Who’s afraid of the Big Bad Four? – Inside the accountants’ assault on law

The Big Four accountants are pushing once again into the legal services market as they hunt beyond their audit heartlands. Should you be worried?

‘It has happened to me where you serve a client, have a great book of business, and then Ernst & Young [EY] is lucky enough to win the audit work for that client,’ says EY global legal head Cornelius Grossmann, reflecting on the vagaries and rewards of providing legal services in a Big Four giant.

‘We put down our work and cheer for the auditors. It can be bitter if you lose a good client, but I’ve been on phone calls where I’ve won projects worth over $1m in legal fees just because I was an EY lawyer at the right time with the right answers.’

You win some, you lose some, even at one of the world’s most potent corporate brands. After all, accountancy groups started their ambitious assault on the global legal services market nearly 25 years ago.

The wave of corporate scandals typified by Enron led to a global crackdown on audit regulation, striking a deathblow to the original cross-selling model that the then Big Five were using. The remaining four were forced to either drastically scale back or abandon their legal ambitions amid a wider and more significant move to sell off their consulting businesses.

But in the past three years, the group has been explicit in its move to return to the fray, fired partly by the deregulation of the UK industry under the Legal Services Act. PwC leads the pack with UK legal revenues of just under £60m and a global network with combined income of around $500m. KPMG generated more than £12m domestically. EY’s UK earnings are less clear, though several commentators put its revenues in the £15m-£20m range.

If the UK figures remain relatively modest for these professional services giants, their global networks of lawyers, one of their key selling points, are more striking, with PwC marshalling over 3,200 lawyers worldwide.

‘Take PwC’s growth rate and wind it ten years forward and you’ll see they will be a top 20 law firm in size.’
Michael Chissick, Fieldfisher

Grossmann gives a message of growth typical for his peers: ‘We’ve hired more than 600 people globally in the last 12 months and I don’t think this will slow down. We have had double-digit growth rates for the last five years and this year will probably grow again globally 20%.’

With many expecting technology and advanced automation to shake up the legal profession, a growing number of senior lawyers see such accountancy-tied giants as increasingly pressing threats to law firms… again.

The danger for law firms is less that such professional services giants will sweep the legal industry – there are fewer illusions this time about how easy the law will be to crack – the threat is that the Big Four’s broader move into cross-disciplinary work will put the law within their mainstream as they diversify away from their audit heartlands.

‘The Big Four are really trying to position themselves much more as general business advisers, especially in areas of disruption,’ notes veteran accountancy commentator and journalist Sally Percy. ‘They’re trying to help clients navigate this complex, fast-moving, volatile world where there are a lot of business models and the way people are working seems to be changing.’

The rise, fall, and rise again

The accountants cannot be considered without their troubled history in the legal market, a legacy which cost crucial time and has made it much harder for them to compete.

During the 1990s, there was an intense debate around the ethics and regulation of multidisciplinary partnerships, with Arthur Andersen, KPMG, the legacy PwC and Ernst & Young all making high-profile attempts to move into law. The most advanced, Andersen, which initially formed the English law firm Garretts, began sweeping up UK partners nationally through the mid-1990s. With the possibility of cross-selling legal services to their clients, and law firms at the time far smaller and domestic in shape, many expected them to sweep all before them.

‘We’re not trying to build a standalone law firm.’
Shirley Brookes, PwC

 

 

Andersen soon signed up Scots leader Dundas & Wilson and Spanish champion Garrigues alongside a string of significant international partners and was poised to merge with Wilde Sapte in 1998, then a credible upper mid-tier City firm with a respected banking practice. It looked to be a watershed, but having agreed the deal, Andersen pulled out at the last moment after several big-name Wilde Sapte partners quit. Wilde Sapte senior partner Mark Andrews told staff: ‘Andersen have made a grave error of judgement.’ Prophetic words.

The once-unstoppable momentum was halted, the spell broken and the accountancy-tied firms never regained their advantage. Yet they toiled on. KPMG International founded the KLegal network in 1999, PwC launched the Landwell associated law firm in 2000, the same year as EY founded Tite & Lewis in the UK. But despite several years of recruitment of mixed calibre, including KPMG signing up McGrigors, they never looked a serious threat again as Europe’s law firms boomed in the late 1990s and the Magic Circle sustained a startling period of expansion.

