How to: commit to collaboration

The legal market can be very much dog-eat-dog, but there are times when a client or a case requires firms to work together. So what makes a collaborative approach work?

The driver for collaboration can come from the type of case, such as a class action; from a client who wants its panel firms to work together to get the right expertise at the right level; or from law firms that see value in pitching for work together.

Clients are certainly becoming savvier in seeing benefits in their panel firms collaborating rather than competing for both one-off projects and retainer-based instructions. Funke Abimbola, Roche’s UK and Ireland general counsel, is proactive in suggesting her panel firms work together. The driver, she explains, is ‘less about cost and more about it being more efficient’.

Bristol-based TLT has made a feature of collaborative working on its website. It offers to stand behind a firm helping it deliver on a project or work alongside it, liaising directly with the client.

The firm has also formed specialist client service teams with fellow panel firms and developed and hosted extranets, from transactional deal rooms to longer-term sites that support online reporting, case-tracking and the sharing of knowhow.

Other examples include supporting a global firm on a multi-billion-pound mortgage book transfer for a major bank; operating a joint service with a magic circle firm to offer clients cost-effective rates on employment law issues, including sensitive high-level investigations and claims; completing a substantial document review project for a US-based firm; and collaborating with another firm on the disposal of a debt portfolio worth £25m for a UK clearing bank.

Managing partner David Pester says TLT has been working collaboratively for over a decade. ‘We were often on relatively small panels with a variety of firms – some specialist, some national and some City-focused – and we wanted to be more creative about the way work was resourced. It was also partly due to having some City alumni who still had links with their old firms.’

There is a danger it is just seen as a pricing exercise, he says, ‘but I see it as quite the reverse. While there is a competitive advantage for clients, it is about bringing the right resources at the right time. There is also a danger of it being pejoratively categorised as being segmented between high-value and low-value work – that is the wrong way to look at this. You need to look at it from a project management perspective.’

Collaborative working suits certain areas such as litigation, real estate and other specialist services associated with large projects. ‘If it is of a reasonable scale, it is easier to bring firms together to undertake different parts in a coordinated way,’ Pester explains. ‘Also, don’t assume it will be led by the largest firm. It may be down to experience and expertise.

‘What you don’t want is a scenario where people think they are collaborating but it is actually just about carving up the market.’

It won’t work either if a firm is frightened of sharing its knowhow: ‘You have to be broad-minded enough to realise that you are only as good as the service you are delivering,’ he says. ‘If you are worried about giving away knowledge, you probably have other things you need to focus on before talking about collaborating.’

Benefits of collaborating

For Jonathan Hoey, TLT’s national head of financial services disputes and investigations practice, there are four benefits: ‘The potential to reduce legal spend, which makes clients’ eyes light up; law firms with a limited local presence can get scale and resource; it spreads risk and gives clients a broader view of horizon scanning and best practice; and it can fill a specialism gap.’

Clients want project leads in each firm, a unified reporting service and clear, transparent billing stages so the process is seamless. To achieve that, you need to put in continual effort in getting to know those you are working with,’ he says. ‘Communication channels must be clear and you mustn’t promise what you cannot deliver. If an opportunity comes your way but it would be a stretch, have the guts to say this isn’t for us. If you go into a large-scale collaboration and are found wanting, the damage will be significant.’

Working together with firms you know and trust can still be challenging. But the potential pitfalls can be magnified exponentially when the collaboration is driven by a large class action.

Take the billion-pound shareholder litigation against the big high street banks – with infighting, firms coming on and off the record, and splinter groups breaking away – and it is easy to see where the dangers can lie.

David Greene, former president of the London Solicitors Litigation Association, is head of group action litigation at London firm Edwin Coe and worked on the Brexit challenge with Mishcon de Reya and other firms.

‘Problems can arise when clients have different agendas,’ he says. ‘You sometimes get that in shareholder claims where there are thousands of individuals whose claims are relatively small but they want their day in court, and institutional clients whose claims are huge but don’t want to end up fighting it out in a courtroom.’

There can be issues over recovering the costs of generic work which is split between firms. ‘You need to make sure it is sorted out up front, otherwise you can end up in a complex assessment where one firm is played off against another,’ he advises.

