Last week a contributor to BBC Radio 4’s “thought for the day” shared a few words that stayed with me and it felt good to reflect on them for a while.
“Do not conform to the pattern of this world, but be transformed by the renewing of your mind” (Romans 12.2)
For those who have followed my blog for the last year or two, you will know that I often dwell on the role of lawyers in business and in society. You will also know that I feel things are a little broken at the moment, despite the professional rules that apply to all, and the considerable care and expertise shown by the vast majority.
Whatever brilliance we know is achieved each and every day, we know that bad stuff happens too. In recent years we have seen the Post Office scandal; examples of NDAs used to suppress whistleblowing and to protect the perpetrators of significant harm; and law firms that aggressively represent State actors or global businesses with limitless resources to fight, deflect, delay and intimidate.
It is an uncomfortable truth that good people, with good intentions and honourable track records are sometimes at the heart of situations that in hindsight look like they helped to facilitate harm.
There are wiser people than me who will say that to play hard, but within the rules, is perfectly legitimate; however, I cannot help wondering if we are grooming our younger lawyers to be brilliant tactical magicians, while failing to develop their sense of humanity and justice.
In part my worry is about the tension between powerful people and institutions, and the lawyer’s duty of independence. At what point are overwhelming resources and intimidatory power a disfigurement on our sense of fairness and of what is right?
The preeminent ethical duty is not to undermine the administration of justice and in doing so to act with integrity and with independence. The role of lawyers therefore is to balance power with enough checks and controls to ensure that justice is served first. The role of lawyers is to help create the level playing field for evidence to be weighed. However, the role of lawyers is also to speak truth to power and to hold a standard well above what is merely expedient.
When a law firm acts for a global corporation or a state actor against an investigative journalist, for example, is it right to overwhelm the journalist with intimidatory and costly process?
When whistle-blowers are silenced by NDAs prepared by the legal team of a sexual predator, is the client funding lawyers to undertake reputation laundering?
When deliberately crafted words so imbalance a contractual relationship a sub-postmaster becomes liable for accounting discrepancies that are demonstrably not her fault, has the legal team set in train a means to ruin lives?
All lawyers need to reflect that the power of who pays their fees or their salary is not a “happy days” cash-cow, but perhaps a warning flag that requires them to bring their ethical A-game to all that they do.
Reiterating and upholding a meaningful sense of what independence means for lawyers today is one way to frame this need. My concern is that if we are not careful, complacency and a tendency to unthinking acceptance of our own infallible judgment, allows independence to become a passive behaviour that absolves lawyers from questioning and intervening. Provided we have advised on the risks, we can retreat to a safe distance, holding our noses and considerably richer.
I strongly believe that this is not acting with independence.
Independence is a responsibility to positively intervene when something does not feel right. It is the duty to be a critical friend, to challenge and to examine. It is having the awareness and courage to contemplate all the possible consequences of an instruction and to be prepared to give each consequence a voice.
I say this knowing how difficult it will be. No one wants to hear the “cry wolf” lawyer, or the unthinking pedant or to have the thoughtless disruption that flows from an ill-judged intervention – but it is our job to be the intelligent pause for thought.
Neither is this a veiled criticism that executive colleagues are bound to do bad things if left to their own devices; it is simply a reflection that in the swirl of ambition, strategy and operational imperatives we should surround executive talent with resources to support them so that they can shine. Recently a CEO wrote to me to challenge assumptions behind some of my thoughts, and he was right to do so. I accept that there should be appropriate disagreement and not all lawyerly challenge is fair or right. My point is only that it is an important part of our job to speak up.
It is of course also true that we will rarely see when lawyers prevent bad things from happening and challenge with courage. This work will always be off camera, and I know well the care and rigour so many bring to countless situations, but we should therefore talk about it more, celebrate it proudly and let the world know that this is how it will be.
The profession as a whole must be seen to do the right thing. The ESG movement is an opportunity to put ethical thinking at the very heart of business. It creates an expectation of action beyond the self-interested short-term drivers of easy-to-win business and the rough and tumble of corporate life. As lawyers, therefore, we might like to reflect on how we interpret our duties, and how we should act, so that words like “independence” and “integrity” are not casually tossed around like decorative scatter cushions in a gilded executive play area, but have heft and meaning for our modern age.
Do not conform to the pattern of this world, but be transformed by the renewing of your mind.
Take care. Paul xx
