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Bermuda firms watch the digital assets space

Please give us an overview of the current legal market in Bermuda and how any recent developments have impacted your practice?

Bermuda’s legal market has been subject to a recent spate of growth with new participants entering the market. As attorneys with an existing practice, we have to continue to ensure that our clients receive quality, commercial advice in a timely manner.

A whole raft of legislative change is being introduced to ensure that Bermuda meets international standards in a sensible way, but continues to be an attractive place to do business. We have contributed to the form of those changes and evolved our practice as a result. For instance, we have been advising clients in the digital asset space, which is becoming a growing industry and presents many exciting opportunities.

What significant trends exist in the M&A market presently? Are you seeing these just domestically or internationally as well?

M&A activity in Bermuda continues to focus more on quality than volume.

Domestically, we have seen certain business lines, notably insurance, remain active targets for M&A work, but we are also seeing a demand for targets operating in corporate and administration services. We are necessarily impacted by international trends as many cross-border transactions involve Bermuda holding companies.

In terms of distilling a key theme, transactions tend to be effected more by way of a straight share sale (where there is an English market focus) or merger (where there is a North American market focus) rather than by way of amalgamation or scheme of arrangement.

What are the three biggest challenges to practising M&A in Bermuda at the moment?

Bermuda is very fortunate in that it has a very flexible statutory framework which can accommodate or mirror structures that advisers in onshore jurisdictions are familiar with and wish to implement. There are certain nuances between the rules of different jurisdictions and we work hard to ensure that those nuances don’t stop us from getting the deal done.

We frequently work on transactions where onshore counsel is leading the commercial discussions and main transaction documentation. As Bermuda counsel, it is key to ensure we give advice that shares our experience of the market in Bermuda, which is necessary to complete the transaction, without being seen to overstep by our instructing counsel.

How does M&A fit into the firm as a whole? Is it easy to collaborate with other teams?

In a firm like ours M&A fits well. We have several teams (corporate, dispute resolution, employment, etc.) that can bring their specializations to the table to give the client the best possible advice. Collaboration is easy and everyone involved is aware of the quick turnaround required on M&A matters. The spate of Bermuda-based insurance company mergers showcased this perfectly as we advised groups with a substantial physical presence and a significant number of employees, which required a collaborative, interdisciplinary approach to provide all of the advice our clients needed.

In addition to the internal team, there are often accountants, investment bankers and other professionals involved, with collaboration across different time zones. Because of this, it is important that clients hire firms like ours which have hands on deck 24/7 and the expertise to be a one-stop shop.

What advice would you give to the next generation of M&A lawyers?

Junior lawyers must pay attention to detail. M&A deals are high pressure and fast paced. Junior lawyers should take their time and review their work. It is always better to do the task slowly and thoroughly once, than have your hastily completed document being sent back multiple times with corrections and amendments.

There is also a temptation to give undue deference to precedents. Precedents are a tool, not a template. If a lawyer doesn’t understand a provision in the precedent, it is absolutely key that they don’t send the finished document out until they do as that provision may not be required or even be appropriate for that transaction.

What are your predictions for M&A in Bermuda over the next five years?

There have been a significant number of M&A deals in Bermuda recently, particularly in the (re)insurance sector. We expect this trend to continue due to the ongoing soft-market conditions, the impact of technology (particularly Insurtech), and the US tax reform at the end of last year (which has caused some divestments of non-core onshore business). In addition to these factors, the pursuit of capital efficiencies, market reach, and other strategic needs in the reinsurance space are all key factors driving the current consolidation trend.

If the digital asset market develops in the way in which people hope, five years may well be enough time to start to see established players seeking opportunities to grow, identify synergies and combine with others in that sector.

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Lawyers, it’s #TimeToTalk about your mental health

Two thirds of UK adults feel they have nobody to talk to about their problems, a survey by mental health campaign Time to Change found earlier this year. More than a third of 2,500 people said they could never find the right time to raise their problems with others; 28% said they could not find an appropriate venue to raise their worries; and just under a quarter said they had waited a year for the ‘perfect’ time to discuss their issues.

Lawyers, with their high-pressure lifestyles, are not immune to mental health issues and the difficulty of talking openly about them. In 2017, LawCare received nearly 900 calls from 616 callers, an 11% increase on 2016. Nearly half of the solicitors and barristers who contacted the legal mental health charity for help cited depression (17%) and workplace stress (27%) as the reason for the call.