Mark Harvey, head of litigation at Cardiff-based Hugh James, regularly acts as lead solicitor or as part of the steering committee on major product liability claims.

He had been instructed in cases involving PIP breast implants when the news hit the media: ‘There was an immediate reaction from thousands of women worried about their implants followed by a feeding frenzy among the claims management companies and inexperienced solicitors who thought these would be easy claims to bring.’

Very quickly, he found he was no longer just working with a handful of other experienced practices but needed to coordinate more than 1,100 claims in what was clearly going to be a very complex case spread across 200 firms.

The challenge was to get a strong steering committee together: ‘Getting together the right colleagues who can share the load and draw on each other’s experience and resources is crucial. This was a very complicated piece of litigation with various settlements and decisions – and that it was extremely successful is a tribute to those on the steering committee.’

The committee placed adverts inviting every solicitor who had been instructed to a virtual meeting so the committee could seek endorsement for their case theory.

‘The greatest worry for me was that claimants were being instructed by inexperienced firms – hopefully the ban on referral fees will stop this happening in future,’ Harvey says. ‘The challenge was to stop those firms going off and ploughing their own furrow, and making the wrong claims which could have damaged all the other claimants. So I applied to the court for a group litigation order to bring some control to the situation and establish a register of cases.’

Under pre-Jackson rules, he says it is ‘crucial to get every client to sign a new CFA to sit alongside the one they have with their own solicitor to cover common costs, and ensure the wretched indemnity principle is protected so you don’t find at the end of the case that you can’t get your money back because one solicitor has messed up their retainer.’

With the post-Jackson cases, he got an agency agreement signed by the other solicitors to protect the indemnity principle.

‘It is easy to get instructions from one client, but when you effectively have 1,000 clients, you have to get the message to those other 200 solicitors who have to get the message to their clients and back to you in a set period of time.’ So, excellent communications are critical. But the added complication is that those communications need to be confidential. ‘Every communication I sent to an “outside” solicitor always included a disclaimer reminding them it is privileged information and not for dissemination,’ he recalls.

‘But in the era of social media and pressure groups, you have to assume every letter you write will end up in the hands of the defendants. Once my advice was reproduced on the solicitor’s website; they thought it was a clever way of keeping their clients involved! It was quickly taken down.’

There is a huge amount to coordinate. ‘It can come as a shock to firms who go on a steering committee for the first time,’ Harvey says. ‘They may do it for vanity reasons but they are then surprised by the amount of work and responsibility involved, as well as the huge expenses – you can spend £1m on disbursements which fall on the committee’s shoulders.’

Experienced practitioners do end up giving away a certain amount of their skills free of charge, he says. ‘A lot of people came into the PIP litigation not knowing how to pursue the claims and I think we taught a lot how to do this in future. It’s a little bit irritating because you may be making new rivals but, broadly speaking, if that means victims have more lawyers to choose from in the future, that must be good.’

On the other side of the fence, Lisa Fletcher, head of the occupational disease team at Hill Dickinson, acts for insurers and corporates and can find she is working with as many as 10 other co-defendant firms.

Strong relationships

‘We have claims which run across long periods of time for exposure, so lots of insurers are involved and you are working with firms who are probably competitors. You can almost immediately see where the pitfalls could be. But it isn’t about competing or wrangling, but providing the best service for your clients,’ she stresses.

‘It is about building strong relationships of trust with other panel firms, so if we don’t agree with a strategy or think something is over-reserved we can discuss it in a grown-up way.’

But what happens if someone from another firm slips up? ‘It hasn’t happened but I will imagine the horror,’ she says. ‘If someone misses a court deadline, for instance, which is detrimental to your client, you are still in the frame. I don’t think you can absolve yourself of responsibility.’

She has been doing the work ‘so long I am willing to help someone more inexperienced’, she says. ‘I can remember hearings when co-defendants were very kind to me. You take your legal points but it wouldn’t be my way – and I don’t think it is ever effective – to try to get something over on someone.

‘I am not saying that, because we all get on, we won’t take a hard line if need be. We might follow a strategy which could undermine a co-defendant – it’s going to be my evidence that the exposure was with you, not us – but they would expect that.

‘But what you don’t want to be is the person that no one wants to speak to on the phone, because that won’t help your client.’

Grania Langdon-Down is a freelance journalist