.   Any day that the timekeeper does not enter 8 hours is shown, as well as the average rate on the day the time target was missed.  This will be used at the end of the report to determine value of the time missed.

The report also shows, per timekeeper, the total number of days where the time target was missed and the total hours entered for the range of dates.  The report should be flexible, however.  As much as we would like attorneys to enter time daily, some are stuck in the habit of recreating time at the end of the month and, if they are equity partners, they can minimize the value of this report by explaining that it doesn’t take into effect their total hours at the end of the month.  Therefore, the report should first filter out any timekeeper that, over the entire range of dates, records the minimum time expectation regardless of whether it was put in daily or all in one day.  If the firm decides that it wants to enforce daily time entry, that is fine.  The report just needs to be flexible in the event that the firm can’t enforce such a measure.

Finally, the report summary should show what timekeepers are accounting for the lost time, as a percentage.

This way you know who may need additional mentoring (or needling) in developing good time recording habits.  To emphasize the importance of recording your time, add  in the report summary  the total days where the target wasn’t missed, the total time missed, the average rate of all timekeeper time lost and the value of the time lost (the total hours missed multipled by the average rate).

Click on the graph to the left to see it in action.  If you are interested in using reports like the one described in this post, please feel free to email me or call (205) 588-4622.

Process Modeling: Putting To Print Things That Work

For most firms, knowing what needs to be done to effectively manage a case is something learned through time and experience.  Unfortunately, this valuable information is rarely put to print for others to follow.  The result is constant “reinvention of the wheel”.  For associates, how well you can swim after being thrown in the shark-infested pool determines whether you become partner, career associate or looking for other work.

Likewise, if there is staff turnover, how quickly they are up to speed on your processes will determine how long it takes for productivity to reach or exceed pre-turnover levels.

Modeling your processes provide a concrete method for everyone in the firm to know not only what is expected, but why the expectation is in place and how to go about performing the task(s) in a manner approved by the firm.  This has several benefits, not the least of which is a reduction in the “change curve” time,  improved efficiency and the increased capacity to scale.

There is, of course, a process to building the process model.  The first step is to outline all of the processes in the firm.  This includes administrative processes, practice-related processes, client and matter-related processes, and any other process that pertains to firm business.

Once outlined, those who have the experience must brainstorm and put to print all the years of experience that has taught them to know on instinct what to do as the work-flow meanders from question to question.  Mapping this visually helps to find the gaps and gives you the opportunity to take out redundant tasks which may cause bottlenecks that reduce efficiency.

The example to the left is a mapping of a collections process (click on it to view in full screen).  It started with just picking a point in the process, going through the steps, then reading and re-reading to fill in the gaps and add in the details.

Once you have the process visually mapped, the next step is taking each step and reviewing why it is there.  The “why” helps to confirm that the step is necessary – if you can’t figure out why a step is needed, then it isn’t needed.  The “why” is also for new employees or others who may have to temporarily perform the task later.  One of the complaints I often hear from partners has to do with the lack of “ownership” some in their firm have towards files given to them.  In my opinion, a lack of understanding the entirety of the file is one reason an associate may do subpar work.  Thus, part of the process of taking a file from a partner should include a thorough reading of the file, paying particular note of certain things the partner always looks for to help understand the important issues in the file.  Although this is obvious to those with experience, it may not come as second nature to new associates or staff.  The “why” helps them see it from the partner’s perspective without forcing the partner to lose productive time in having to explain it.

This has more than one benefit.  Although highly unlikely (tic)¹, it may be that the partner’s time tested process may miss out on a detail or two that an enterprising associate or support staff discovers.  In cases such as this, having the “why” helps the associate or support staff understand the purpose and he/she then can propose process enhancement, furthering continuous process improvement².  (This can be encouraged through upward reviews).

After providing the “why”, the next part is the “how”.  Use a step-by-step approach so that others can follow the process in an easy-to-understand manner.  An example approach for a collections process would be:

1. Sort AR for collectible and non-collectible accounts;
2. Distribute to responsible attorneys to determine if any should be held from normal process;
3. Determine age of oldest unpaid  invoice;
4. If older than:
   1. 30 days – go here
   2. 45 days – go here
   3. 60 days – go here
   4. etc
5. etc

After completing this tedious but necessary list, model it visually through a tool like Microsoft’s Visio.  An example output for a part of the above process might look like this:

After review of the processes to ensure they are appropriate and are easy for others to understand, make it easily available for your staff to access.  In today’s connected world, this means access through a web browser.  Your site should be easy to access from within the network and should be easy to navigate.  An example site may look like the below (shown without theme – in practice it may mimic your external website’s design):

Besides the benefits discussed above for modeling your firm’s processes, there are quantifiable reasons as well that can lead directly to the firm’s bottom line.  For example, you can assign an amount of time it should take to perform a certain task.  Having this information available allows you to set baselines for performance reviews (efficiency of employee versus the firm efficiency standard).  It also gives the firm an opportunity to offer different billing options to clients; for example, if a client desires more cost certainty, the firm can offer a flat rate based on how long it takes to perform the tasks in a typical case, taking into consideration the facts and the potential to vary from the norm.  You can then add your margin to this number to provide a fee that is both acceptable to the client and ensures profitability for the firm.

