THE LEGAL PROFESSION: A STRATEGIC LANDSCAPE

– VIEWS FROM THE FRINGE

Michael Nicell, Graduate Business School, Griffith College, South Circular Road, Dublin 8

POSTGRADUATE PAPER – STRATEGIC MANAGEMENT

Telephone: +353 1 415 0494

Email: gbs@gcd.ie

ABSTRACT

Based on an MBA dissertation, this paper explores business strategy in the Irish legal

profession. A Policy Delphi approach is used to paint the strategic landscape of the

profession. This facilitates exploration of the tensions between opposing strategic

perspectives and facilitates the generation of ideas by legal professionals as to how law firms

could make a desired approach more appropriate and feasible. By setting out simple steps

towards building a more coherent and sustainable approach for professional firms, this

research leverages the diversity and creativity that is abundant in the profession. Such

creativity can help firms move beyond a focus on short-term profitability to overcome the

challenges now faced by the profession.

Key Words: legal profession; professional services firms; strategic tensions; strategic

paradoxes; dialectic discourse; policy delphi; mixed methods research

WHERE TO FOR THE PROFESSIONS IN IRELAND?

The professions are experiencing significant upheaval and

uncertainty at the moment. Susskind’s (2013) drivers of

change (Figure 1) and reduced revenue from challenging

economic conditions precipitate short-term survival

responses of rationalisation, redundancies and mergers

(Power 2011). Law firms also face the radical regulatory

changes of the Legal Services Regulation Bill (Binchy 2012).

WHERE CAN STRATEGY FIT IN?

Through an evaluation of individual professionals’ approach to strategy, I explore how the

legal profession is set up to deal with these forces and other dynamics within the profession.

As the legal profession in Ireland has not been explored with academic rigour before, I

designed a conceptual framework to serve as a foundation for further analysis and to deliver

on the threefold objectives of this research, namely:

1. To generate an impressionistic “strategic landscape” of the legal profession

2. To understand the rationales behind lawyers’ competing perspectives – or tensions

3. To find bilateral solutions for strategic adaptability in the fringes of the profession

An interweaved discussion of results and findings helps illuminate the competing priorities,

perspectives and values in the profession – and even within firms. The picture of how firms

operate should also resonate with those procuring professional services, despite inherent

limitations in the research, due to the lack of secondary data and the multifaceted ambition of

the undertaking.

Figure 1: Drivers of change –

adapted from Susskind (2013)

PURPOSE

PROCESS

CONTENT

CONTEXT

STRATEGY TENSIONS AND DIMENSIONS

The conceptual framework in Figure 2 combines

the following two frameworks:

1. Strategic Tensions, incorporating purpose,

process, content and context, adapted from

De Wit & Meyer (2010)

2. Dimensions, from Stewart’s demands-

constraints-choices model (1982)

Strategic Tensions

De Wit and Meyer (2010) set out ten strategic tensions (see Figure 3) as a methodology for a

dialectic exploration of strategic perspectives, to eliminate bias and provide a framework for

mapping and contrasting a spectrum of strategic perspectives1.

Each tension operates between two competing perspectives: for example, in Organisational

Purpose, the demands for economic profitability and social responsibility might influence

organizations’ priorities differently. The rationale of this approach is that synthesizing the

tension, reframing the dilemma or

trade-off as a puzzle or paradox,

generates win-win solutions, like

the Body Shop’s agency of social

change securing competitive

advantage (Bartlett & Ghoshal

1994).

1 Since completing this study, De Wit and Meyer did adapt the strategic tensions to include one more (2014), but

the study was based on the ten from the 2010 edition of their book (2010)

Figure 3: Strategic tensions (de Wit & Meyer 2010)

CONSTRAINTS

CHOICES

DEMANDS

Figure 2: Conceptual framework

Dimensions

Mintzberg’s (1975) pragmatic re-evaluation of Fayol’s planning, organising, commanding,

co-ordinating and controlling functions (1930) led to Stewart’s demands, constraints and

choices model (1982), of different influences on managerial decision-making. These

influences provide a lens for exploring the dynamics underlying the strategic tensions, and

are reflected in the survey as dimensions: appropriate, feasible and desirable (see Figure 4).

