A couple of weeks ago I posted a “modest proposal” to regulate BigLaw. This post generated a fair bit of stimulating conversation. What’s interesting is that many seem to have taken my proposal at face value rather than the intended satire. 

First, let me reference the discussion it spurred:

  • GC’s May Be Complaining, But Do They Really Want Change? at Adam Smith, Esq. reproduces a long conversation thread from invitation-only Legal Onramp, where my blog post was cross-posted and triggered numerous interesting comments.
  • Carolyn Elefant at Legal Blog Watch comments on “GC’s May Be Complaining”
  • Tiffany’s And The Billable Hour by Patrick J. Lamb also comments on it.
  • John Wallbillich offers a Rejoinder.

    • Second, in case there is any doubt, my original post was satire. Beyond the Swiftian reference to a Modest Proposal and Madame Smythe play on Adam Smith, consider the satirical points I made and the truth:

  • Countless law departments have voted with their dollars, switching firms, and, and privately and publicly explaining their quest for better value. Yet large law firms refuse to budge.
    In fact, very few GCs ever publicly announce firing a firm because costs are too high or value too low.

  • Rampant standardization has failed. The standard documents of ISDA (International Swaps and Derivatives Association, Inc.) is only one of hundreds of instances of clients coming together to simplify and standardize. Yet bills continue to mount.
    In fact, ISDA and one VC web site are the only examples I have found of standardization.

  • The Tyco arrangement with Eversheds, which introduces various metrics and carefully crafted payments to illicit particular law firm behavior (link to Legal Week article), is only one among many such agreements. No market impact.
    In fact, the Tyco – Eversheds agreement, if not unique, is only one of a handful like it, not one of many, hence all the press it receives.

  • Law departments have invested heavily to create best practices, for example, how to manage outside counsel, checklists for transactions, empirical studies on reducing discovery costs, and regularly using risk analysis in litigation. Law firms ignore these well-document guidelines and every effort at enforcement.
    In fact, I am not aware of more than a couple of examples (at best) of law departments promoting best practices and then trying to enforce them.

  • Law department frequent use of non-lawyers and lawyers in India has no affect.
    In fact, relatively few law departments have systematically used non-lawyers or offshore lawyers.

  • Large law firms have bid up the price of talent, shutting out the ability of law departments to hire.
    In fact, law departments can hire law school grads at the same price as law firms do – they just have to be willing to spend the big bucks.

    • For those interested in the market power – or lack thereof – of GC, I suggest reading the references above. My take away is that it says quite a bit about market perceptions that more than a handful took my supposed assertions at face value. My satirical intent was to illustrate that GC have market power that they choose not to exercise.