Embracing Uncertainty: an Invitation
When I think of change these days, I see the cartoon character the Road Runner, perpetually racing ahead while I, Wile E. Coyote, plot fruitlessly to get a grip on it. There’s lots of talk of the ‘new normal’, but this doesn’t describe one established way being replaced by another, but multiple different situations piling in: a constant ‘normal’ only in the sense they share the common characteristic of mutability.
I’m pretty sure it’s not just me getting old. It may be that too, but I have been reassured by discovering academics have a name for this, and it’s metamodernity. This translates (very loosely) as a recognition that we are living in a time between worlds – something those harbouring a nostalgia for, or taking solace in, eighties indie music might like to think of as Inbetween Days.
I won’t list here examples of the changes I mean. Not only are such lists ubiquitous currently, but we are all aware of it all around us and many experiencing it directly. If you want a snapshot, the Financial Times provided a sobering one recently. What I will do is explore what this means for me as a practising solicitor, hoping it may resonate with my peers – and beyond the profession.
As Margaret Atwood has it in The Handmaid’s Tale, “Context is all”. Or perhaps more pertinently, as Sir Thomas Lund, the Secretary General of the Law Society stated in 1960, “standards of professional conduct change as time passes. What is entirely proper for one generation may be slightly irregular for the succeeding generation and highly improper for the next”. Is it credible to keep on doing what I have always done as if practising my profession in a vacuum? And if the answer is negative, then how should I do it differently?
I have looked at this through the lenses of five relationships: with the clients I work for; the colleagues I represent; the profession I am a member of; the society I am a part of; and my own aspirations for my work.
As for most solicitors, clients and my relationships with them are central to my work: no clients, no job. Each client naturally expects me to act in their best interests. Indeed, this is enshrined in my professional duty to my clients. However, zooming out, this creates a situation where at any moment in time, there are thousands of lawyers all seeking to satisfy this objective. Often the achievement of this by some will be at the expense of others failing to manage to do this for their clients. Often, it will not be directly to one party’s detriment, but potentially at the expense of multitudes. This is happening right now, as lawyers advise clients on new oil and gas developments, which not only the global scientific consensus but the International Energy Agency itself confirms will condemn us to unbearable climate heating and all that brings.
What has always been true, but what has become so much harder to ignore in recent years, is the interdependence that affects us all (human and more than human). How might I incorporate that reality into my client relationships? It is as relevant to them as to me, after all. And to the parties they will be engaging with. A uniform approach taking this interdependence into account would probably do more to create a liveable world for all in coming decades than the current, clearly failing, practice. But how to get there from here, when it is so at odds with the notion of acting exclusively in my clients’ interests and their assumption this is what I will do?
It would certainly mean a different conversation with my clients. The usual established approach remains that a client gets in touch with a specific ask which they think I can help with. They want to know I can help them, how long it will take and how much it will cost. Generally, they don’t want a discussion about wider systemic impacts, particularly if they think they will be paying for that discussion and its consequences.[1]
This leaks into the relationship a solicitor and their firm. The business model of almost all law firms is to sell their lawyers’ time and expertise and measure success by how much money the equity partners take home each year. The more hours staff work, the more can be billed and the more we can be paid. The glittering prize is partnership but often the expectation is you are only worthy of this if you will demonstrably grow the pie – i.e. bring in more fees so that the other partners’ shares do not go down because you have joined them. In other words, a perpetual growth model in a finite world, a linear progression in unpredictable times, and a relentless pursuit running contrary to protestations of caring for colleagues’ wellbeing. Some might call this unsustainable.
Again, the how do we get there from here question feels relevant. Do we invest in clients embracing transition on the basis they are more likely to be around and successful a decade from now, even if that means working for them at lower rates now to develop new ways of working? Do we subsidise this with lucrative work which facilitates harmful impacts? What are the career implications for colleagues involved in each type of work, in terms of matters like short term salaries and longer term futures? Do we turn the harmful work away?
This is something that firms have always done, whether for reputational reasons (eg spurning arms manufacturers, tobacco companies, pornographers, dictators) or economic (pricing their services beyond what the majority can afford). However, thus far they have been slow to do this publicly in the context of environmental and social harms and their wider consequences. There has been a tendency to strike poses of impartiality or agnosticism, claiming it not to be the lawyer’s role to judge. Such poses are wearing increasingly thin.