Other issues cited were disciplinary concerns (8%), anxiety (7%), bereavement (7%), financial problems (4%), and bullying and harassment (4%). The remaining 33% of calls included worries over chronic illness, alcohol and drugs, career development problems, and relationship issues. The majority of callers to the helpline were women (65%) and 45% were trainees or had been qualified five years or fewer.

As LawCare’s CEO, Elizabeth Rimmer, said in a statement: ‘These figures show that more lawyers are willing to come forward and ask for help.’ However, despite the increasing weight of evidence that lawyers need to take care of their mental health – and open up about issues such as stress, anxiety, or depression – it remains a taboo subject in many law firms and chambers.

That is why the recent #TimeToTalk campaign is so important, as it allows those who have suffered – and who continue to suffer – to share their accounts of what it is like to live with mental health issues and see that it is okay to speak about them. So, in the spirit of this campaign, I add the tale of one young lawyer who, on condition of anonymity, has agreed to tell their story. The following account is in their own words.

‘I was a trainee in a corporate team working in a particularly high-pressure environment. After receiving a dressing down from a partner one day I found myself trudging toward the tube in the midst of a panic attack. All I wanted to do was to get back home, hand in my notice, and never go back to the firm again. But then I started thinking about my family’s reaction. I had long suffered from anxiety, a condition that had nearly ruined my law finals. Now, I was once again a mess; a failure prepared to throw all they had worked for away.

‘As I stepped onto the tube platform a train pulled in and a thought popped into my head out of nowhere: all I needed to do was take one more step off the platform and the pain and frustration I was feeling with myself, and the expectant disappoint from my family, would be over.

‘Obviously I didn’t take that step, but the realisation that throwing myself in front of a train was a viable option scared me more than anything else has before or since that moment.

‘It was the height of summer and between my tears and profuse sweating (another side effect of anxiety) I was sopping wet by the time I got home. I realised that I needed to get help before I could go back to the law. In my mind I equated that moment on the platform with working in that office, on that case, with those others around me. So I got help. I’m not fixed, far from it. I still have my bad days, but I’m back at work and things are definitely better and speaking about my experience with others has definitely made a difference.’

The young solicitor above would have obviously benefitted from new guidance published earlier this year by the Junior Lawyers Division which recommends law firms appoint ‘mental health first aiders’, wellbeing champions, and mentors to ensure staff are not suffering in silence. Likewise, aspiring barristers competing for pupillage will now benefit from wellbeing support on a new online resource launched by the Bar Council’s Wellbeing at the Bar Working Group last December. But firms, chambers, and individual lawyers can and must do more to help their colleagues when they are most in need, and arguably sooner rather than later.

Ahead of the upcoming World Mental Health Day (10 October 2018), which this year looks at young people and mental health in a changing world, LawCare’s Rimmer said: ‘Research suggests that you start thinking like a lawyer and absorbing the cultural norms of the law on the very first day of your law degree, and it is our duty to better prepare young people for the demands of this challenging profession.’

Already, 29 certificates of recognition have been awarded by the Bar Council to acknowledge the range of activities that many chambers, specialist Bar associations, and Inns have introduced to support the wellbeing of barristers, clerks, and chambers’ staff. Here’s to more sets and law firms following suit, and to better health in the profession over the years to come.

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The number for the LawCare helpline is 0800 279 6888.

This article was first published in February 2018 and has been updated for fivehundred.

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If you want lawyers to do a better job for you, tell them a story

I was recently corresponding with general counsel of a technology company who was bemoaning the lack of what he called ‘the basics’ from his law firms – understanding his company, the importance of the matter in the context of their situation, and how to best work with his team. I asked whether he provides feedback to them if they haven’t met his list of ‘basics’. ‘No,’ he said, ‘I just ghost them’.

As a business development and strategy consultant to law firms, I spend nearly half my time listening to partners discuss the increase in competition for legal work, the flat or reduced legal budgets of in-house counsel, and the rise of the procurement function. I tell them they can no longer rely on distinguishing themselves based solely on capabilities or expertise; that they have to focus on improving the client experience for in-house counsel.

I spend the rest of my time interviewing in-house counsel for articles, surveys, and client interview programs. While the majority are happy with most of the legal work they receive from their firms, most have complaints similar to those of the ghosting GC. Good to excellent legal acumen, but a lack of corresponding client service and client experience skills. And they always have a horror story of sorts to share with me.