At the end of 2001 the scandal regarding concealed debts and off-balance sheet vehicles at US energy giant Enron soon engulfed its auditor Andersen, which at the time had 85,000 employees globally. Facing indictment in the US, Andersen rapidly collapsed, taking Andersen Legal with it.

Worse, Enron and a series of other accounting scandals linked to corporate excesses in the late 1990s led to a sustained global crackdown on audit regulation, most damaging in the US Sarbanes-Oxley Act, which restricted the ability to sell additional services to audit clients (and hugely boosted revenues of law firms into the bargain).

In response, accountancy giants, except Deloitte, divested themselves of much of their lucrative consulting work and either pulled out of mainstream legal work or scaled back their ambitions (though the rump of the networks still often existed and legal services were often internally retained in related areas like tax).

‘EY basically shut up shop, KPMG divested itself of its legal business and PwC retained some of its legal services,’ recalls one former partner. ‘Given at the time PwC audited about 40% of the FTSE 100, it had really significantly negative impacts on some of the client base.’

Despite the tougher regulatory climate, post-banking crisis the Big Four started to reposition themselves as broader advisers to multinationals facing turbulent times in a fast-paced and tech-driven market.

Moreover, expectations that audit work will be increasingly commoditised has pushed the Big Four to seek a more nuanced means of diversifying into broader advisory work for their key global clients.

The UK Legal Services Act, the complex deregulatory package that made it easier for non-legal businesses to own and offer services, provided another avenue for their ambitions.

In 2014, PwC, EY and KPMG secured alternative business structure (ABS) licences, which give non-lawyers the ability to own and invest in law firms.

Even Deloitte had as far back as 2010/11 put in place a global strategy to bolster its legal services, increasing its coverage from 35 countries in 2011 to a current tally of 78. In 2014, PwC’s then global legal services leader, Leon Flavell, said that PwC was targeting global revenues of $1bn by 2019.

KPMG and EY became multidisciplinary practices (MDPs), which allowed them the ability to completely merge their legal practice with the parent firm’s limited liability partnership. It took PwC over two years to gain an MDP ABS, which came into effect last October, ditching its PwC Legal branding and fully merging the business into the accountants. The accountants were back, having rapidly built up their workforces of lawyers over the last three years on a global basis. But the modern MDP looks very different to its earlier incarnation.

‘Not a law firm’

While the accountants’ legal ambitions often attract hype and confusion, all the major players now stress their lack of focus on replicating the model of conventional law firms to instead focus on services that sit with the business lines of their parents.

‘We’re building a legal business that complements what PwC is doing,’ says PwC UK legal head Shirley Brookes. ‘We’re not trying to build a standalone law firm, it is all about being able to provide clients those multidisciplinary offerings.’

PwC’s strategy broadly reflects that of EY and KPMG. PwC boasts coverage in immigration, employment, entity governance, tax disputes, regulatory disputes, cyber, IP/IT, real estate and corporate.

The firm has seen substantial growth since 2012/13 when it generated £40m in its UK and Dubai branch, rising to £42m in 2014, £48m in 2015 and £60m for the 2015/16 year with a net income of £11m. The firm has posted £47m for the first three quarters of its current financial year, putting it on course for steady growth this year.

‘This is not a zero sum game. We don’t have to win work off law firms.’
Matthew Kellett, EY

 

 

PwC has UK practices ranked tier one to three in The Legal 500, including commercial property; data protection; IT and telecoms; tax litigation and investigations; corporate crime; immigration; and M&A (smaller deals), with the latter two practices banded tier one. Major clients include BP and AstraZeneca (see box) as well as two major banking groups.

‘Our model is very different, it’s absolutely not to go head-to-head with law firms. We offer something different,’ says KPMG’s UK legal head Nick Roome. ‘Our multidisciplinary model means we are able to work with a number of law firms in the market. Irrespective of what’s happening with the Big Four, the legal sector is going through disruption. That’s coming from all different directions. The market will change come what may.’

