Donald Lamson points to a red and blue maze on a screen at law firm Shearman and Sterling.
“This is a maze,” says Donald Lamson, a partner at Shearman and Sterling. “It’s a metaphor to reflect the complexity that institutions must go through as they encounter an increasingly bewildering array of regulatory requirements they must deal with.”
Banks have until July 21, 2015, to follow one of those requirements, the Volcker Rule.
That is the part of Dodd-Frank Wall Street Reform and Consumer Protection Act that says banks can’t own hedge funds or invest for their own benefit; they have to stick to just helping their customers make money.
“I wrote the first draft,” Lamson recalls, “which was a page and a half.”
It is not, however, a page and a half anymore.
“The final regulation implementing the Volcker Rule has ballooned to several hundred pages of small type in the federal register,” he says. There are hundreds of footnotes, some of them quite detailed.
50…000 SHADES OF GRAY
There are also a great many gray areas and exceptions for when activities are allowed or not allowed, says Mike Konczal, a fellow with the Roosevelt Institute.
“Volcker and Dodd-Frank wanted to make sure that banks could still do what we want them to do — interact with clients, do market making, buy and sell things for their clients — and what happens is a lot of that activity kind of blurs with proprietary trading,” he says. Another reason the rules have become complicated is that, simply put, a lot of people have sued. The rules have had to become extra detailed to pass scrutiny.
“These rules from Dodd-Frank have come under extensive criticism in the courts,” says Konczal. “We want that kind of scrutiny it’s important to have it, but it’s become so obsessive and so burdensome that it’s actually made the rules a lot clunkier than they need to be.”
SIRI… YOOHOO…OH, SIRI?
For banks with hundreds of billions of dollars in thousands of different funds, compliance is a massive undertaking. This summer, the Federal Reserve said 11 out of 20 banks totally failed to meet the last big chunk of Dodd-Frank rules, in part because they weren’t thorough enough or made mistakes in their reporting. In some instances, some financial institutions had a 70% error rate according to Robert Marks, CEO of Casewise Financial Solutions and Lamson’s business partner.
Lamson and Marks’ solution: a computer program, called the Volcker Assistant. It is, for all intents and purposes, like a Turbo Tax for banks trying to comply with financial regulations.
Step by step, the software leads Lamson — who would in the real world be likely hundreds of different people across a large company from a fund manager on up to an auditor — through an assessment of which investments pass legal muster and which do not. A lawyer signs off at the end.
Once the program figures out whether a bank is following the rules, it remains as “a management tool”, says Lamson — calculating legal exposure based on changing circumstances (a credit downgrade, for example).
There is at least one other such automated legal compliance tool on the market, called the Volcker Portal by firm Davis Polk.
“Software use has just not penetrated in the legal profession as it has in other professions at this point such as banking for example where it really has saturated the space,” says Lamson.
“Lawyers have a way, if they want to, of obfuscating, where the answer to so many questions begins with, ‘it depends.’ It’s used as a device to preserve options,” he says. “Digitizing and rendering into computer based format removes those options. And as a result, the fear among lawyers is that they will become less relevant to the process when actually they will become even more relevant.”
LAWYERS WILL STILL HAVE JOBS
History may prove Lamson right. One section of law where digital tools have penetrated more successfully is in discovery — searching through documents for evidence before a law suit gets going. Highly sophisticated algorithmic tools that could search documents better and faster began gaining prominence several years ago, and raised the specter of lawyers losing jobs to software programs.
“Just a few years ago, we had hyperbolic headlines of ‘will computers replace your lawyer?’ and there seemed to be a fear among lawyers of technology and what it might do to the legal profession,” says David Horrigan, an analyst and counsel for information governance at 451 Research. That fear has not come to pass, he says. “That fear is still the case with a lot of lawyers, but a lot of law firms are embracing it,” he says.
Teams of junior lawyers may not be digging through boxes of paper as they once did, but lawyers are still needed to work with the data and legal questions that digital tools raise.
“The law is changing,” says Horrigan. “But as far as trying a case you’re not gonna see Watson before the Supreme Court any time soon.”
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