Barclays' harvest

They listened, rapt, as Barclays personnel delivered a jam-packed morning of set pieces that ­included presentations from general counsel Mark Harding, chief ­procurement officer David Moon and a video from CEO Bob Diamond.

The morning was rounded off by a generous buffet spread in the ­function room next door, where the private practice solicitors mingled and chatted informally with the ­Barclays team. There was much for them to be happy about, after all. The 60 or so firms present had all just learnt that they had pipped their ­rivals to win coveted spots on ­Barclays’ 2011 global legal panel.

Although Barclays’ legal function counts on 1,100 personnel worldwide – including 850 lawyers – the 2011 review process was a huge undertaking by any bank’s standards.

It was conducted over an intensive three-month period and required much internal planning and liaison between the Barclays legal teams in London and New York. It involved ­reviewing reams of spreadsheets and other information querying firms’ ideas on areas such as business plans, involvement in training exercises, ­diversity and inclusion activities, ­alternative billing methods and ­innovative strategies.

“The day was a real insight into Barclays,” says one partner involved in the process.

“It underlined the bank’s desire for cooperation between panel firms. It also showed how important the legal function, and by extension panel firms, are within Barclays.”

The launch party, as with the panel review process itself, revealed just how much work Barclays has put in to turn the Midas touch into the human touch.

Troubled times

There was a number of things ­different about Barclays’ legal panel review process in 2011. For one, it was the first time the bank had created a formal panel that included both US and UK firms. This led to one of the banking world’s largest panels, ­doubling the total number of firms used by Barclays from around 50 to more than 100 and increasing the number of specialist sub-panels from 11 to 15.

At the same time as carrying out its most ambitious review ever, the bank was having to deal with an ­increasingly tough market.

Barclays, like many banks, is facing huge commercial pressures and is ­involved in a number of ongoing high-profile disputes. In August 2010 Barclays, having acknowledged fully the responsibility of its actions, paid $298m (£192.31m) to settle charges relating to its violation of US sanctions in dealings with Burma, Cuba, Iran, Libya and Sudan.

In October 2011 Barclays Capital (BarCap), the bank’s investment arm, agreed alongside Del Monte to pay $90m to settle a lawsuit over alleged conflicts of interest related to the bank’s involvement in the sale of the US food producer. Although the bank denies any wrongdoing, it is set to lose $23.7m in the settlement.

At the beginning of 2011 Diamond announced publicly that Barclays was embarking upon a strategy dubbed ‘Project Green’ in an effort to reduce the bank’s run-rate costs by at least £1bn by 2013. With this in mind it would be understandable if Barclays had adopted a particularly cost-­conscious and procurement-driven ­review process in 2011. It did not.

Barclays deputy general counsel Michael Shaw admits that the review was a massive undertaking.

“We have a dedicated procurement team, but they were really stretched at the time,” he says, “ so nearly all of the work was done by the legal team ­involved in the review.”

Although the process involved a huge amount of work and input from Barclays’ in-house lawyers, Shaw is convinced that it was right to involve lawyers in the review process.

“Lawyers will have a much deeper understanding of the external firms’ capabilities and the capabilities of key individuals, and this gave us a unique opportunity to spend a very concentrated period with the firms and dig ­beneath the surface,” he explains.

In fact, the Barclays review signalled a marked departure from the vogue for procurement-led review processes.

The procurement route

The era of online panel applications, or e-tendering, began in 2003 when RBS used Belgian procurement group Ariba (formerly FreeMarkets) for its legal panel review. The process was resoundingly unpopular both for its complexity and for how hard the bank pushed to squeeze firms on fees. “The whole process was a veritable disaster,” according to one banking partner at a magic circle firm.” The process was so convoluted that one auction reportedly had partners bidding against ­others at their own firms.

A source close to RBS is at pains to stress that “the e-tendering process was limited to litigation and involved inviting firms to propose their hourly rates”. However, the same source ­admits that the reduction in fees “did put some firms in difficult situations”.