KPMG’s practices include tax disputes, corporate, commercial, M&A, employment, immigration, financial services regulatory and global entity management, while EY’s financial services offering, headed up by Berwin Leighton Paisner (BLP)’s former finance head Matthew Kellett, provides advice on financial services regulatory, derivatives and is currently looking to bulk out in contractual exercises in the banking sector. Beyond financial services, it has corporate, commercial, IT/IP and data privacy, and employment capability, overseen by Addleshaw Goddard’s former corporate managing partner and now EY UK legal head Philip Goodstone.

All three have ruled out a move into general commercial litigation for fear of commercial and legal conflicts, while handling insolvency and restructuring is likewise off the menu for fear of jeopardising law firm referrals.

‘We look for propositions where we go to clients as a team and say: “We think what you need for this project is accounting advice, legal advice, regulatory advice and tax advice.” Sometimes work will come when someone in the firm has a stronger relationship with a client, other work will come where we have a strong relationship and introduce other parts of the firm,’ says Goodstone.

Kellett comments on EY’s approach: ‘We don’t have to be winning work off law firms in every area to grow our business. There are areas in which we will be competing more head-to-head, but I don’t subscribe to the view that it’s a zero sum game.’

However, he maintains that the Big Four are part of the forces of change sweeping the profession, noting: ‘Law firms organise themselves like they did in the 1950s. We are at a point where we are seeing change in the legal model.’

Beyond the UK, each practice works with its international counterparts. PwC sits at a global headcount of 3,200 lawyers in over 90 countries. EY has more than 2,000 lawyers across its offering in 75 countries while KPMG has 1,300 lawyers spanning 72 countries.

While it does not have a formal legal practice in the UK, Deloitte has 1,850 legal professionals across 78 countries with the aim to grow to 100 countries by 2020. When asked whether Deloitte, which audits the majority of the Legal Business 100 top ten, would consider opening a legal practice in the UK, legal services global head Piet Hein Meeter says: ‘The UK firm will always follow the legal market, but how exactly that will turn out, I don’t know.’

Deloitte merged its wider north-west European practice on 1 June with its network in the UK, Netherlands, Belgium, the five Scandinavian countries and Switzerland. Adds Meeter: ‘We will have to wait and see what the north-west developments will bring in relation to the UK legal strategy.’

Meeter says that Deloitte, which has a number of senior lawyers in non-practising roles, is open to forming alliances in the US or UK.

With the Big Four firms targeting document-heavy, cross-border work that often requires high partner/fee-earner leverage, by all accounts they are still often focusing on premium billing, charging rates on work comparable to leading City law firms, creating something of a tension in the model given that they are still often operating on margins below that of major UK law firms.

The presence of tougher regulation remains in the background, notably EU audit rotation regulation adopted in 2014 that came into effect last year. The changes require a ten-year audit firm rotation for all public interest entities in the EU.

Percy notes: ‘The rotation rules are possibly harming their margins. It’s a lot of work pitching and they’ll be expected to pitch for every large audit. They must have to invest a lot of money in pitching for audits right now, and if fees aren’t going up that much it makes you think that the business of being in audit is not as profitable.’

‘We look for propositions where we go to clients as a team.’
Philip Goodstone, EY

 

 

As the Big Four continue their push for growth, some leaders within the legal market have grown wary, particularly in the UK mid-market. Fieldfisher managing partner Michael Chissick says: ‘They’re not going after the top 20 law firms, because they audit many of them and have close referral relationships, so they’re going after the mid-tier strata of work with the view to – once they’ve conquered and dominated that space – going after the space dominated by the big firms. Take PwC’s growth rate and wind it forward ten years and you’ll see they will be a top 20 law firm in size.’

It is clear that the accountancy-tied practices have switched to a more subtle sales pitch than their mid-1990s bombast that seeks to downplay their threat to law firms. On one hand that reflects the reality that they are targeting areas that do not neatly fit with the structure of law firms and providing the kind of operational and logistical plc support that is close to what in-house teams or consultancies are doing. On the other, a good chunk of their business still parks its tanks on the lawns of the legal profession. Soft-soaping the move into law puts off the day when they start sacrificing more lucrative referral and law firm business, or it would if many law firms were not alive to the threat already.