RESEARCH DESIGN

Philosophy

Taking a pragmatic approach by letting the objectives determine the research method used

(Shields 1998), it emerged from preliminary interviews with professionals (i.e., potential

subjects) that mixed methods would be needed:

Quantitative data would map professionals’ perspectives (or positions within the

conceptual framework) onto a strategic landscape;

Qualitative data would explain the dynamics and influences at play behind these

perspectives, as well as ideas generated on how to accommodate competing

perspectives – an academic variation of ‘crowdsourcing’ – partially structured through

a questionnaire and focused interviews based on the subjects’ survey responses.

Methodology and Staging

The Delphi technique could have served as a useful method of seeking consensus on the

issues (Dalkey & Helmer 1963); however to understand what lay behind the differences in

perspectives rather than just push for a consensus , I designed a Policy Delphi variant, which

canvasses the views of participants initially before exploring what lies behind differences in

opinion (Linstone & Turoff 1975). Using a sample largely comprised of solicitors, educators

and regulators (at varying levels of seniority), it was staged as follows:

1. Piloting: developing survey design through informational interviews

2. Delphi One: survey on tensions and dimensions using a six-point Likert scale

Comment boxes were provided for participants to explain their responses

3. Delphi Two: questionnaire on the rationale behind survey responses

4. Delphi Three: crowdsourcing interviews to elicit ideas for resolving the tensions as

trade-offs, puzzles or paradoxes, providing strategic opportunities for law firms

5. Quasi-Judicial Forum: presentation and defence of research before an expert panel

Delphi One: Surveying the Legal Profession

The primary collection was through a survey, with adapted Strategic Tensions2 laid as a

dialectic using a Likert scale for opposing perspectives, with participants indicating which

perspective was more appropriate, feasible and desirable (the Dimensions).

I used evocative quotes sourced from a variety of well-known figures as heuristics, to make

the questions vivid and accessible (Kahneman 2012), such as the example shown in Figure 4:

Figure 4: Delphi One Survey - Sample Question

2 The tension in Strategic Thinking was changed to Analysis v Experience; in the Organisational Context,

Devolution was substituted for Chaos

This proved largely successful, with 73 people completing the survey. A 22% drop-off was

mostly due to survey recipients not being in current practice or on vacation. Given that the

survey involved thirty very challenging questions, this was very encouraging, as was the

interest shown by those who expanded on their responses in the comment boxes.

Even using quantitative methods, I did not seek statistical reliability but rather to paint an

impressionistic landscape of the profession that I could explore through a questionnaire and

interviews. This survey yielded rich data, identifying which perspectives were more

appropriate, feasible and desirable, as well as the rationale behind the outliers’ positions.

Delphi Two: Dialectics and Discourse

Applying the Delphi technique (Dalkey & Helmer 1963), I shared the results, highlighting

any minority views the participants had disclosed and seeking explanation (see Figure 5).

Figure 5: Delphi Two Questionnaire - sample

The intention was to target those in the fringes of the profession, whom I referred to as

outliers, in this instance to be focused on and not discounted, for two reasons: firstly, the

fringe is where future changes would originate (Kleiner 2008); secondly, canvassing

alternative viewpoints is essential to combat the kind of groupthink (Janis 1972) that can lead

to hubris and the premature demise of institutions (Bénabou 2012).

Delphi Three: Dialectics and Discourse

In the next stage, I interviewed some of the more interested participants for their views on

how a professional firm might be able to traverse the dialectic and reconcile the tensions – a

form of ‘crowdsourcing’ ideas that was structured automatically by links to survey questions

and which I grouped thematically, reflecting the tensions and ways of reframing them.