The bank’s last review was in 2009 and it is understood that it asked ­advisers to drop fees by 10 per cent from 2006 levels. In an effort to streamline the 2009 process, one lawyer notes that RBS made certain law firms exempt from the panel ­review process, allowing them to ­bypass the tender round and requiring them only to discuss pricing terms. It is not yet known whether it will apply a similar approach when it kicks off its next panel review in 2012, but there is already much speculation as to what the process will have in store.

Although using a professional ­procurement team was not the golden ticket for RBS, other banks, including Santander, have used them with greater success.

Since 2007 Santander has outsourced its entire purchasing ­function to its procurement arm Aquanima, which runs the e-procurement processes for its legal panel reviews.

Commenting on the bank’s 2011 ­review, lawyers note that, although Aquanima ran the review, Santander’s in-house legal team oversaw the entire process, which involved detailed questions on issues such as security, back-up disaster recovery and IT networking, as well as more traditional matters such as ­diversity.

One City banking partner found the process very time-consuming, ­requiring 13 partners at the firm to dedicate three full days to preparing and submitting the necessary ­information.

“It was an exceptionally cost-­conscious process and possibly as procurement as you can get,” relates the partner.

The 2011 review saw five new firms added to the bank’s legal roster – Bird & Bird, DMH Stallard, Reed Smith, Taylor Wessing and Wragge & Co. Santander was unavailable for ­comment.

Let’s work together

By contrast, although most lawyers agree that Barclays fielded one of 2011’s most demanding processes in terms of the sheer amount of ­information and input ­required by law firms, the bank’s less procurement-driven approach made it one of the most popular ­reviews of the year.

“It was a really collaborative process,” comments one banking head at a City law firm. “It was clear that Barclays was genuinely interested in a two-way exchange. There was also a real recognition of how much commitment law firms do give to the panel and that the bank’s interested in hearing our views on where the ­business is going.”

Another finance partner at a US firm describes the Barclays process as “extremely thorough and well-­prepared”.

Lawyers were particularly impressed by the dedication of senior lawyers from Barclays’ in-house legal team, who, after initial interviews had taken place, invited successful law firms to attend a quasi-law fair to meet and greet members of the ­Barclays team.

Several lawyers note that the bank also hosts a quarterly meeting for its general advisory panel that allows Barclays personnel and partners from each firm to sit down together to discuss how things are ­progressing.

Undoubtedly it is this overall ­convivial approach that has made Barclays a clear favourite among ­private practice lawyers.

“I think they’re really at the ­vanguard,” enthuses DLA Piper Emea head of finance and projects Bob Charlton. “It’s such an open and transparent thing to be able to sit down with other major players in the market and shoot the breeze with them about Barclays.”

However touchy-feely Barclays has been, the business imperative is clear. Taking all last year’s bank panel reviews together, there is one evident trend: the ongoing pressure on firms to cut their hourly rates, with many banks asking firms to drop their fees by between 20 and 25 per cent.

This is precipitating change in the panels and has seen a number of mid-tier firms continue to gain ­appointments. Addleshaw Goddard was extremely successful in the Barclays 2009 review, being reappointed to four sub-panels as well as winning a place on the bank’s general advisory panel and winning spots on the corporate recovery, litigation and property management services sub-panels. Although it was dropped from one sub-panel in the 2011 ­review, it retained its place on the ­revamped general advisory panel alongside Allen & Overy (A&O), ­Clifford Chance, DLA Piper, ­Freshfields Bruckhaus Deringer, Hogan Lovells, Linklaters, Simmons & Simmons and the three new US firms.

“The commercial rate pressures are causing some firms to question the profitability of being on some of these panels,” comments one lawyer a mid-tier firm. “We don’t carry the international cost basis or overheads that some of these other firms have, so this has given firms like us an ­opportunity.”

Still got the magic

While most interviewees acknowledged that banks’ squeeze on fees has opened the doors for mid-tier firms to get on both national and ­regional legal panels, it is rare to

find a panel without a few magic ­circle firms thrown in for good ­measure.

“I don’t think there’ve been many great changes and I don’t see great changes afoot,” observes one partner at a US firm.

