I’ve recently been working with some lawyers on their CSR strategy and activities. It has reminded me of a few things about lawyers and prompted me to ask about Lawyers and Sustainability.
Part One of this Series will look at the question, “Are Lawyers Different?”: including whether law firms are distinctive in their approach to CSR, and how culture plays a significant role in law firm performance on CSR.
Are Lawyers Different?
Some say that law firms are the same as any other knowledge-driven professional service firms. The challenges they have are the same and their business model is largely undifferentiated from other professional service firms.
Others (mostly lawyers themselves) say that they are unique organisations with unique challenges. They have “special legal professional obligations” and have a “unique culture”.
On balance I think that law firms are uniquely similar to professional service firms, and have most of the same challenges. I’ll look at the most relevant CSR issues for law firms in a later post, but first a note on uniqueness.
When it comes to uniqueness, most of us like to believe that we are unique (and/or special), and so we see the world through a lens that helps us to preserve that claim. But when it comes to CSR, it can be tempting to overplay our ‘uniqueness’ and to use that as a reason for not doing something that similar organisations are doing. It’s a claim I’ve heard a lot from executives who are at the early stages of understanding CSR, but which seems to evaporate once CSR programmes are in full swing.
I’m not persuaded that lawyers’ obligations go much beyond those in some other professions. Lawyers can be struck off by their regulating authority for breach of ethical conduct. But there are others in a similar position; Auditors, for example, can also be struck off by a regulator for breach of certain ethical rules. And to a lesser extent, Accountants can lose accreditation and status (and clients) if they breach certain ethical rules. Of course they are different rules, but there are plenty of lawyers who have broken the law in all manner of strange and spectacular ways and yet managed to retain their status as a lawyer. That makes me doubt that lawyers are required to be special in actually upholding the law. And in any case, there is certainly nothing in their professional obligations that requires them to refuse work from a client who is acting legally, but not necessarily in the long terms interests of society. And that doesn’t help us CSR types in what we are trying to achieve.
Nonetheless many lawyers are motivated to use their legal skills for good purposes, and the history of pro bono among the legal profession is a relatively unique one. Almost since there was a profession, there has been something of a commitment to use legal knowledge for good, including being required by law in many jurisdictions to do so, perhaps most famously in the US. And the usual reasoning for it is something like this:
“You occupy a relatively privileged position in society and have access to great power through knowledge. This carries with it a great obligation to defend the weak and the poor.”
Not all lawyers can show evidence of acting on that obligation, which is possibly why almost all lawyer jokes paint the profession as less than savory. I’d be most grateful if you would share any lawyer jokes that praise the legal profession (comments below).
In any case, I think Lawyers have some quasi-unique insights into CSR and a few nearly unique problems to solve if they are to embrace CSR in a way that transforms business-as-usual approaches. I’ll get to that in a later post, but first I want to look at the uniqueness of the legal profession.
The Advantages of being a Lawyer
There are, if I may say so (as a former lawyer), some advantages to being a lawyer.
Top of the Class
Lawyers are, generally speaking, quite an intelligent bunch. They often came top in their classes in high school (not me, technically I think I failed my fourth year of High School) and possess a wealth of knowledge on a variety of subjects and a swather of intellectual resources to approach problems.
All that cleverness is a wonderful resource and can be used to bring some heavy-weight thinking to CSR.
Lawyers are often highly skilled at making assessments of legal risk. The better lawyers sharply distiguish between legal and non-legal risk, can help to quantify levels of risk impact and likelihood and know how to differentiate between types of risk; certain and uncertain. They are often able to identify a multitude of risks very quickly and clearly.
That kind of understanding of risk is really useful when it comes to CSR – it is the platform for making assessments on one axis of the materiality matrix.
Lawyers’ behaviours are often driven primarily by meeting budget targets – either in relation to finanacial targets or (much more commonly) targets for billable hours.
Andy the get very good at managing to budgets and meeting targets.
“We do whatever our clients ask us to do.” is the sort of thing that lawyers say a lot, which doesn’t say a lot about what they actually do. Statements like that tend toward moral nuetrality, which enables lawyers to use legal frameworks instead of moral ones when advising clients.
That often means that lawyers get very good at language that doesn’t imply criticism or judgment – merely deals with facts (at least as they see them). That can be a very great asset in business and also to their clients.
At Partner level, law firms are exceedingly democratic, and although structures vary, once a person reaches the heady-status of Equity Partner, then each person’s vote counts for effectively the same as every other and decisions are made quite democratically.
The Downside of being a Lawyer
But being a lawyer seems to bring some challenges that other professions don’t tend to have.
Top of the Class
It seems as though being top of the class tends toward a degree of, shall we say, confidence. That confidence can mean that it is difficult to persuade lawyers to change their mind, or embrace a non-legal perspective.
Many law firms state very clearly on their website that they don’t give non-legal advice. The reasons for that are mostly historical and mostly now don’t apply. Most countries now allow law firms to give non-legal advice, but many firms still won’t formally do it.