As you can probably note from reading the above, modeling your processes is a tedious and time-consuming process in itself.  However, the benefits of taking the time to map, model and follow your processes shouldn’t be understated.  Not only will it improve the manner in which work is performed, but it can bring measurable benefits to your bottom line.

Of Counsel Consulting can help your firm map, model and price your processes so that you attain maximum benefit for taking the time to further the goal of continuous improvement.  Please feel free to call or email us for more information.

______________________________________
¹ tongue in cheek – Go Back
² The idea of continuous process improvement isn’t new but is laid out nicely in a book written by Tom Pryor called Using Activity Based Management For Continuous Improvement that I recommend. – Go Back

Forecasting Attorney Revenue

Forecasting is important for law firms so that they are not found “accidentally” out of business.  There are tools available, perhaps within your own organization, that are more than capable of helping you forecast attorney revenue.  However, some tools are better than others at showing the results.

Below is a graphic showing attorney monthly productivity, any variance from the budget and the attorney contribution percentage.  Clicking on any of the attorney initals changes the data to show the chosen attorney’s productivity numbers.  (You must have the free Adobe Flash Player to view.  You may download it by clicking here).

Graphical dashboards such as the one below provides an easy way for managers to stay informed as to the critical performance drivers of the firm without having to pore over rows of data.  This, in turn, makes the information more actionable and thereby helps focus the firm on reaching its goals.

Feel free to click on any of the sample attorney initials below to see the data change.  If you would like more information on how you can have dashboards like the one below implemented in your firm, please feel free to email me or call 205.588.4OCC (4622).

False Sense Of Security Still Prevalent Among Law Firms

In spite of overwhelming evidence that the booming economy enjoyed practically uninterrupted for the past 20 years has ended, at least for the near term, many law firms are still optimistic of their 2009 prospects.  I beg to differ.  I believe 2009 will start a strong shift in the make-up of many law firms due to the lack of any planning for the economic conditions.

Who can blame attorneys for being optimistic?  Regardless of the economy since at least the early 1980′s, lawyers have enjoyed consistently increased business and profits.  This has led to a complacency and a denial of the economic conditions that are facing the country.

Law firms aren’t alone.  In fact, the “big three” auto makers (Ford perhaps excepted) are acting out of a similar denial as they attempt to scare Congress and the President into paying for their internal problems.  Who didn’t see the failure of GM coming?  Was no one noticing the extravagant pensions being offered to the employees?  Did anyone who dared notice believe the ever slimming margins would cover the ever growing benefits?   Not likely.  As the Legislative and Executive branches delve deeper into the phantom pockets of our tax base, a  nice summary of the fallacy of “avoiding acting like Herbert Hoover” has been inked in an opinion piece by Todd J. Zywicki in the Wall Street Journal.

Law firms, though not nearly in the long-term slide as the domestic auto industry, is more sensitive to this economic downturn than many attorneys would like to admit.  Many firms have been spoiled by margins that exceed 50% without spending more than a passing glance at the indicators that led them to such bounty.  The issue isn’t so much a drop-off in business, though some firms who specialize in areas that are in the midst of collapse will certainly feel the pain.  Rather, the issue is how firms will retain good talent, retain their expected incomes and avoid layoffs of associates.

These are regular issues for most industries but are foreign to the mid-size law firm.  Many firms pride themselves in their “family” atmosphere, which includes the bratty sibling rivalries that are tolerated when times are good.  Salary incongruousness may seem a bothersome itch when profits are high, but once the deadwood becomes heavy the scratching becomes intolerable.  Some may panic to find their balance sheet showing a loss without ever seeing it coming.  Drastic change is put into place – at a time no worse to prepare.  No more is it wise to visit a market when hungry than to suggest change while in the midst of a spiral.

Yet our economy has afforded all of us time to prepare.  It was suggested by many (myself included as far back as March) that our economy was in for some hard times.  Firms with the foresight and gumption to plan and hold timekeepers accountable for providing not only quality service to their clients but ensuring prompt billing and payment for the betterment of the long term financial health of the firm are in a position now to profit over the firms who were complacent.