Most lawyers agree that, in spite of efforts by many banks to streamline their panels, the magic circle firms are rarely left out because they can offer banks a deep bench and multiple offices.

“It’s quite difficult to take firms off panels and I think there’s been more of a shake-up on the corporate side, with companies reducing the ­numbers of firms on panels by as much as 45 per cent,” notes one ­finance partner.

“Banks don’t like dramatic change,” notes another partner at a magic circle firm, “and they can’t ­afford to make extensive changes. Law firms’ relationships with banks may diminish, but that’s a separate issue. The changes tend to be more incremental than dramatic.”

Outside influenced

Deutsche Bank has famously adopted a different model for ­appointing legal advisers. Rather than a fixed panel, the bank has a ­roster of preferred legal advisers that it ­reviews every two years. While one partner at a magic circle firm ­describes Deutsche’s panel process as very “administration-heavy”, many lawyers approve of the non-exclusive nature of the panel arrangement.

Since 2008 Deutsche has ­employed an in-house tendering ­system known as Click4Legal.

“Click4Legal doesn’t mean you have to be on the firm’s panel, or even necessarily be the cheapest firm when it comes to rates and other ­issues,“ one City partner enthuses.

“The system calls on advisers to use legal process outsourcing [LPO] to try to help drive down costs.”

A Deutsche spokesperson reveals that it has expanded the parameters of Click4Legal in recent years to cover litigation and regulatory work.

“Click4Legal, and the process we’ve established around this, means that both Deutsche Bank and the ­relevant law firm are able to have a clearer understanding of what’s involved in the transaction, litigation or regulatory matter at the outset,” explains the spokesperson. “It also creates efficiencies around the ­tracking and monitoring of matters and the approval and payment of ­invoices.”

Lawyers also note that other banks, including Lloyds TSB, have a ­tendency to go off-panel when it suits.

When asked whether off-panel ­appointments question the whole concept of the panel review process, lawyers are quick to point out that it depends where you stand.

“If you’re on a panel, of course you jealously guard it,” comments one banking practice head. “If you’re not on it, of course you’re keen for the panel arrangement to be relaxed. Often this is done for specialist areas on a case-by-case basis and it doesn’t necessarily undercut the existing panel arrangement.”

“If a bank appoints off-panel and we feel we have that expertise, then we’ll ask to speak to the bank about the situation,” stresses one magic ­circle banking partner. “I’d say that few banks are unresponsive to that.”

The bank’s Yanks

Historically few US firms have ­succeeded in making the panels of UK-based and European banks. Barclays’ panel review was particularly distinctive for the fact that it ­included three US firms on its ­general advisory panel for the first time.

The new 11-strong general advisory panel included a US subdivision, with Cleary Gottlieb Steen & ­Hamilton, Shearman & Sterling and Sullivan & Cromwell comprising the three successful appointees.

“US firms have grown substantially more important for us,” confirms Shaw. “It was a much more in-depth process this year that combined UK and US firms together for the first time. It took a lot of time to complete the process and bring all of the US firms up to speed.”

As for other banks, lawyers note that the rise of off-panel appointments has also given US firms the ­opportunity to capitalise on their ­expertise in niche areas.

“Although not a lot’s changed about the panel review process in the UK, what has changed is that US firms have a lock on certain markets, such as high-yield acquisition financing and fund formation,” notes a London-based banking partner at a US firm.

Weil Gotshal & Manges experienced this first hand last September when RBS retained the firm to advise on the $300m sale of its shares in luggage manufacturer Samsonite. RBS reportedly opted for the US firm over any of the firms on its 18-strong panel on account of Weil’s expertise and ­efforts to make significant hirings in this field over the past year. In early 2011 restructuring specialists Adam Plainer and Paul Bromfield joined the firm from Jones Day, while banking partner Stephen Lucas arrived from Linklaters that August. In July it was announced that three funds partners and one tax partner would shortly be joining the firm from ­Clifford Chance.

