Safe in the knowledge

By Fiona Evans

A law firms sells knowledge and practical expertise in the law. The role of a know-how lawyer is to enable the firm to do so in a more effective manner. The objectives of the firm and the know-how lawyer are closely connected, and yet know-how has long hidden below the parapet, both within firms and in the outside world.
The climate is changing and many firms are now in the process of reviewing their know-how support. A few have emerged on the other side of the review. Many more of us are embroiled in a re-evaluation of what we need and how we are going to get it.
The focus of any review will, of course, be informed by the preoccupations of individual firms, as will the conclusions. The interesting fact is that so many firms, apparently independently of one another, have chosen to review the position now.

Why review?
The role of the know-how lawyer has existed for around 15 years. The longevity of the role, which in many cases was established with an eye to relatively short-term convenience, has brought it a momentum that was not widely anticipated. Moving from fee-earning to a know-how role is a respectable career move. Most fee-earners in large or medium-sized City or national law firms will have experienced the assistance that a know-how lawyer can offer, and entire pages in the legal press are devoted to specialist know-how lawyer recruitment. Even some clients have know-how lawyers.
It may be the maturity of the role that is prompting firms to review it, but other influences seem to be at work too. Ever-increasing competition for work and pressure on fees, combined with the need to do that work as efficiently as possible, while maintaining standards and controlling risk to an acceptable degree, inevitably leads to scrutiny of working practices. Management is certainly scrutinising the benefit to be gained from know-how lawyers, who are an expert, but expensive resource, which needs to be deployed to best effect. Clients increasingly ask for direct access to law firms’ know-how resources. Know-how lawyers themselves are pushing the boundaries of the role, which they may have seen develop beyond recognition since they first undertook it.

What do we need and how can we get it?
The traditional know-how lawyer was generally a former fee-earner taking on a less pressurised role in providing current awareness for fee-earning colleagues (usually via the medium of newsletters); collecting nuggets of advice or practice to be recycled as required, organising and sometimes delivering legal training, and writing and updating standard form documents. In return for relief from the pressure of fee-earning, the know-how lawyer could expect predictable hours, a reduction in salary and the opportunity to research interesting points of law. The fee-earners could relax in the knowledge that someone who understood their area of practice was sifting through the mountain of available information and passing on only what they needed to know; someone would know whether a particular wheel had already been invented; someone would spot opportunities for training and act on them.
The traditional areas of responsibility represent support that still needs to be provided, but – as previously observed – know-how lawyers are expensive and a know-how lawyer may not be the best person for some elements of the traditional job. There are more demanding tasks that make better use of the know-how lawyer’s knowledge and experience. Some of the online providers that used to contribute to the mountain of information now provide neatly-packaged current awareness services, and at least basic standard form documents of their own.
Our review started with the question whether we needed know-how lawyers at all. The answer was “yes”, but the role needed sharper focus. Know-how lawyers needed to be able to concentrate on high-value activities that made the most cost-effective use of their legal knowledge and experience, so we had to decide what we considered to represent ‘high-value’ – those activities that are important to the business and can only be performed by know-how lawyers – and what should happen to the other activities. The detail of what is important to the business is something that must be agreed with the partners in each part of the business, but we worked from a simple framework into which all the more specific activities fitted. The framework comprised:

Practice notes and standard form documents;
Legal training;
Advice (by which we mean acting as a sounding-board for fee-earners’ questions on legal matters arising out of their day-to-day work);
Client-facing know-how activities (generally, but not limited to, briefings and seminars).

Individual practice groups, offices and teams need different levels of support in each of these areas, but the basic requirement is that a know-how lawyer should be able to turn his or her hand to any of these activities with confidence. They are inter-linked and each informs the other in a virtuous cycle. Know-how lawyers are already embedded within the teams they serve. Constant exposure to fee-earners’ queries ensures that they cannot fail to remain up-to-date with topical issues; their experience filters through into the training they deliver and the documents they draft and maintain. Seminars for clients are a particularly rich source of insight for re-application back in the office.
After pruning out all the dead wood of the role, much inevitably remains to be done. To avoid recriminations, good communication is essential. The know-how lawyers themselves need to understand that their role has changed, and they will have to turn down requests they might previously have accepted. This depends as much on diplomatic but firm management from those leading the know-how team, including willingness to step in and arbitrate if there is a problem, as it does impact on the individual know-how lawyer’s inclination to act assertively. The clear communication is reinforced by following it through consistently into new job descriptions and revised appraisal criteria.
Fee-earners, especially partners, need to understand the change too. This is best achieved by ensuring there is partner involvement in establishing each know-how lawyer’s priorities by reference to the business objectives of the firm as a whole and the team in particular. If a fee-earner understands what higher objective is taking precedence over an individual request for help, the new regime is more likely to be accepted. Furthermore, the new regime will show results more quickly if the ground rules are clearly established at the outset.