It’s not too late, however.  Many firms are just now seeing the first bumps in the road.  It is my opinion that the economic downturn is just now really beginning to hit middle America.  The massive layoffs (over 533,000 in November) are an indicator that the many months of body blows caused by the collapse of the credit and housing markets (not so unlike what happened in the late 1920′s, speaking of Herbert Hoover) are finally taking its toll.  The question now is, where is the bottom?

No one knows.  That is a troubling concern that should make you want to hug every dollar your firm receives and not let go of it.  In times such as these, power goes to those who hold cash.  This may change if our government attempts to over-spend its way out of our economic downturn (thereby devaluing the dollar, leading possibly to hyperinflation combined with stagnant productivity – a prescription for the “d” word), but as of right now, many believe that the economy should rebound sometime in 2010.

In my opinion, firms need to pay more attention to the profitability of each fee earner and place more emphasis on marketing activities and their key profit drivers.  Please feel free to email me (by clicking here) if you would like some ideas on how to not only retain your current income, but increase profits during an economic downturn.

Consumer Price Index Plunges In October

The consumer price index plunged “by the largest amount in the past 61 years” in October.  This may be an indicator of a very deep recession, if not a depression.

A depression is characterized in part by a persistent, sustained, deep, general decline in production. They are typically preceded by a deflationary crash.  A deflationary crash is characterized in part by a persistent, sustained, deep, general decline in people’s desire and ability to lend and borrow.

Deflation requires a precondition: a major societal buildup in the extension of credit (and its flip side, the assumption of debt). Austrian economists Ludwig von Mises and Friedrich Hayek warned of the consequences of credit expansion, as have a handful of other economists, who today are mostly ignored. Bank credit and Elliott wave expert Hamilton Bolton, in a 1957 letter, summarized his observations this way:

In reading a history of major depressions in the U.S. from 1830 on, I was impressed with the following:

(a) All were set off by a deflation of excess credit. This was the one factor in common.
(b) Sometimes the excess-of-credit situation seemed to last years before the bubble broke.
(c) Some outside event, such as a major failure, brought the thing to a head, but the signs were visible many months, and in some cases years, in advance.
(d) None was ever quite like the last, so that the public was always fooled thereby.
(e) Some panics occurred under great government surpluses of revenue (1837, for instance) and some under great government deficits.
(f) Credit is credit, whether non-self-liquidating or self-liquidating.
(g) Deflation of non-self-liquidating credit usually produces the greater slumps.

Self-liquidating credit is a loan that is paid back, with interest, in a moderately short time from production. Production facilitated by the loan – for business start-up or expansion, for example – generates the financial return that makes repayment possible. The full transaction adds value to the economy.

Non-self-liquidating credit is a loan that is not tied to production and tends to stay in the system. When financial institutions lend for consumer purchases such as cars, boats or homes, or for speculations such as the purchase of stock certificates, no production effort is tied to the loan. Interest payments on such loans stress some other source of income. Contrary to nearly ubiquitous belief, such lending is almost always counter-productive; it adds costs to the economy, not value. If someone needs a cheap car to get to work, then a loan to buy it adds value to the economy; if someone wants a new SUV to consume, then a loan to buy it does not add value to the economy. Advocates claim that such loans “stimulate production,” but they ignore the cost of the required debt service, which burdens production. They also ignore the subtle deterioration in the quality of spending choices due to the shift of buying power from people who have demonstrated a superior ability to invest or produce (creditors) to those who have demonstrated primarily a superior ability to consume (debtors).

Near the end of a major expansion, few creditors expect default, which is why they lend freely to weak borrowers. Few borrowers expect their fortunes to change, which is why they borrow freely. Deflation involves a substantial amount of involuntary debt liquidation because almost no one expects deflation before it starts.

Inflation this year has crept up to a peak in July and has stayed at or near 5% ever since, until October, when it plunged to 3.66%. We all know that the oil prices have been deflationary for the past few months and it appears this is the driving factor in the deflationary prices.   I personally haven’t seen prices (other than gas) get lower, especially food.

However, given the above, the question may shift from whether inflation will eat at your bottom line to whether deflation eats away at production and dries up your clients’ ability to pay.  Based on the above, the best bet is to hold on to as much money as possible and to the extent you hold assets that are devaluing, consider liquidating to cash.  Prepare for lower income for the coming years and offset the loss in revenues by keeping your firm in sound financial condition so that you are better able to help serve your clients without the struggle of wondering how you will pay your employees.