Sometimes in-house counsel shorthand this by complaining about price. Yet when I dig deeper, the supporting comments clearly point to a lack of comparative value. One counsel, for example, indicated: ‘Way too much was charged, and the work-product was not on point. They didn’t listen well.’ Another corroborated: ‘It was the hourly rates and the amount of time spent on minor matters by senior attorneys charging the highest hourly rates… but not accomplishing any real results.’

An entire industry of procurement, pricing and project management has grown up around the increasingly obvious divide between what the clients want and what is being delivered. However, those efforts tend to be focused on negotiating lower rates (on the company side) and protecting the billable hour or profit margin (on the law firm side). They are not rooted in improving the actual experience of the in-house counsel when they work with outside law firms and lawyers.

Given the strong appetite of law firm lawyers to maintain their current client relationships, expand the work, and develop new relationships, you would think they would focus more heavily on developing these skills. The problem is not one of disinterest, however. Whenever I speak with partners, they espouse a belief in providing the highest quality of client service, and I believe they are earnest about it.

So what, exactly, is the disconnect? It’s as simple as not really understanding what in-house counsel truly need and what they actually do for a living. So what can you do as in-house counsel to get a better experience and work-product out of your firm?

The best way to help firms improve the client experience is to use a technique that forces them to experience their services from your point of view. One such technique, known as client journey mapping (CJM), has been used successfully by corporations across industries and around the world. There’s a good chance your company currently uses this technique with its own clients, and we’re beginning to see the most forward-thinking law firms use it to serve you better.

CJM, unlike process and project management mapping, is a visual representation of the steps and perceptions that you, as an in-house counsel, go through over a period of time to accomplish your goals. The law firm’s contribution is recast in a supporting role, in service of your broader goals, objectives, and activities.

The key to effective CJM is in its granularity. The firms don’t just listen to your objectives, or even your broad goals as an organisation, they are required to map out the steps you take in your role to accomplish an objective. This granular examination allows for more precise diagnosis, invites more specific conversations about places for improvements, and better reengineering that may include areas not normally addressed with other diagnostic tools. CJM helps identify the stages at which problems surface, as well as the stages of origination. It also helps identify the bright spots – all the places where the firm is performing well – and should be replicated elsewhere.

At PP&C Consulting, we have led CJM exercises with a number of firms; bringing in-house counsel into the room to work with partners and engage in this exercise. Counsel took an hour to describe a specific real matter in detail, stage by stage to their lawyers. In turn the partners had to map out the matter, identifying its various stages, as well as the expectations, challenges and potential new solutions for each stage of the matter. The partners indicated they not only gained a more nuanced understanding of the issues
in-housers faced at various stages of the matters discussed, but also a more sophisticated insight into the considerations and pressures that were top of mind for counsel. We are now speaking with several in-house counsel who are interested in engaging in a similar exercise during their own ‘law firm day’.

How exactly do you go about getting your firms to engage in this program and how do you implement it? Start small. Begin by bringing in a small number of lawyers from a firm or two. Put them in a room with members of your team. Ask your team to prepare a story about a recent matter handled by an outside firm. The team should stay away from generalities – outside counsel have heard them before and without specificity, they don’t have any reason to believe they are not being responsive, efficient and commercial. The team should also stay away from directly confronting the outside lawyers about matters they’ve handled. The team should describe the matter from their point of view, including details that do not touch upon the interactions with outside counsel.

Tell the outside lawyers listen and take notes. After hearing the stories, they should be able to both report back on the facts as well as the feelings (yes, feelings!) of your team members. They should then be tasked with identifying the source of the challenges the outside firms may have caused or could help to overcome. Working together with the in-house team, they should brainstorm ways in which firms can work more effectively. The stories and ideas for improvement should be documented. You can use formal mapping documents such as the ones shown or you can make your own.

The process may appear daunting at first – and this may seem like the latest marketing craze – but the concept behind it is really simple: the better a law firm understands your journey, the better positioned that firm will be to help you in a more sophisticated manner. Not only should you make law firms do this, they should want to do it. Better client experiences lead to higher satisfaction and the holy grail of client loyalty. That’s good for you, and good for them.

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Yolanda Cartusciello served as the chief marketing officer at both Debevoise & Plimpton and Cleary Gottlieb Steen & Hamilton, and is now a partner at PP&C Consulting