Weil is understood to have been ­invited to tender for RBS’s next legal panel review in early 2012. The ­invitation marks a particular triumph for the firm, since it was more or less blacklisted from working with the bank since they came to blows in 2005 over the firm’s alleged failure to exercise reasonable skill in the ­documentation and structuring of a landmark collateralised debt ­obligation deal. The firm was forced to settle an estimated $100m claim in 2007.

Another reason that an appointment to RBS’s coveted panel would be a huge coup for the firm is the fact that Jones Day is currently the only US name on its legal roster.

Lawyers stress that there are ­distinct differences between how US-based banks and UK and European banks conduct their panel processes.

“In the US the concept of the panel process is still in its early stages,” ­explains one banking partner at a magic circle firm. “The US banks place much more emphasis on ­qualitative information, while British banks tend to be a lot more explicit.”

While certain UK-based banks such as Barclays have developed a strong reputation for prioritising ­diversity issues, some lawyers are sceptical as to the extent to which some other banks factor diversity into their decision-making processes.

“Although we’re asked to provide all kinds of information and statistics about diversity and corporate ­responsibility, I’m 99 per cent ­convinced that these aren’t the most important thing to most banks,” stresses one magic circle partner. “Most of the banks’ decisions as to whether they appoint or reappoint a law firm are 90 per cent based on fees, 5 per cent on capability and 5 per cent on other. Diversity’s part of this other.”

There is a clear feeling that diversity has become little more than a procurement statistic for many banks, although one banking partner at a US firm stresses that “most US banks won’t give you the time of day unless you have a sensible approach to diversity”.

US investment banks such as ­JPMorgan are famous for being tough on diversity issues in previous panel reviews, in particular asking law firms to provide information on support for gay and lesbian ­employees.

Ins and outs

In March 2011 Slaughter and May dramatically stood down from RBS’s panel reportedly over concerns of limited liability on individual transactions. There is a strong feeling in the market that the bank’s increasing pressures on fees and proscriptive demands over which departments should be assigned secondees was perhaps too much for Slaughters to take.

“Being on a legal panel for a bank like RBS is a massive commitment for a law firm – it’s extremely difficult for law firms to provide what they want at a reasonable cost,” comments one banking partner at a City firm. “That’s why Slaughters walked away from RBS.”

A banking partner at a rival magic circle firm notes that the firm’s ­commitment to its corporate clients may have been a key factor.

“Ultimately Slaughters has a much stronger corporate client base,” says the partner. “I don’t think banks are as important to them and so they’re willing to step away if it doesn’t suit them.”

Other magic circle firms have also had fluctuating fortunes when it comes to bank panels, showing that they cannot become too complacent.

In 2008 JPMorgan famously ditched Linklaters from its list of preferred advisers following a dispute over the firm’s role in suing Bear Stearns on behalf of Barclays. However, in November 2009 Linklaters was back in favour when JPMorgan retained the firm for its £1bn buyout of the remaining half of UK broker Cazenove.

The firm has also had mixed fortunes with Société Générale, having been dropped from its panel in 2003, only to be reinstated in 2006. The 2009 panel saw the firm reappointed alongside A&O, Clifford Chance, Norton Rose, Shearman & Sterling and French firm Gide Loyrette Nouel. Paul Hastings and Salans were awarded first-time appointments, while Freshfields, Orrick Herrington & Sutcliffe and White & Case failed to make the cut.

Although Société Générale is yet to confirm the results of its latest global panel review, Linklaters was a regular presence on the bank’s mandates in 2011. In May the firm advised the bank on its £78m disposal of Esporta to Virgin Active. The firm was ­retained again in November to advise the bank on a €50bn (£41.37bn) bond issuance.

Panel art

Amid growing demands and pressures on law firms, what does the ­future hold for banking legal panels?

While banks differ greatly on their approaches to the procurement processes, it is clear that the vogue for e-tendering is dying out. As one magic circle partner stresses, ­although all the processes “involve emailing information and rates, most of them don’t involve much more than that and certainly aren’t ­genuine auctions. With some notable exceptions, I don’t think we’ve reached the eBay stage just yet.”