The way to do this is to identify areas you believe will affect your income next year.  There are plenty of indicators out there but any prediction is just that.  The lower the expectation, the better opportunity to absorb worse conditions.

After you have identified where you will lose and make money, focus on assigning resources towards strategic targets that you believe will improve revenue.  Although never a fun endevour, it is time for hard decisions related to re-aligning your staff to optimize your ability to serve your clients during a time when cash flow may be strained.

Implementation must be consistent and applied universally.  This of course is the most difficult part of any change, but the future your firm, and/or your best talent, may depend on it.

As always, measure against your forecasts and in this case, worrying about others is irrelevant.  Focus on your own predictions and work towards achieving your own goals.  What happens with other firms can be compared after the economy recovers.

I’ve never lived through  a depression.  I am not sure I can even fathom it.  However, I do recognize the plethora of signs that our economy is not just taking a temporary hit – it is part of a global downturn marked by the largest expansion of credit in history.  Something others have noted invariably lead to deep losses in production.  And there is no denying that there will be massive layoffs in the coming year and our auto industry is facing its own collapse.  Production can’t improve in this environment.

Plan accordingly.

The Role Of “Effective Rate” To Law Firm Profitability

There are 6 main profit drivers for all law firms:  Rate, realization, leverage, margin, operating expenses and cash flow.  Rate can be tracked in several ways.

• Standard rates are rates you would charge a client, all things being equal.  These are typically your highest rates.
• Worked rates are your actual rates you charge a client.  Worked rates are affected by client negotiation or perceived need to reduce rates to stay competitive.
• Billed rates are rates after you invoice a client.  Billed rates take into consideration both mark-downs and discounts.
• Collected rates are the final hourly fee after the invoice has been reduced to a zero balance.  Collected rates take into consideration write offs and other post-bill adjustments.

Rate can be measured from standard to billed or worked to billed to judge how well you are converting your work to invoiced fees.  These rates are measured on an accrual-basis.

Rates can also be measured from billed to collected.  These rates are measured on a cash-basis.

However, to get a full view of what happens to your standard rate as work moves through the billing cycle, firms need to measure the effective rate.  The effective rate can be measured either from standard to collected or worked to collected.

Measuring effective rate means creating targets, forecasting results, and holding your fee earners accountable for results.

The below chart shows how you can measure effective rate.  Click on the graph to download.

Survival Planning For “Accidentally Successful” Law Firms

Measuring profitability is more important now for small and mid-size law firms than ever.  In the past, lawyers have been able to yield large profits without understanding or measuring the drivers of their profits.  Some called it being “accidentally successful“.   Regardless of whether you want to look at your firm as primarily a business or a profession, competition will be more fierce for dwindling reliable clients.  Although a well positioned law firm can take advantage of economic downturns, improper management may cut so far into your margin that the firm doesn’t thrive – which can lead to an exodus of talent.

More and more regional and national firms are marketing heavily on the Internet that will be competing for your clients – and some of these firms can price you out of business.  Flat fee and “value billing” firms have spent the time to determine the amount of resource cost each task takes and invests in technology to be the most efficient in producing.  They then build in their margins to maximize profit.  They advertise their efficiency as superior service (and it is in some compelling ways) and offer money-back guarantees.  Clients then have the ability to forecast legal costs through cost certainty.

This is what I call the “walmarting” of the legal industry.  Whatever you may think of these firms, they won’t do anything but take your best talent to man a local office and let your firm wither – much as the old hardware stores did once Walmart came to town.

Those who survive either adopt their methods or focus on client relationships to compete.  It wasn’t long ago when the mantra was “those who don’t embrace technology won’t survive”.  I believe that those who don’t embrace performance measurement, accountability and planning will have great difficulty surviving the altered marketplace for legal services that will be the result of both undesirable economic conditions and “value bill” law firms.

Even a simple strategic plan may be the difference between a firm that survives and one that fails.  I recommend a book sold through the ABA called The Lawyers Guide to Strategic Planning.  You can get a copy by clicking here.

No plan is effective, though, without management.  Of Counsel Consulting is dedicated to helping law firm managing partners develop plans and implementing them, allowing fee earners to focus on practicing law and maintaining the rewards, both professionally and financially, of providing quality legal services.

How The “Market Meltdown” Affects Your Law Firm

This past week has been a scary time for the financial markets.  According to democrat Senator Chris Dodd last week, “we’re literally maybe days away from a complete meltdown of our financial system, with all the implications, here at home and globally.”  The New York Post reported that traders were “500 trades away from Armageddon on Thursday” with pre-open sell orders inundating the market and forcing the fed to pump $105 billion into the market to avoid a total collapse of the financial system.   There is little question that last week was historical.