Quasi-Judicial Forum: Quality Control

In order to ensure the quality of my research, the integrity of my analysis and relevance of my

findings, I presented my research to an expert quasi-judicial forum, made up as follows:

1. James McCourt, President of the Law Society of Ireland

2. Eugene McCague, former Managing Partner of Arthur Cox Solicitors

3. Michael Flynn, Director MBA Programme, Trinity College Dublin

4. Caroline Murphy, Owner of LegalWise Consulting

The discussion that followed drew out some interesting perspectives, with a lively debate

arising from some provocative comments from one interview contributor on collegiality,

which I discuss under my first finding; inquiries about how I managed the risk of bias (the

conceptual framework was designed partially to eliminate bias). During a frank discourse

about the notion of organisational purpose, a rhetorical question was aired that went to the

heart of the profitability-responsibility debate for professionals, particularly considering that

solicitors’ mere existence could be seen as a by-product of an essential social function of

helping citizens navigate our complex legal system and enforce their rights:

“Is facilitating foreign direct investment in Ireland a worthwhile purpose?”

RESULTS AND FINDINGS

Four headline findings emerged from the study, which are

set out in Figure 6, and include:

1. The diversity of perspectives within the profession

2. An incoherent and inert dominant strategic profile

3. The ascendancy of the economic imperative

4. Creativity within the profession available to be tapped.

Finding 1: One size fits one

Given that the profession might be assumed to be

monolithic and is regulated relatively uniformly, the

diversity of views that I encountered might seem incongruous. Of the thirty different

perspectives – from absolutely in favour of social responsibility to slightly favouring a global

over a local approach to strategy – every single one was represented, as Figure 7 shows.

Legend: Each bubble represents a

position on a tension, as to the degree to which the respondent favoured one perspective over

another, against the Likert scale shown below the chart/

The size of the bubbles represent the magnitude of the response choosing

each option. Red indicates a minority view and green indicates

where any consensus might exist

ABSOLUTELY STRONGLY SLIGHTLY SLIGHTLY STRONGLY ABSOLUTELY Figure 7: The Strategic Landscape

Figure 6: Findings

Diversity

Incoherence and Inertia

Profit-focus

Creativity

Not only that, but people within the same firm expressed diametrically opposed perspectives,

particularly in what the more junior member regarded as desirable. This suggested a

misalignment of priorities and a number of very trenchant views were expressed in response

to those contributed by others , for example the debate over collegiality between firms,

sampled in Figure 8, demonstrated how

differently solicitors view their

responsibilities towards each other. The

President of the Law Society took exception

to some comments during our quasi-judicial

forum discussion.

He also confirmed his own experience of the diversity and described the challenges of facing

irate members from smaller firms who believe that the Law Society protects the interests of

large firms, when those in large firms complain about the exact opposite.

While a finding of diversity of opinion might not be regarded as groundbreaking in a

profession which trades in offering opinions, it is still instructive to the profession in terms of

how solicitors are represented.

This could be improved with more recognition of the diversity, such as in the solicitors’

education, which is centralised and standardised here, unlike in the UK, or in the governance

of legal fees, which are still under the remit of the Taxing Master and governing legislation

that makes no distinction between different methods of charging actually in use, still based as

they are on time-costing rather than value-creation.

Figure 8: The Collegiality Debate –Industry Context

Reactor

Analyzer Defender

Prospector

Finding 2: Strategy is for other people

Despite this diversity of opinion, some views

did dominate. Therefore, based on the survey,

questionnaires and interviews, I created a

strategic profile of a typical firm and assessed

its coherence and adaptability using Miles and

Snow’s strategy typology (1978) – see Figure 9.

The results are not heartening for the profession as the relationship between different

perspectives is strategically incoherent. Nor are these views unexpected, given the prevailing

referral-based system of marketing and the restrictions on advertising, consistent with the

combination of a focus on resources over markets with on responsiveness over synergy:

This would indicate not only an expectation that new business would flow from good

work, but that the firm should be able to deal with any work that comes in without

having to pay attention to what is happening in the external environment.