What about everything else?
The concern that prompted our review was that know-how lawyers were performing activities inappropriate to their experience and cost. These fell into several distinct categories:

1. Things know-how lawyers should never have been doing, but had ended up doing by default because there were obstacles to delegation (and often noone to whom they could be delegated). Activities in this category include organising training, rather than simply delivering it; setting up intranet pages; feeding know-how databases; performing research that should have been done by trainees; 2. Things that are better done by other, more expert colleagues, but the distinction between their areas of expertise and the know-how lawyer’s has become blurred. Many requests for assistance cross the desk of a know-how lawyer, which would have been better addressed to business development, information services or even IT;
3. Things that formed part of the traditional know-how lawyer’s role, but which have become commoditised to the extent that they can be outsourced, as long as a reliable provider can be identified. The obvious example is current awareness, although the move towards outsourcing often needs to be handled sensitively, because current awareness has long represented the cornerstone of the traditional role. Even in practice areas where confidence in external sources is not yet high enough to justify outsourcing, an able paralegal is perfectly capable of handling most current awareness.
A secondary objective that followed from our review, therefore, was to ensure there was sufficient administrative support at the right level to allow know-how lawyers to delegate effectively. This need not mean an influx of paralegals, especially when current awareness can be outsourced. We aim to allow every know-how lawyer access to a paralegal, but we currently achieve this with a ratio of around one paralegal to three know-how lawyers.

The right people for the job
If you want know-how lawyers to spend their time on what you consider to be high-value activities, it goes without saying they need to be capable of rising to the challenge. This is not something that can be achieved overnight, but is the fruit of a sustained policy of recruitment and training. Even before the review, we had always set a high entry requirement to become a know-how lawyer. Unless there are mitigating circumstances, such as secondment to a client for a significant period of time, we like our know-how lawyers to have at least six years’ fee-earning experience after qualification. This requirement is based on the assumption that by that stage, the candidate will have practical experience of the most complex issues in his or her area, and a secure understanding of the underlying legal framework. We test the assumption rigorously at interview. Sometimes it takes longer than we might like to recruit the right person, but we have never regretted the policy.
Over two-thirds of our know-how lawyers have more than ten years post-qualification experience (PQE). This profile is sometimes cited as a weakness, based on the misconception that the longer a know-how lawyer has been away from fee-earning work, the staler and less useful he or she will become. With the model described above (know-how lawyers embedded within fee-earning teams and constantly exposed to the fee-earning environment), know-how lawyers never have the opportunity to become stale – they are not away from fee-earning but parallel to it.

Client-focused know-how
The renewed focus on high-value activities emphasises the importance of experience and the confidence that accompanies it. This is especially evident in the client-focused element of the role, although it is overstating the case to say that one should only recruit know-how lawyers whom one would be happy to put in front of clients. Despite the premise that all know-how lawyers must be able to perform to all four elements of the role, not everyone is equally at home in each. An expert writer of short, relevant briefings is just as valuable as a keen presenter of seminars, so long as the team, as a whole, includes the right balance of skills. To some extent, an imbalance can be corrected with well-targeted training, but (within reason) people must be allowed to play to their strengths.
What is clear is that the role of the know-how lawyer is no longer a ‘back-office’ one. Clients are becoming increasingly sophisticated in their expectations of their advisors. Beyond the advice for which they pay, it is common, especially for investment banks and large corporates, to request access to some forms of know-how support. The effective provision of know-how of a type, and in a form, clients find helpful, is a challenge. It is obviously counterproductive to bombard clients with low-level current awareness, devoid of any explanation how it might be relevant to the recipient. A know-how lawyer is well-placed to spot and develop an opinion on interesting and important topics, but however integrated with a fee-earning team the lawyer may be, no-one is better placed to highlight its application to a client than the fee-earner who has day-to-day contact with the client.
This emphasises the essential feature of really effective client-facing know-how. It is not something that should be undertaken by a know-how lawyer to the exclusion of a fee-earner or vice versa. Both will ideally be involved, as will business-development colleagues.
As mentioned before, there is inevitably more to do than a know-how lawyer has time for. Prioritising client-facing know-how initiatives is as important as any other know-how activity. It is not enough that such an initiative is seen as ‘a good thing’ because it is for a client – the business benefit of doing it has to be evaluated. As it happens, most of the four elements described above can be modified for client use relatively easily. This delivers the best return on investment – start with what your fee-earners need, then capitalise on it by adapting it according to what your clients will find useful.

Value and reward
The value of know-how lawyers has always implicitly been recognised by setting their salaries by reference to fee-earner salaries, even though they no longer directly generate fee-income. If know-how lawyers do not deliver commensurate benefit, they become an expensive overhead. The fact that they do not, on the whole, generate fee-income, makes it more difficult to identify tangible evidence of value, although it is possible to establish generic ways in which value may be added, such as increasing fee-earner efficiency and mitigating risk. The involvement of know-how lawyers in client-facing initiatives is a good, visible example of the benefit they can contribute.
A consequence of setting a high-entry requirement for the role of know-how lawyer is that PQE rapidly becomes irrelevant in determining salary and potential career paths. A six-year qualified lawyer may expect to join the know-how team on a salary discounted (increasingly modestly) from the fee-earner equivalent, but what happens when the fee-earner equivalent reaches the top of the associate salary scale? In most firms, career progression for know-how lawyers does not include partnership. Many know-how lawyers are happy not to be partners, but some would welcome a level of recognition to which ambitious high-performers can realistically aspire. Constructing a business case for this level of recognition represents a challenge in the absence of tangible, measurable value, and depends on the willingness of the firm as a whole to accept that know-how lawyers are a valuable resource. Focused, business-based objectives, especially ones that can be extended to clients, should be at the heart of the business case.

Fiona Evans is head of know-how at Norton Rose LLP. She can be contacted at fiona.evans@nortonrose.com