Imagine a restaurant. Or better yet, picture the restaurant and its kitchen.
If you’ve watched The Bear (available on Disney+), you know the contrast. The restaurant is serene, with laughter, conversation, and fine wine. Plates are perfectly presented, glassware sparkles, and crockery shines.
Now, the kitchen. In The Bear, it’s chaos. Shouting, swearing, plates crashing, saucepans boiling over, and characters on the brink of breakdowns. Stopwatches everywhere, people out of sync, demanding things from each other. It’s intense, even from your TV screen.
This kitchen-dining dynamic is like assessing a complex, high-risk matter.
Many lawyers tend to downplay the risk of a matter. Sometimes, they fear acknowledging higher risk means they can’t take it on. But this is a misunderstanding of why risk assessments exist. Rather, the point is to identify higher risk factors, see if they can be mitigated, and decide if the risk is worth it. This last point is both from the lawyer’s perspective, and the firm’s: does the risk align with the firm’s overall risk appetite?
Often, risk isn’t properly assessed because lawyers use a subjective lens. They think, “I’ve done this before, it’s no big deal.” The SRA has noted this, especially with conveyancing matters, which are often marked low risk despite being higher risk for money laundering. But to someone who deals with residential purchases day in and day out, they might regard this something they could do with their eyes (mostly) shut.
So, how do you get your fee-earner to objectively assess matter risks? Ask them to imagine the dining experience they’re offering. Is it a simple cheese sandwich or something a little more refined?
The Tasting Menu
This isn’t your “bread and butter” matter. It’s complex, with multiple elements like preparatory advice, due diligence, transaction handling, and post-completion requirements.
In restaurant terms, it’s a menu where courses follow a specific order, each hinging on the other. You wouldn’t serve lasagne followed by cheesecake – that’s a dairy overload. Similarly, you can’t progress to the actual transaction without putting in the necessary restructuring of the entity, dealing with the corporate filings and anticipating the tax questions.
The Wine Pairing
What complicates a tasting menu? The wine pairing. In legal terms, it’s dealing with other professional advisors like accountants, tax advisors, or people in different jurisdictions. They have their own priorities and limited understanding of your work. Your job is to match the food with the perfect wine, enhancing the overall experience.
The Allergies
You’ve done this transaction a million times, but there’s a twist. In the restaurant, it’s the diner with an allergy. You can’t just remove the bread; you need to take specific, careful measures. In law, this could be conflicts of interest or scope creep. Be clear about your retainer and implement measures like information barriers or enhanced due diligence.
The Timing
A tasting menu takes time. You can’t have huge gaps between courses or send out two courses together. Timing is crucial. Delays are a common cause of client complaints and can lead to negligence claims. Identify time pressures and mitigate them. Use diary reminders and cautious approaches to meet deadlines.
The Influencers and the Critics
Beware of clients who have switched from one of your competitors, on the basis that they were “rubbish.” It’s flattering but can indicate a difficult client with unrealistic expectations. Complaints are a headache, requiring time, redress, and possibly increased reporting (see the SRA’s recent consultation on complaints with the proposal that firms should have to report details of their complaints handling, as well as LeO’s recent move back to publishing complaint decisions in full). Everyone’s a critic nowadays, from local Facebook to Google reviews.
Takeaways (pun intended)
Curating a legal fine-dining experience is a higher risk matter. Multiple parties, jurisdictions, cross-agreements, strict timelines, demanding clients, high values, and technical advice all add to the complexity. Experienced lawyers might not see the risks because they do it all the time. But complex matters offer more opportunities for things to go wrong. Like a tasting menu, one mistake, even a tiny one, can ruin the entire experience.
On the other hand, a cheese sandwich is simple and straightforward. Follow the basic instructions, and you’re unlikely to go wrong.
Ask your fee-earners:
- What kind of matter are they working on – a tasting menu or a quick lunchtime sandwich?
- If it’s a tasting menu, what are the potential risk factors?
- And if it is the lunchtime sandwich, are they sure that’s just it? Or might they find themselves adding a bit of salad, a packet of crisps, let’s make it toasted…
- What can they do to avoid risks becoming real?
This last is the mitigating factors, and it’s the only way they might be able to downgrade a matter into a lower risk rating, or indeed justify why they should be allowed to run with it. So it’s crucial that they find them and make the case that it means they can handle the matter.
Mitigating factors might include:
- Expertise and experience – their own, their colleagues, their supervisors
- Support from colleagues or bringing other advisers into the equation
- Coordination of different elements, like the hundreds of stopwatches brought into The Bear’s kitchen in season 4
Once your fee-earners have documented mitigating factors, they can adjust the initial risk rating. For example, a conveyancer could mark a residential purchase as medium risk, noting that:
- it is the purchase of a family home
- we acted on the sale
- we’ve done source of funds on the additional deposit which clearly comes from income savings.
Similarly, a corporate Partner can mark as medium risk the sale of an established business, including a share buy-back and some relatively sophisticated advice on Capital Gains Tax, on the basis that they know what they’re doing and the team they have in place behind them are well-organised.
The point is, though, they have to acknowledge this and write it down: it can’t just exist in their heads. As so often, we come back to the mantra of the Compliance Department: write it down.