Roome sums up the approach at KPMG: ‘We’ve distilled it down into three areas where we think we can distinguish ourselves. The first is the integrated proposition we have. We wrap legal services around other advice KPMG provides. The second thing is technology; we have a great opportunity through the access of resources that we have. The third aspect is the global footprint.’

‘Like Harrods’

When asked what the appeal of working at a Big Four firm was for a lawyer, one ex-PwC partner describes: ‘It’s like Harrods. You’ve got every expert and every consulting area of industry you can think of who will be in your phone directory. You can organise a meeting at a moment’s notice and get educated. There’s a huge talent pool.’

PwC’s overall partner headcount in the UK sits at 969 with fee income of £3.44bn while EY has 698 partners with fee income sitting at £2.15bn and KPMG’s £2.06bn is brought in by 617 partners. Regardless of its lack of a UK legal offering, Deloitte has 981 partners in the UK with fee income sitting under PwC’s at £3.04bn, according to Accountancy Age’s data and their latest issued results. All four have more flexible structures and higher partner/staff ratios than leading law firms. PwC has over 19,000 staff in the UK. KPMG and EY both have around 10,000 in the UK. PwC, for example, has 20 equity legal partners out of 320 UK lawyers.

All three firms are now aiming to step up their legal coverage for clients by attempting to get on panels. PwC has already won places on panels for Iron Mountain, Weetabix, HP, Société Générale and most recently the Crown Commercial Service’s general legal advice panel.

EY’s Grossmann says: ‘We weren’t on global client panels for many years, but as we expanded we’ve got the interest of general counsel and we’re asked to pitch. It’s difficult because we’re head-to-head with the traditional law firms who have longer relationships, so we’re the new kids on the block. But we have our competitive advantage in terms of the network and the MDP approach.’

As part of the MDP strategy, pitching with other areas of the business, the Big Four’s legal services offerings have access to artificial intelligence (AI) technology and information systems ahead of law firms. ‘These are multibillion-pound organisations that are seeing their audit work peeling away because of the rotation of auditors’ rules,’ Chissick says. ‘The investment in technology and innovation are already there and so they see legal services as the way to fill their gaps and they’re investing considerable sums into the legal sector.’

Both KPMG and EY team up with other departments to deploy technology to clients, while EY is currently working on systems to help clients manage the EU’s General Data Protection Regulation (GDPR), which comes into effect next year as well as supply chain reviews. KPMG’s global legal offering provides entity management technologies to clients and immigration tools. Lawyers at KPMG are ‘expected to go round the firm and have a go on their toys’, according to one former lawyer, who says its forensics team also provides technology used by the legal network: ‘They may not have it badged as legal services but the ability to trawl through masses of data was possible.’

Lately star laterals have been few and far between, with the Big Four hiring from the mid-market. The calibre of transfers are far from the profession’s big hitters.

PwC’s legal offering has also begun developing its own technology recently, which includes a readiness assessment tool for clients preparing for GDPR, created by cyber security legal head Stewart Room. In April PwC it emerged had established a managed legal services practice to help in-house lawyers handle bulk contracting work using technology, hiring Radiant Law co-founders Andrew Giverin and Jason McQuillen to set up the practice.

Interestingly, Deloitte last year teamed up with Allen & Overy in the first major joint venture between a leading law firm and one of the Big Four to produce a tech-based product called MarginMatrix to help banks handle derivatives regulation, which has been a substantial revenue generator. Whether such developments will fire the legal ambitions of accountants, or make them wary of cutting off commercial partners will be a major issue in the years ahead.

The appeal of working for one of the Big Four is enticing a number of City lawyers. EY has taken on 85 lawyers in the UK across two years with KPMG approaching 100. Roome says the headcount has almost doubled since he joined in 2014 from DLA Piper.

A very big ship

While the Big Four bring formidable assets to the table, discussions with half a dozen former lawyers make it clear that they all have substantial hurdles to overcome in the legal industry.