Some lawyers question what the procurement process means for the future of law firms’ relationships with banks.

“Panel selections are far more ­relationship-driven now than has been the case in the past few years,” asserts Rodney Dukes, head of ­finance at Taylor Wessing. “The process is becoming more of an art than a science.”

For some lawyers, nowadays it is more a case that a bank’s relationship with its law firms has become ­progressively arm’s length.

“Banks are looking to get the ­appropriate pricing arrangements and it would be a blinkered approach if panel relationship law firms thought otherwise,” notes one ­finance partner. “So law firms have to sharpen their pencils accordingly.”

As for Barclays, it is clear that ­insiders feel that its human approach was an all-round success.

Shaw believes the bank will adopt a similar approach of involving both lawyers and procurement ­professionals when it next reviews its panel in 2013.

“It’s better to have both involved,” he states, “as the procurement professionals will understandably focus only on rates; but if it was just lawyers involved, then there’s the question of whether they’d push as hard on the commercial terms.

“Ultimately it’s about finding the right balance of involvement of lawyers and procurement ­professionals.”

If it ain’t broke…

Barclays deputy general counsel Michael Shaw says…

On US firms:

“US firms have grown substantially more important for us and it was a much more in-depth process this year that combined UK and US firms together for the first time. It took a lot of time to complete the process and bring all of the US firms up to speed.”

On the panel review process:

“We have a dedicated procurement team, but they were really stretched at the time, so nearly all of the work was done by the legal team involved in the review.”

On lawyers vs procurement professionals:

“Lawyers will have a much deeper understanding of the external firms’ capabilities

and the capabilities of key individuals, and this gave us a unique opportunity to spend a very concentrated period with the firms and dig beneath the surface.”

“It’s better to have both involved as the procurement professionals will nderstandably focus only on rates, but if it was just lawyers involved then there’s the question of whether they’d push as hard on the commercial terms. Ultimately it’s about finding the right balance of involvement of lawyers and procurement professionals.”

Bank reviews… reviewed

Deutsche Bank

“Click4Legal doesn’t mean you have to be on the firm’s panel or even necessarily be the cheapest firm when it comes to rates and other issues. The system calls on advisers to use legal process outsourcing to try to help drive down costs. The bank does need some firms to provide secondees so they’re prepared to open up the field to specialist areas. For other banks, if you’re not on the panel, you’ll get no work.”

“For banks such as Deutsche, which makes off-panel appointments, there’s only a quasi-guarantee flow of work. For this kind of panel arrangement, lawyers ask themselves the question, ‘Do I stick or do I twist?’”

RBS

“Over the past five years banks have tended to follow RBS’s lead on online panel application systems.”

“Being on a legal panel for a bank like RBS is a massive commitment for a law firm. It’s extremely difficult for law firms to provide what they want at a reasonable cost. That’s why Slaughters walked away from RBS.”

“The panel process is a difficult task whether you’re in-house or an external law firm. Value add-ons have just become a requirement. Some clearing banks such as RBS have become extra-demanding and fewer law firms are prepared to succumb when profitability’s questionable.”

“The e-tendering process was limited to litigation and involved inviting firms to propose their hourly rates. It did put some firms in difficult situations.”

Santander

“It was an exceptionally cost-conscious process and possibly as procurement as you can get.”

“For banks such as Santander it’s very much about working what the bank values and aligning this with what you value. It’s all about relationship management.”

Barclays’ panel review (completed July 2011)

General advisory panel

Addleshaw Goddard

Allen & Overy

Clifford Chance

DLA Piper

Freshfields Bruckhaus Deringer

Hogan Lovells

Linklaters

Simmons & Simmons

Who’s new?

Cleary Gottlieb Steen & Hamilton

Shearman & Sterling

Sullivan & Cromwell

Sub-panels

Sixty eight firms appointed overall across both the general advisory and all sub-panels

Who’s new?