It also demonstrates an unwillingness to engage with the markets and seek synergies

with practice areas that a firm could expand into, which is almost fatalistic and puts

quality of service at risk, something not consistent with a focus on resources

It poses the question: how can one be responsive without understanding client needs?

The typical solicitor that emerges struggles to fit within the main categories of Miles and

Snow’s typology (1978), being too risk-averse to be Prospectors, precluded from being

Defenders due to a reactive responsiveness and showing an overall incoherence of approach

that is far from Analysers, meaning by default the typical solicitor is a Reactor.

This is entirely consistent with a view of the profession as being arcane and unresponsive,

which emerged from the research and was redolent of Mintzberg’s cultural school of strategy

Figure 9: Miles and Snow Typology

(1999). Some participants found this conservatism necessary and others found it frustrating,

views represented by different positions as to whether compliance or choice was more

appropriate, feasible or desirable, and explanatory comments they provided as per Figure 10.

Figure 10: Discourse on Compliance v Choice

Ultimately this might well be a product of the barriers to entry and restrictions on competition

that exist because it is a profession, largely self-regulated to protect values that are not

measured using commercial or competitive metrics.

But for firms to manage a sustainable business model and handle environmental challenges

and Susskind’s drivers of change, they might do well to consider the merits of developing a

more coherent approach, for example preserving the traditional approach might be more

successful if done in a concerted manner by embracing the role of Defender, because it is

clear from the research that there are clients that share those values.

Finding 3: Economic Imperative 1 Social Imperative 0

The tension in organisational purpose is between profitability and responsibility, with lawyers

falling heavily in favour of profitability (two-to-one), surprising some contributors who

believed that solicitors’ social function was paramount. An excerpt from my first interview:

“I think in practice there is limited scope for anything other than being a fee-earning

solicitor, in terms of there being broader justice implications or whatever ... I think

that people at some level beyond a certain level would just say honestly I am just here

to make money.”

There were some who did argue that solicitors should be less commercially-oriented.

However, as with the long-running debates about corporate social responsibility (Carroll &

Shabana 2010), the divisions seemed to be along ideological grounds and very few

participants sought to accommodate opposing views by referring to, for example, a business

case for social responsibility, with an almost complete failure to synthesise this tension and

find a win-win solution through seeking or identifying a meaningful purpose.

As we have seen, the concept of purpose proved problematic in the quasi-judicial forum and,

in fact, few of the survey subjects even mentioned the word ‘purpose’ until prompted by me

at the interview stage, and even then found difficulty reconciling the concept of purpose with

the work of a professional firm. I suspect some of this is because of a perception that

professional firms do not generate value per se but merely respond to the needs of their

clients.

Nonetheless, there is evidence from the research that professionals believing in the work that

they do and the ethos of their firm can bring benefits, even if firms have yet to exploit this.

Finding 4: if you want to know the future, just listen

In contrast to the previous finding, the crowdsourcing exercise conducted through the

interviews was a lot more encouraging. It was based partly on Surowiecki’s ‘Wisdom of

Crowds’ (2005) and partly on Hamel’s assertion that the future lies in the fringe (2012).

While the ideas shown here might not appear novel to an academic with an expertise in

strategy, the fact is that these ideas emanated from solicitors’ own imaginations, when asked

to expand on answers that they had given to a survey. They were not asked to reinvent firms’

strategic model because there is no explicit model for Irish law firms to compare with, yet

they managed to intuitively develop one purely from their own gut and insights, producing

ideas that are well capable of forming the basis for law firms to operate on a sustainable and

profitable basis.

To my mind, it not only shows that creativity can thrive even in an archaic and unresponsive

environment such as the legal profession, if one is prepared to look for it, but also

demonstrates the efficacy of the conceptual framework. The framework provided not only the

context but also the tools for innovative strategic thinking amongst members of a traditional

profession, as illustrated in detail in the ideas sampled in the Appendix to this piece.