For one, the scale that gives huge resources also comes with enormous organisational complexity and a potential for office politics, warring factions and plain old bureaucracy.

‘PwC as an organisation is amazingly powerful in the way that it can deliver services across a number of areas, geographies and clients,’ says one former partner. ‘When it doesn’t work, it’s an incredibly frustrating place where people don’t talk to each other and don’t collaborate. It’s a very big ship that takes a long time to turn and often does things in a bizarre way without any seemingly rational explanation.’

Differences in the way the Big Four work were cited by one former KPMG partner as a factor for high turnover in its legal team: ‘The track record of tax partners who moved laterally from the Magic Circle to the Big Four lasted less than two years, showing there must have been something very different culturally.’

In the last two years, star laterals have been few and far between, with the Big Four hiring predominantly from firms in the mid-market including Ashurst, Addleshaws, BLP and DLA. While there have been a few notable performers – Kellett’s thoughtful financial services work at EY was praised by several observers – in the main the calibre of transfers are far from the profession’s big hitters. Indeed, the standard of the partner CVs has arguably gone down compared to the mid-1990s heyday.

Many of the former partners cited conflicts as a major issue. ‘Of course, you have to clear conflicts for each and every party,’ says one former PwC tax litigator. ‘The bigger the dispute, the more likely it was that one of those parties was going to be a PwC client and, if it wasn’t a PwC client, it was going to be a PwC target client.’

Along with conflicts came the issues of referrals and conflicting incentives. Other service lines often handed out legal work to long-term relationship law firms, their own sources of referral work, rather than handing it back to internal lawyers. And it works the other way: Linklaters, for example, brought in PwC on the European administration of Lehman Brothers, one of the most lucrative professional services assignments of the last decade. Moreover, the bulk of work handled by the Big Four’s lawyers comes through internal referrals, which means they are less able to send work back and build internal capital with non-legal colleagues. ‘There was a lot of animosity and internal conflict around that. There were big partner arguments around this stuff,’ says another former PwC partner.

Many assert that there are significant numbers internally at the Big Four who either view legal as a marginal distraction or actively oppose moving into the sector for fear of upsetting existing referrals.

‘We’ve distilled it down to three areas: integration, technology and the global footprint.’
Nick Roome, KPMG

 

 

Others question the clout and influence that lawyers get inside accountancy groups, arguing that the accountant Mike Bailey, as PwC UK head of indirect tax and legal market leader, is the dominant force in the group as legal is structured under the tax team.

‘There’s a lot of control-freakery around who owns the relationships,’ the former PwC partner continues. ‘People from other departments would say: “This is our client. What are you doing? You need to tell us what you’re doing.” You’d have people saying: “Do we do that sort of work for clients? I don’t think we should be doing that sort of work for clients.” I’d say: “That’s my job, that’s what I’m paid to do.”‘

Perhaps the wider challenge is the institutional one of winning support and investment in a sector that is so marginal to the core of the business. PwC has over 200,000 staff worldwide and generated $35.9bn in 2016, over 70 times what it earned from legal activities. The tax team that legal sits within alone generated $9.1bn, against $11.5bn for its advisory business. Its core audit and accountancy work generated $15.3bn, or 43% of revenues.

Judged in that context, the challenge of winning investment and support becomes clear. One ex-EY partner who was based in the business’s European network says: ‘If you start to win audit contracts, my feeling is that they would immediately change and put all the investment into audit, and forget about legal.’

Deloitte’s Meeter looks for lawyers who are comfortable with the differences joining the Big Four from a law firm will bring: ‘They have to accept that in the role they step into, legal may not always be the driving force.’

Percy puts their ambitions into similar perspective: ‘They are probably investing in legal services. It’s not something in the work that I do with them that comes up as a really strong area of focus. But it fits in the bigger picture of providing an all-round service.’

The highly-consolidated nature of the accountancy profession provides additional challenges in attacking the law. Though comparisons are difficult, the global legal services market is considerably larger in revenue terms than the equivalent accountancy sector, particularly in the US, and still generates higher margins and offers higher compensation for star partners.