A number of firms, including:

Bird & Bird

Baker & McKenzie

DWF

Herbert Smith

Holman Fenwick Willan

Ince & Co

Kemp Little

Mayer Brown

Stephenson Harwood

Withers Worldwide

Commercial and IP:

Allen & Overy

Amster Rothstein & Ebenstein Berwin Leighton Paisner

Bird & Bird

Cowan Liebowitz & Latman

DLA Piper

Flowers Counsel Group

Hogan Lovells

Hunton & Williams

Kemp Little

Latham & Watkins

McCarter & English

Milbank Tweed Hadley

& McCloy

Pepper Hamilton

Pillsbury Winthrop

Simmons & Simmons

Stephenson Harwood

Corporate real estate services:

DLA Piper

Hogan Lovells

Eversheds

SNR Denton

Cumby & Weems

Moses & Singer

Employment and HR:

Addleshaw Goddard

Allen & Overy

Clifford Chance

Magrath

Gibney Anthony & Flaherty Kramer Levin Naftalis & Frankel Littler Mendelson

Luboja & Thau

Fiduciary:

Addleshaw Goddard

Baker & McKenzie

Berwin Leighton Paisner

Burges Salmon

Charles Russell

Macfarlanes

Maurice Turnor Gardner

Withers Worldwide

Lending and finance:

Addleshaw Goddard

Allen & Overy

Clifford Chance

DLA Piper

Freshfields Bruckhaus Deringer Hogan Lovells

Linklaters

Simmons & Simmons

Ashurst

Berwin Leighton Paisner

Birketts

Blake Lapthorn

Bond Pearce

Cobbetts

Davenport Lyons

Dickinson Dees

DWF

EMW Law

Eversheds

Mills & Reeve

Norton Rose

Osborne Clarke

Pinsent Masons

Reed Smith

SJ Berwin

SNR Denton

Squire Sanders Hammonds

Ward Hadaway

White & Case

Wragge & Co

Litigation:

Addleshaw Goddard

Allen & Overy

Clifford Chance

Freshfields Bruckhaus Deringer Hogan Lovells

Linklaters

Simmons & Simmons

Eversheds

Matthew Arnold Baldwin

TLT

Boies Schiller

Investment banking and markets:

Addleshaw Goddard

Allen & Overy

Clifford Chance

DLA Piper

Freshfields Bruckhaus Deringer Hogan Lovells

Linklaters

Simmons & Simmons

Cleary Gottlieb Steen &

Hamilton (US)

Shearman & Sterling (US)

Sullivan & Cromwell (US)

Andrews Kurth

Ashurst

Bingham McCutchen

Boies Schiller

Cadwalader Wickersham & Taft Cahill Gordon & Reindel

Davis Polk & Wardwell

Dechert

Dewey & LeBoeuf

Greenberg Traurig

Herbert Smith

Hunton & Williams

K&L Gates

Katten Muchin Rosenman

Latham & Watkins

Mayer Brown

McDermott Will & Emery

Milbank Tweed Hadley & McCloy Morgan Lewis & Bockius

Norton Rose

Orrick Herrington & Sutcliffe

Paul Hastings Janofsky & Walker Schulte Roth & Zabel

Sidley Austin

Simpson Thacher & Bartlett Skadden Arps Slate Meagher

& Flom

Slaughter and May

SNR Denton

Weil Gotshal & Manges

White & Case

Willkie Farr & Gallagher

Wilmer Cutler Pickering

Hale & Dorr

Investment banking and

markets specialist panels:

Commercial real estate:

Berwin Leighton Paisner

CMS Cameron McKenna

Eversheds

Pinsent Masons

Freight work/shipping:

Holman Fenwick Willan

Ince & Co

More Fisher Brown

Private equity and infrastructure funds:

CMS Cameron McKenna

Dechert

Eversheds

Maclay Murray & Spens

Osborne Clarke

Pinsent Masons

SJ Berwin

Travers Smith

Barclays Wealth US:

Bressler Amery & Ross BuckleySandler

Herrick Feinstein

Krebsbach & Snyder

Loeb & Loeb Neal Gerber & Eisenberg

Parker Hudson Rainer & Dobbs Vedder Price

Barclaycard US:

BuckleySandler

Morrison & Foerster

Morris Nicols Arsh & Tunnell

Reed Smith

Northern Ireland:

A&L Goodbody

Arthur Cox

Carson McDowell

McGrigors

O’Reilly Stewart

Tughans

Wilson Nesbitt 

Scotland:

Aberdein Considine

Dickson Minto

DLA Piper (Scotland)

Dundas and Wilson

HBJ Gateley

Maclay Murray & Spens

MacRoberts

McGrigors

Morton Fraser

Paull & Williamsons

Pinsent Masons

Tods Murray

Deutsche’s Click4Legal – a killer system?

Although Deutsche Bank does not lose its overall spend on external legal advisers, it confirms a 2:1 ratio between external and internal legal spend – that is, for every dollar spent on in-house lawyers, two dollars were spent on outside advisers. This ratio has remained stable over the past five years.

This may perhaps add some perspective to all the talk about the mixed future awaiting law firms; at least, when looking at Deutsche’s experience, a scenario stipulating that legal work will increasingly move in-house has so far failed to materialise.

Around a third of Deutsche’s overall legal spend goes on litigation and regulatory work, with approximately two-thirds on transactional work. During the recent financial crisis, predictably, the importance of litigation and regulatory work increased, whereas transactions took a hit.

1. Origins and significance

Initially the idea of standardising the instruction of external counsel met huge resistance.

“We were told this would never work in banking,” says Rose Battaglia, global chief operating officer at Deutsche for legal and compliance. “Everyone thinks their transaction is non-standard or bespoke.”

However, Deutsche’s in-house lawyers continued to discuss the idea in industry groups and in regular discussion groups of general counsel, eventually introducing the bank’s IT-based system ‘Click4Legal’ in November 2007.

According to an internal presentation, the objective of the system was “to further control and obtain greater transparency and reductions on external legal services”.

Another goal was to facilitate a tracking process for external legal counsel instructions and billing.

The system was implemented in Deutsche’s global markets division and was to be used for all transaction-related spend on external legal counsel.

Deutsche’s global markets include fixed income and equity practice and is the bank’s largest area of legal spend. Initially not covered by Click4Legal was legal spend related to potential or threatened litigation, all regulatory investigations, potential defaults, workouts and HR issues. Currently around 50 per cent of global market’s external legal spend is managed through Click4Legal, but this figure is continuously increasing.

2. Initiating the tendering process

Workflow through the system starts inside Deutsche with the business person (requestor) who needs legal assistance. They log onto the system and initiate a legal services request. Fields that have to be filled in include primary jurisdiction coverage, details of service requested, service delivery date, expected deal revenue and expected legal spend. Expected legal spend has to be allocated to an internal cost centre.

Finally, the request is given an ID so that requestors can check the current status of their various requests online. The request is then forwarded to the requestor’s business manager for approval and to confirm where the cost will be charged.

Next, there are two possibilities. Usually the request goes through Deutsche’s in-house legal department (DB Legal). DB Legal’s role is to “identify external legal counsel able to deliver requested services, obtain and capture all relevant quotes, select and instruct appropriate external counsel and notify [the requestor]”.

However, sometimes the requestor can go straight to external counsel without prior involvement of DB Legal by checking a desk instruction box in the original request. Only pre-vetted, approved law firms can be instructed in this manner and only around 13 per cent of all requests qualify for desk instruction.

Irrespective of whether the business desk itself or DB Legal is tendering the request, common tendering guidelines apply for all transactions in Click4Legal. Deutsche will “tender quotes from at least two, preferably three, external counsel for all transactions, including new product development and pre-deal research”.

3. Permitted exceptions to the standard quotation process

• In certain instances the system allows the requestor or DB Legal
• to approach an external counsel without the need for competitive tendering.
• Legal will not tender when:
• Any modification to previous ISDA, netting or other opinion is needed from the external counsel who provided the original opinion.
• A specific transaction is being modified or repurchased where external counsel has provided the previous deal documents.
• The transaction is part of a programme (a bundle or a group of trades) that has been tendered within the previous 12 months. Opportunities will be sought for discounts based on increasing volumes under the programme.
• An authorising party (eg external client or lead bank in a syndicate) selects the outside counsel who will handle the transaction.
• Matters of corporate housekeeping when there is a law firm in place handling corporate housekeeping for that entity.
• There is no alternative expertise that can be obtained in specific emerging markets, unique jurisdictions or areas of expertise.
  