To achieve this, I targeted the outliers in order to develop ideas on how to accommodate

competing perspectives such as those represented by the tensions - and how to make the

desirable more feasible and more appropriate, in other words to make ideas and innovations

seem more achievable or appear more palatable. The rationale being that those who stood on

the periphery would be more willing to advocate change – which the interviews bore out –

but that change would not happen without the support of those holding to the opposing

perspective (who represent the majority).

Although the number of contributors had dwindled by this stage of the process, I managed to

secure interest from twenty-four people (albeit an eventual audience of thirteen – due to my

own time constraints as much as anything else), and managed to fill three A4 pages with just

the ideas they shared, ideas which are not in common practice in Irish law firms, a sample of

which is laid out in the Appendix. I include a couple of illustrative examples here also:

On the Markets/Resources tension:

“Build market knowledge into training or maintain on an ongoing basis, you cannot give

effective advice to clients unless you know the market as well as the law.”3

On the Competition/Cooperation tension:

“Collegiality is important and less stressful than battling on every point. For transactions

and disputes one should only challenge the key areas. They work much better when each

party concedes certain areas quickly, as it resolves things much faster, benefitting clients.

“Ultimately it is about picking your fights because obviously there are going to be issues that

there are battles on but to synthesize the tension it is a matter of identifying which ones need

to be fought and which ones conceded.”

During the dissertation for which this research was conducted, I did run a parallel review of

the strategy literature to develop ideas on how solicitors might navigate these tensions; many

of my conclusions there were also reached by solicitors in these interviews, which supports

this finding that there is creativity there to be tapped into when seeking solutions.

3 Incidentally I embraced this idea so much that I designed a course on commercial awareness that I will be

running in the Law Society next February (2015)

DISCUSSION AND CONCLUSIONS

As regards the primary goal of establishing a framework for analysing the profession, this

research has far exceeded my own expectations. My findings do not seek to prove or disprove

any hypotheses on a statistical basis, and on that basis I would be reluctant to generalize to

the extent of concluding that all law firms in Ireland are Reactors within Miles and Snow’s

typology; however, they are based on patterns identified that are consistent with my own

experiences, as well as those of the profession itself – as evidenced in the qualitative data.

These findings paint a vivid picture that should resonate with those who have experience of

the profession, and furthermore a pathway for sustainable strategy, through taking a bilateral

approach – i.e., seeking to synthesize tensions in order to get the best of both perspectives.

At the very least it creates awareness of the tensions that clearly do exist within the

profession, whether they be between opposing strategic perspectives or between the

dimensions of the tensions – i.e., that which is regarded as desirable, appropriate and feasible

– so that one could set about trying to make the desirable feasible.

Recommendations: For Research

This approach has established a method for deeper, wider or more focused future research:

- The relevance and application of the notion of organisational purpose to professional

firms could represent a rich vein of philosophical, social and economic enquiry

- A wider survey on the strategic tensions and dimensions in the profession could have

statistical reliability and inform innovation and the regulation of solicitors

- Or a ‘tension audit’ could be undertaken within a firm to identify sources of frustration, or

alternate strategic issues

Even without further research, the structured and unstructured data gleaned in this research is

so rich and complex that valuable and useful analysis purely drawn from it could serve as the

basis of many years’ further exploration – perhaps, for myself, incorporating a doctorate.

Recommendations: For Industry

The profession, and this may not just apply to lawyers, has opportunities that are shown here:

- Crowdsourcing ideas for innovation in the profession could help point the way forward if

organised using a coherent approach, like the conceptual framework used here

- That firms, who can embrace diversity of views, can have access to that creativity and

develop a more robust and sustainable approach to building their futures.

Contributions

Ultimately, we now have a handle on the legal profession, an insight into how it functions –

or doesn’t - which can be the starting point for more study. However, the study did gather

enough evidence to point the way for firms to become adaptable and sustainable.