PwC UK profits per equity partner were £706,000 for 2015/16, though drawing direct parallels with a law firm is difficult because of differences in structure. According to one account, PwC was several years ago utilising an equity ladder spanning roughly between £300,000 and £1.1m. Partners were banded into one of four levels, which were in turn divided into three tiers, resulting in a 12-ladder lockstep. According to this account the vast majority of legal partners at PwC were on the lower two levels, with partner compensation spanning between £300,000 and a little over £700,000.

The struggle to retain and motivate talented lawyers within the vastly differing industry structure has been well documented now and there is little sign that this fundamental problem has been credibly addressed.

‘PwC as an organisation is amazingly powerful in the way that it can deliver services. When it doesn’t work, it’s an incredibly frustrating place where people don’t talk to each other and don’t collaborate.’

The brand has limits

It is hard to overstate the potency of the brands of the Big Four in legal services. The threat of accountancy-tied firms during the 1990s was a major factor in spurring the globalisation and modernisation of the City legal market.

But the reality is that carving out a significant chunk of the global legal services market will now be considerably more difficult than it was during the 1990s, not least because the regulatory climate has turned.

Their strategic prospects of making a dent in the US legal market, by far the largest and most lucrative in the world, look marginal given tough regulatory constraints – proving a huge break on their ambitions. At well over $300bn, the value of US legal services dwarves the global income of the combined Big Four – yet PwC, the largest legal provider of the group, has no lawyers in the US.

Even the significant global headcounts bring the challenge of marshalling disparate groupings of lawyers. Such figures may sound impressive benchmarked at face value against large law firms, but they are a very rough indicator of progress. Currently, the largest legal network of the Big Four at PwC would barely scrape into the 75 largest law firms in the world in revenue terms.

In the other key market of the UK there is a more hospitable regulatory environment, yet the group has barely got off the ground. The three of the Big Four focusing on law in the UK between them generate less than £100m in revenue, a tiny slice of UK commercial market worth roughly £20bn. While there is clear evidence of growth within the grouping, the firms have a tendency to pick and mix sometimes contradictory statistics. Certainly, it is hard on current trends to see even PwC getting near to the $1bn figure and even if it did its global clout would be heavily impaired without robust coverage in the US and UK.

‘We’re not repeating the mistakes of the past.’
Cornelius Grossmann, EY

 

 

With formidable cultural challenges to breaking into law, they now have to contend with the fact that ambitious lawyers have become sceptical after two decades of false starts and unforced errors. No-one doubts that these institutions have the ability to be a major force in legal services if they want to, but what remains in considerable doubt is whether they have anything like the corporate will to overcome the obstacles they face in achieving that goal.

The wild card and big caveat to this downbeat view on the accountants’ legal prospects comes in the shape of the emerging field of process-heavy activities requiring technology, volume, investment and huge reach to position themselves as go-to advisers to PLCs wrestling with global-scale risks.

It is no coincidence that many see risk-laden fields like financial services regulation and cyber security as areas in which the legal arms of the Big Four could secure the kind of major wins that could allow them to recapture their momentum and willingness to aggressively invest in law.

By the same token, an audacious move in the flexi-lawyer and managed legal services businesses being pioneered by Axiom and Lawyers On Demand could be one way for the accountants to reboot their efforts in law.

As it is, the breakthrough remains a long way off. Says one recent PwC leaver: ‘Now I’m a partner at a City firm I don’t see PwC as a proper competitor. More and more it would limit itself to complementing services PwC was providing and some of those services are not services that an external law firm would necessarily be brought in on.’

Says Grossmann: ‘Back then the Big Four thought they needed to build a big law firm to compete with the Baker & McKenzie’s of this world. Today we have a more nuanced approach. We’re not repeating the mistakes of the past. If you’re not focused on quality and you’re more focused on quantity, you’re not going to build what you want to build.’

Perhaps, but judging a three-year period in which their collective star has supposedly been in the ascendancy, the cynic could be forgiven for believing that the arrival of the Big Four will be forever foretold but never delivered. LB

madeleine.farman@legalease.co.uk

Additional reporting by Tom Baker.