As a result, lawyers’ risk expertise remains restricted to legal risk, which means they can tend towards undervaluing many CSR risks (and opportunities).
Further, their general risk aversion tends toward disclosure only of bare minimum requirements, which doesn’t play well with insatiability’s desire for transparency, honesty and well-founded trust (which also feeds into brand – see below).
Many lawyers still charge their clients on the basis of time spent. As a result they often get a little myopic about meeting time and financial budgets. That’s great for budgets, but not so great for sustainability.
The focus on achieving budgets without a deep and intuitive understanding that value creation is an important part of doing business can be a huge barrier to not only client satisfaction, but also can mean that internal value creation opportunities are marginalised because they are often more difficult to prove than the (overly-simple) metric of hours billed to clients.
The focus by lawyers exclusively on the interests of their client means that they are obliged to ignore negative consequences for others – including society and the environment. That combined with a focus on legal risks can mean that lawyers support some of the most damaging corporate behaviour when it comes to CSR.
One of the arguments that lawyers use is to say that clients have a right to legal representation. I won’t fully deal with that issue, but that isn’t a very convincing response. Firstly, that is only true in a very limited set of circumstances which almost never apply in a corporate context (the right is for persons (and nnto companies) to have representation in certain criminal matters). Secondly, law firms almost always have the right to refuse to act for anyone they want to, and frequently exercise that right on the basis of commercial conflicts.
The Democracy of law firms carries with it two main problems. Firstly, the vast majority of people in the organisation don’t have any voting power, which leads to distortions of decisions towards the interests of those who do. And there is much written about the dyad of Managing and Senior Partners.
Secondly (and each of these things are identified as critiques of democracy), decisions tend towards being slow and also to stifling innovation; at least unless there are counter-measures in play.
This one is a combination of the disadvantages of risk awareness and Client focus. I might need to defend myself in making this claim, but I’m happy to do so.
Law firms’ approaches to CSR in the UK has recently been invigorated by the increased requirements of their clients in relation to CSR performance, which seems in part to be motivated by clients’ increasing supply chain requirements. That in turn probably stems from clients’ desires to minimise the possibility of brand contagion through association with organisations that don’t uphold similar behavioural and/or ethical standards. So some law firms have found themselves rejected from being able to give legal advice because they couldn’t meet client’s CSR requirements.
I think that is because lawyers don’t tend to have as good an understanding of brand and brand proposition as most of their clients (or indeed some of the the other kinds of professional service firms). This has two effects.
Firstly, lawyers generally lag behind the leading organisations when it comes to such CSR concepts as purpose beyond profit and also working in partnership on CSR issues.Secondly, they tend to be reactive to client needs not proactive on the CSR agenda.
Are Lawyers Different?
If you’re a lawyer, and still reading, you will have noticed that I’m being overly general. And that I’ve painted some of your greatest strengths as your greatest weaknesses. I think that is one of the great things about CSR – it helps to remind us that in a corporate context, our strengths often come with risks and warnings attached.
For example, being great at sales can result in product mis-selling and many other kinds of counter-productive behaviours that lead to sub-optimal results. Financial Crisis anyone?
But that is just stating the obvious. So, what do I think – are lawyers different?
Broadly speaking, No. I’ve heard just as many silly / ignorant / biased / destructive things come out of the mouths of lawyers as from anyone in any other profession. I’ve also heard at least as much brilliance / innovation / ambition when it comes to talking about CSR. And there is an emerging group of lawyers who have an active and professional interest in CSR (see many of them at the CSRLegal50).
I like some of the conclusions from a recent Greenbiz article entitled “Are lawyers the enemy of sustainability?“. One conclusion I agree with is that the rigour of lawyers can be a real asset to CSR professionals. But I don’t agree that lawyers are always rational and logical about CSR issues. Much of what drives lawyers is their unwritten culture, which means that they defer to what they know (including budgets and minimum risk-taking) which means that much of CSR is entirely or partially outside their area of expertise. If you’re a lawyer and feeling like my ‘critique’ is a bit harsh, then a read of this article should help. If you aren’t a lawyer, then you are now armed with some useful information and tools for working with them.
But my conclusion that lawyers aren’t that different is mostly diven by my experience of working within law firms and other professional service firms. The CSR issues that they need to deal with are often the same. In my experience there is greater variation of approaches among professional service firms than between professional service firms and law firms.
Next instalments will look at an example of a law firm that is thinking differently (and has overcome some of the disadvantages mentioned above) and the most relevant CSR issues for law firms.
A lawyer’s disclaimer – Because I practised law in Australia where I can only call myself a lawyer if I hold a current practising certificate, I cannot say in any current sense that I am a lawyer. I was a lawyer and still carry the scars and benefits of having done that!
I should also add that the lawyers I work with are almost all entirely motivated to embrace CSR.