We can also see from the contributions why many firms might find it appropriate, feasible or

desirable to become more adaptable. Indeed, they had better hope that Susskind is wrong, or

they’ll be supplanted by other firms that have shed the hubris of the professional ethic and

worked out how to really create value.

REFERENCES

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Bénabou, R., 2012. Groupthink: Collective Delusions in Organizations and Markets. The

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Binchy, D., 2012. Re: Update on Legal Services Regulation Bill, 2011. Law Society of Ireland. Available at: http://blackhall.newsweaver.ie/k8je86xbbue-

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Use of Experts. Management Science, 9(3), pp.458–467.

Fayol, H., 1930. Industrial and General Administration, London: Pitman.

Hamel, G., 2012. What Matters Now: How to Win in a World of Relentless Change,

Ferocious Competition, and Unstoppable Innovation, John Wiley & Sons.

Janis, I.L., 1972. Victims of Groupthink: A Psychological Study of Foreign-Policy Decisions

and Fiascoes, Houghton Mifflin Company.

Kahneman, D., 2012. Thinking, fast and slow, London: Penguin.

Kleiner, A., 2008. The Age of Heretics: A History of the Radical Thinkers Who Reinvented

Corporate Management, John Wiley & Sons.

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Mass. [usw.]: Addison-Wesley.

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Mintzberg, H., 1975. The manager’s job: Folklore and fact. Harvard Business Review, 53(4), pp.49–61.

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[Accessed July 29, 2013].

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APPENDIX: IDEAS GENERATED

• You can create a sense of purpose by having a caring ethos in your practice, to recognise people’s worth and to treat them with respect, which will help with staff retention. People don’t leave jobs – they leave people

• There is a business case for social responsibility and it comes from reputational benefits. Not charging for everything brings reputational benefit in being well spoken-of in the community and generates repeat business

ORGANISATIONAL PURPOSE

• Resolve the tension by resequencing: experience informs the scope of analysis and is then reapplied to evaluate the analysis to make decisions

STRATEGIC THINKING

• Set broad goals to build in flexibility, allowing fee-earners to decide how they want to meet those goals and then commit to that

• Reduce the input required from senior solicitors by analysing the process, thus creating a leaner setup

STRATEGY FORMATION

• Planning, testing and piloting before revolutionary changes allows continuity when they are being implemented

• Adapt the pace of change from revolution to evolution depending on the pace of change in the environment

STRATEGIC CHANGE

• Build market knowledge into training or maintain on an ongoing basis, you cannot give effective advice to clients unless you know the market as well as the law.

• Clients still rely on solicitors a lot for advice and direction: use that as an opportunity to build an embedded relationship and a reliance on your advice.

BUSINESS LEVEL STRATEGY

• Develop a methodology for monitoring new opportunities and for assessing not only their feasibility but also the sales channels, because that knowledge is key to making a success of diversification.

• Use CPD opportunities to train up in new areas.

CORPORATE LEVEL STRATEGY

• Collegiality is important and less stressful than battling on every point. For transactions and disputes one should only challenge the key areas. They work much better when each party concedes certain areas quickly, as it resolves things much faster, benefitting clients.

• Eliminate collegiality to enable a meritocracy through competition.

NETWORK LEVEL STRATEGY

• Buck trends like the one-stop shop by focusing on a niche area, as this could be cheaper than a diverse array of practice offerings and give you more direct access to the client and the client more continuity in terms of whom they deal with.

• Special purpose vehicles, such as joint ventures between lawyers and economists, with limitations to legacy risks

• We have no blame culture, we refuse to allow it. A problem arises, we sort it instantly, we talk about what we learnt from the experience and then move on

INDUSTRY CONTEXT

• Young people are the driving forces and should be listened to, because they have much to offer. They could shoulder some of the administrative and managerial roles so that senior solicitors can focus more on generating fees

• Develop separate award systems for good performers that are given publicly, so there are reputational benefits also. They are cheaper than pay increases and surprisingly effective on staff, including partners, because of the public acknowledgement.

ORGANISATION CONTEXT