"It's better to be a mouse in a cat's mouth than a man in a lawyer's hands". The words of this old Spanish proverb sprung to mind the other day when I saw the results of a recent survey of outsourcing companies, customers and consultants, published by the International Association for Contract and Commercial Managers (IACCM). It claims that nearly 60 per cent of companies agreeing complicated outsourcing deals fail to complete the contracts underpinning the agreements.
At least some of the blame for non-completion can be pinned on the lawyers involved, according to IACCM chief executive Tim Cummins. "[Lawyers] often cause delay or divert negotiations onto areas that seem to others irrelevant – and which may eat up time and cause the contract to be incomplete," he says. "Lawyers need to get more involved in understanding desired outcomes and ensuring the contract is fit for purpose."
Cummins added that incompleteness can - and does - derail valuable deals. "Some result in the relationship falling apart. But in most cases, it creates claims or disputes, or simply causes significant delay. These factors undermine the expected benefits – in terms of cost factors for both parties, but often also with regard to new sources of value or innovation."
On the flip-side, there are plenty of excellent lawyers doing sterling work on behalf of both outsourcing customers and their providers, according to The Legal 500, a guide to the UK legal profession and the country's top lawyers. Now in its 22nd year, this year's Legal 500 includes (for the first time) a section on lawyers specialising in outsourcing deals.
So which law firms lead the field? Here's a quick guide to the companies that Legal 500 publishers Legalease rate as being in the first and second tiers:
Baker & McKenzie LLP
Recent work: Advised Telefonica O2 on its pan-European telecoms service agreement with Deutsche Post World Net; worked with Siemens on its proposed ITO for the Environment Agency.
Key players: Richard Hawtin, Duncan Reid-Thomas
Bird & Bird LLP
Recent work: Acted for the Environment Agency on outsourcing its IT infrastructure; advised Mobile Broadband Networks following its formation as a joint venture.
Key players: Graeme Maguire; Mark Leach; Chris Holder
DLA Piper UK LLP
Recent work: several mandates for central government (the NHS in particular), as well as advising on a series of major public procurements for the Personal Accounts Delivery Authority.
Key players: Kit Burden, Mark Crichard, Mark O'Conor
Field Fisher Waterhouse LLP
Recent work: New instructions from BP and Orange in outsourcing, and public sector outsourcing is a key strength.
Key players: Simon Briskman, Paul Barton, Tim Davies, Hamish Sanderson
Pinsent Masons LLP
Recent work: Home Office, MoD and Cabinet Office
Key players: Kate Rees, David Isaacs, Iain Monaghan
Allen & Overy LLP
Recent work: Particular strength in financial services sector, with clients including BNP Paribas, GE Capital and JPMorgan. Acted for HBOS on the renegotiation of its voice and data service outsourcing contract with BT.
Key players: Ian Ferguson, Claire Wright
Herbert Smith LLP
Recent work: Acts for Transport for London (TfL) on its PFI contract.
Key players: Mark Turner, Christopher Rees
Latham & Watkins LLP
Clients/recent work: Advises large financial institutions, including Deutsche Bank, HBOS and Lloyds TSB as well as UK blue-chip corporates, including Diageo, BskyB and Alliance Boots.
Key players: Gail Crawford, Andrew Moyle
Mayer Brown International LLP
Recent work: Advises on multi-jurisdictional ITOs and BPOs. Acted for Unilever on the outsourcing of international computer services. AT&T is a longstanding outsourcing client.
Key player: Peter Dickinson
Millbank, Tweed, Hadley & McCloy LLP
Recent work: Has advised the NHS, Reed Elsevier, Invensys and ProSieben. Asset management outsourcing clients include JPMorgan, Citibank and Mellon. Advised AstraZeneca on its global applications maintenance outsourcing.
Key players: Laurence Jacobs, Sean Keaton
Morrison & Foerster (UK) LLP
Recent work: Advised HMRC on its £80 million outsourcing contract with CapGemini. Conducts supplier-side work as a member of TCS panel. Other clients include Lloyds TSB and, more recently, Investec.
Key players: Alistair Maughan, Jon Edgell
There are plenty of well-known and respected names in the third tier, too, including Addleshaw Goddard LLP (clients include the Department of Health, the MoD and the NHS), Berwin Leighton Paisner LLP (Arup, Ascent and Veolia), and Bristows (Capgemini, Gap, MTV, Cerner and Diageo).
The new 'Outsourcing and Procurement' section of The Legal 500 makes for interesting reading, and I'd strongly recommend you take a closer look. Outsourcing contracts are extremely complex - and getting more so all the time.
But in the words of a personal hero of mine, the US essayist, philosopher and poet, Ralph Waldo Emerson [http://en.wikipedia.org/wiki/Ralph_Waldo_Emerson]: "The good lawyer is not the man who has an eye to every side and angle of contingency, and qualifies all his qualifications, but who throws himself on your part so heartily, that he can get you out of a scrape."