I don’t believe that the end of this crisis is near.  The Executive Branch, along with the Federal Reserve, is planning a “bailout” (or what I would rather call a “clean out”) of the albatross of bad mortgage debt that is seriously deprecating the value of bank collateral and causing institutions to stop lending to each other.   Some are saying upwards of $1 trillion.  You can add another trillion to that (UPDATE:  Try $30 trillion).  And this is to just keep our financial system from collapsing.

The damage has already been done.  Our economy will be feeling the effects of the past week well into next year – and perhaps for several years to come (and I am not counting the effect of the massive printing of money to pay for the bailout).

What caused this to happen?  And how does it affect your law firm?  

In the Friday (September 19th) Wall Street Journal, William M. Isaac, chairman of the Federal Deposit Insurance Corporation from 1981-1985, wrote an opinion piece titled “How To Save The Financial System“.  Mr. Isaac compared the current crisis with the one he faced when chairman of the FDIC – at that time, the prime rate was 21%, the savings bank industry was insolvent more than $100 billion, “the S&L industry was in even worse shape, the economy plunged into a deep recession, and the agricultural sector was in a depression.”  3,000 banks and thrifts failed.  However, if the rules that are in place now were in place then, Isaac argues, it could have been much worse:

The country’s 10-largest banks were loaded up with Third World debt that was valued in the markets at cents on the dollar. If we had marked those loans to market prices, virtually every one of them would have been insolvent. Indeed, we developed contingency plans to nationalize them.

The economic conditions of the current crisis were nowhere near as bad as it was then.  What caused an estimated 20% loss to mortgage debt to institutions that held them to bring our financial system to the brink of collapse?  Isaac believes “[t]he biggest culprit is a change in our accounting rules that the Financial Accounting Standards Board and the SEC put into place over the past 15 years: Fair Value Accounting.”  

Fair Value Accounting dictates that financial institutions holding financial instruments available for sale (such as mortgage-backed securities) must mark those assets to market.

The rule can be a boon for an asset when times are good.  However, a company must also “mark the assets to market even though there is no meaningful market”.  Even though the value of the assets are depressed because of market conditions, not actual value of the asset, regulators have still required that accountants continue to mark down assets as the market tanks.  This has led to heretofore financially secure banks to go to the brink of bankruptcy within days of bad news.  Isaac argues that regulators must suspend such rules when the health of the industry is at risk.  

On November 15th, 2007, Fair Value Accounting was officially enacted by the FASB in rule FAS 157.

Isaac also argues that regulators should suspend the “naked selling” (or short selling a stock without possessing it).  Late last week it was announced a ban on short selling altogether.  This sweeping measure was met with opposition by options traders, who argued that the ban was “a draconian measure that will result in the sudden and severe removal of liquidity from the marketplace.”  The argument is that disallowing short selling altogether prevents investors from learning the real value of a company – in essence, taking away information from investors – and thus will discourage investment.  Isaac only argues for the ban of “naked selling”, not all short selling.

Finally, Isaac argues that the new Base II regulations, though perhaps too new to have caused this crisis, must be suspended before they make matters worse:

Basel II requires the use of very complex mathematical models to set capital levels in banks. The models use historical data to project future losses. If banks have a period of low losses (such as in the mid-1990s to the mid-2000s), the models require relatively little capital and encourage even more heated growth. When we go into a period like today where losses are enormous (on paper, at least), the models require more capital when none is available, forcing banks to cut back lending.

Contrary to the rhetoric coming from both Presidential campaigns, the problem hasn’t been lack of regulation – but the regulations (and regulators) themselves.  At this point it is academic, and any remedy will not undue the damage done.  What firms need to do is prepare for cash flow problems in the near and long term.

As with any economic slowdown, transactional practices will suffer and litigation will do well.  However, if lending dries up, firms need to confront the possibility of losing significant numbers of corporate clients.  They also need to confront the high probability of clients having difficulty paying their bills.

As law firms are typically the bottom of every client’s stack of invoices (due to the lack of late fees and interest – unless you are one of those who actually charge for lack of payment), it may be a good idea to consider retainer billing your corporate clients.  Retainer billing simply requires a certain amount to be paid up front and set off against work performed.  When the retainer goes below a certain amount, a letter is sent to replenish the funds.  This ensures cash flow and, in coordination with setting budgets for services, can provide clients with some cost certainty – something corporate clients will be requiring with more and more frequency.

If your firm hasn’t addressed receivables that are over 90 days and don’t have a coherent, consistent, and reliable collections process, the time is now to develop and implement one.  It may be the difference between your firm managing a difficult economy and becoming a victim of it.

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