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Nicole Bigby on new lawyering


I had a very interesting discussion with Professor David Wilkins of the Harvard Law School Centre on the Legal Profession about their recently published multi-disciplinary perspective on "Lawyers as Professionals and as Citizens: Key Roles and Responsibilities in the 21st Century".

Ben Heineman (former GC of GE), Bill Lee (former chair of WilmerHale) and Prof. David Wilkins have leveraged their particular areas of professional expertise and articulated:

"a practical vision of the responsibilities of lawyers as both professionals and as citizens at the beginning of the 21st century. Specifically, we seek to define and give content to four ethical responsibilities that we believe are of signal importance to lawyers in their fundamental roles as expert technicians, wise counsellors, and effective leaders: responsibilities to their clients and stakeholders; responsibilities to the legal system; responsibilities to their institutions; and responsibilities to society at large. Our fundamental point is that the ethical dimensions of lawyering for this era must be given equal attention to - and must be highlighted and integrated with - the significant economic, political, and cultural changes affecting major legal institutions and the people and institutions lawyers serve." (p.5)

Their essay sets out a broad based joint action plan, as part of HLS' Professionalism Project, for the substantive elements of legal services value-chain - law schools, law firms and in-house departments - to actively use 4 key ethical duties to clients and stakeholders, the legal system, their institutions and society at large as a framework to assist lawyers in navigating and fulfilling their roles of expert technician, wise counsellor, and effective leader.

"To effectively discharge these responsibilities, [the essay] argues that lawyers must not only have "core" legal competencies but also "complementary" competencies involving broad vision, knowledge, and organizational skills that, while not unique to lawyers, are essential to the counselling [sic] and leadership roles. This ... framework goes beyond the limits of the bar's formal ethical rules and challenges lawyers as both professionals and as citizens.” (pps 5-6)

Developing this broader, integrated triumvirate of lawyers' roles is an interesting challenge to the accepted position (and general view of duty of care) that lawyers advise on the content of the law and the question "is it legal?" - albeit in a manner which is aligned to the context within which the legal advice will operate.

However, this is increasingly becoming a more nuanced question requiring a broader perspective and analysis of context, specifically for in-house lawyers and progressively their external counsel. It is a question now about "not only is it legal but is it acceptable" to undertake this course of action in light of the organisation's codes of conduct and its position and commitments to business integrity and ethics, sustainability and reputation risk management. There are similar ethical considerations but at a personal level in respect of clients who are individuals. This becomes an even more complex picture when viewed against the dynamic inter-action between "hardening law" and/or business integrity issues, the need for demonstrable compliance and greater regulator focus on conduct and culture in respect of regulatory supervision and reporting. It is a more acute challenge for sectors, such as legal services, where the behaviour of its participants are regulated by reference to explicit ethical principles, such as upholding the rule of law and administration of justice and acting with independence and integrity.

The authors similarly argue that the "ethical dimensions of lawyering for this era must be given equal attention to - and must be highlighted and integrated with - the significant economic, political, and cultural changes affecting major legal institutions and the people and institutions lawyers serve". By way of example, service of two key principles - the rule of law and internationally recognised legal norms, such as human rights, are issues we need to grapple with in this debate and are being progressed further through the IBA's work on draft Guidance for Bar Associations (and business lawyers) for the implementation of the United Nations Guiding Principles on Business and Human Rights ("UNGPs") concerning law firms and legal practice and the UN Global Compact's current project on Business for the Rule of Law .

HLS' proposals are based on an end to end analysis of the legal services "value-chain" (law schools, law firms and in-house departments) with a view to identifying how each set of stakeholders engages with core ethical duties and their broader responsibilities to legal institutions and fundamental legal principles and, lastly, identifying at a practical level how to equip lawyers with the requisite skills to engage with these issues and provide more nuanced analysis. Equipping lawyers to undertake the "ethical dimensions of lawyering" requires tri-partite commitment and work to:

• Identify the competencies and skill sets (and supported by access to and supply of know-how) required across the profession to support the new dimensions of legal roles

• Explore new collaborative and creative ways of working across the 3 pillars which could better support development of these skills and experience

• Improve the focus on teaching lawyering in specific contexts that breaks down barriers between theory and practice and advocates greater use of practitioners to team teach with academics.

The recent application by Nottingham Law School, part of Nottingham Trent University, for an ABS licence which (assuming it is successful) will enable it to offer, effectively, a "teaching hospital" environment with a unique combination of formal education and experience in a regulated legal practice environment through its legal advice centre is a very good example of such an approach. The centre's work includes student work on cases and local community outreach projects, a miscarriage of justice project, public legal education projects and overseas placements.

The overall aim of the Professionalism Project and the HLS essay is to achieve consensus across law schools, law firms and in-house departments about a concrete action plan to progress these these objectives. It is already an ambitious objective.

However, further work is required to develop greater coherence across legal risk management, business ethics and integrity risk assessment, due diligence and compliance frameworks, and practical guidance and tools to assist lawyers to develop a consistent frame of reference to identify, measure and report on these issues. Legal risk management tools using business frameworks and approaches would seem a logical and relevant place to start in taking this dialogue forward and developing greater discipline and practice tools.

Finally, the authors suggest that firms should "at the outset of important engagements, seek a related and reciprocal commitment from the client that the job of the firm is not just to provide astute lawyering (what is the law), but also wise counselling (what is right)."... (p.45)

Moving unequivocally into this sphere presents challenges for lawyers but equally compelling opportunities to define and develop an advisory approach and skill set that truly differentiates what lawyers bring to the table as trusted advisors and professional services providers.

Surely an "ethical vision of lawyering" is also our most valuable competitive advantage?

Feedback

I encourage you to discuss HLS' proposals with your external and internal stakeholders - client legal teams, legal and other professional training providers and your risk and compliance, know-how and training departments.

HLS is actively seeking comments on their proposals. Please do engage and provide it.