  

A list of these is maintained by the legal services team (LST) and reviewed annually.

4. Tendering process… continued

The LST, like DB Legal a subdivision of Deutsche’s risk division, has a mission statement of ensuring “a seamless implementation and adoption by external counsel” of Click4Legal. The LST is made up of paralegals and analysts, not lawyers, and provides adminis-trative assistance to both Deutsche and its external legal counsel.

LST personnel fill in one half of a so-called standard quote template (SQT), while the other half is filled in by those external lawyers who wish to participate in the tendering process for a particular request. The LST has to make sure the ‘standard quote template’ contains a brief summary of the term sheet details needed for external counsel to formulate properly a quote. It has to be indicated whether templates for the transaction already exist, whether the request is a potential repeat transaction and whether an accurate (capped) or an hourly quote is required. Hourly quotes are only used for particular pieces of work, never for the bulk of a transaction.

5. Bids by law firms

Only panel firms are invited to tender unless a specific legal knowledge is not available within Deutsche’s panel firms, when a non-panel firm will be invited to compete. The external lawyers then have to fill in the SQT, including entering “a detailed description of the services which will be provided, including indicating if drafting will be template-based or specialised/ tailored contract drafting and if translations are required”; they must also “specify the number of documents required by document type and provide an explanation/ specific reason for each document requested”. Estimated staffing levels required to complete the transaction have to be provided in detail. Finally, and obviously, a quote has to be proposed.

Usually the best (ie cheapest) quote wins. There is an exception process for when a Deutsche lawyer does not think the cheapest firm is the right firm to select. However, this is discouraged and requires a strong justification, but will be granted if appropriate, according to Battaglia.

6. Regular feedback to external suppliers of legal services

An interesting part of Deutsche’s Click4Legal system is the feedback given to external lawyers. Regular reports are provided to several of the top-tier law firms participating in the tendering process through Click4Legal. For a given period of time these reports indicate how often the law firm had bid for work, which bids were successful and – crucially – for those bids that were unsuccessful the report indicates the percentage by which those law firms’ bids were higher than the winning bid.

This practice enables law firms to re-evaluate their bidding strategies and for example decide that it is no longer viable to bid for a certain type of work that can beundertaken much cheaper by a competitor.

7. Evolution of the system

So far the introduction of Click4Legal has been a success story for Deutsche. With the help of the system Deutsche managed to reduce its legal fees by around €20m (£16.55m) in 2010. Other general counsel’s interest in the system is said to be running

high and Deutsche has been in discussion with an e-billing vendor to integrate its software with the system.

After global markets, Deutsche rolled out Click4Legal in its other divisions, such as global banking, asset management and private wealth management. Equally, after an initial focus on transactions-related legal spend, Click4Legal is increasingly being used to manage legal spend on litigation or regulatory matters as well.

To repeat the observation of Battaglia, “everyone thinks their transaction is non-standard or bespoke”. That may or may not be the case, but this is no longer an obstacle to their transactions being subject to competitive tendering.

Currently there is no consensus as to the effects of online bidding procedures on law firms’ behaviour. Some observers think firms are playing along reluctantly for now, but really they are waiting for a better business climate, when legal services will again become a seller’s market. In the meantime these law firms achieve the required cost reductions through margin compression, not altering their fundamental business models by much.

On the other hand, you may accept the proposition that systems such as Click4Legal have killed the billable hour permanently for certain types of legal work. This has important consequences for a law firm’s business model and its internal culture.

Markus Hartung, Bucerius Center on the Legal Profession (www.bucerius-clp.de/the-center/institutional-setting)

Click here to see Bank Panel reviews, 2012-11