Aspirations to remain apolitical don’t wash when the government politicises the law - as the current UK one has done repeatedly of late. It means attempts to be apolitical are political in themselves. Adopting an amoral stance also does not work, as we know that increased greenhouse gas emissions and the accelerating extinction of species will cause foreseeable harm to millions and our advice is contributing to that harm.
One argument often raised is that ‘if we don’t act on this matter, some other law firm will and the emissions will still happen, so we may as well do it’. This is, of course, the Drug Dealer’s Defence – ‘they are going to take drugs anyway, so it may as well be from me’. In the context of what we are collectively facing, the widespread adoption of this stance amounts to a death sentence as, played out across the profession and the economy, it guarantees casualties for the foreseeable future.
Our regulator too finds itself in an uncomfortable position. It, also, is expected to offer certainty; something which is inevitably harder in such febrile times. The regulator has the unenviable task of trying to provide reassurance to the clients of the profession that its exponents will maintain standards in their interests. It must also reassure the public that the profession as a whole is trustworthy and acts in, rather than against, the public interest. And the profession itself is always peering closely to see whether the regulator is imposing unreasonable demands or constraints upon it – and wants to know exactly where we stand.
It should already be evident that the interests of clients and the public at large may not always align, at least if the former is looking through a short term economic lens and the latter a longer term systemic one. Similarly, the balance between hard and fast rules (certain) and more general principles (flexible, open to interpretation) introduces a degree of subjectivity which will be more or less popular depending upon how they are interpreted in specific scenarios.
Amidst the uncertainty, some facts can be relied upon. It is in the public interest to limit climate heating in line with the best advice of the global scientific community. We need to live within the resources available to us on this planet. We need to reverse the destruction of nature that has taken place over recent decades. It is also the case that this needs to happen during the careers of those now practising law who were born after 1990 and all those who come after them. These same facts will be equally relevant to our clients. In other words, there is certainty: we just have to cross an uncharted bog of uncertainty to get there.
Or, looked at another way, this is an opportunity for the current and coming generations to elevate their profession to being an active contributor to the mitigation of and adaptation to climate heating which will be the central driver of human endeavour during their lifetimes. It is evident that for that to happen requires fundamental shifts in how the profession perceives itself, and the nature of its relationships with clients and wider society. On this last point, the Pledge recently made by London based Bates Wells offers an example of what that might look like – though admittedly their pedigree means this is less of a shift for them that it would be for most firms. Whatever type of firm one is, or has been, all have to be ready to answer the question, how do we see our role in a world with 3°C of warming as, currently, that is the world we are creating through our present practices.
In such a world the role of the profession will definitely be in the spotlight, particularly in relation to those core societal issues of justice and democracy. Will lawyers be focused on supporting efforts to ensure constrained resources are shared to meet the priority of satisfying the basic needs of all? Or will they follow the money and help clients who may have hoarded those resources and/or the means to access them to keep them for themselves regardless of the consequences for others?
I would like to believe most lawyers would rather avoid such scenarios coming to pass, partly because we don’t wish such suffering to be visited upon so many, but also because we cannot be entirely confident how we will behave if the worst happens. We can act now to increase the prospect of heading this off, but it does mean either adopting some of the ideas mentioned above, or coming up with better alternatives. Business as usual is not an option and where it is pursued it amounts to a political, immoral stance which wilfully contributes to serious and widespread harm.
This all means that established legal concepts need to be revised. Precedent will be for AI and the routine work. Creativity, already being demonstrated in the governance innovations developed by Lawyers for Nature, the new ways of approaching legal careers being explored by Legal Voices for the Future and the new contractual resources provided by The Chancery Lane Project are green shoots of what the profession of the future may look like. A concept like ‘void for uncertainty’ may be replaced with ‘redundant for regression’.
All of which is not to say embracing uncertainty is an end in itself; it is no excuse for indecision. It is a beginning: an important acknowledgement of being open to new ways of being a solicitor and a condition which may remain in some respects and to some extent for those proving to be best fit to practice in this time between worlds.
[1] In fact, increasingly, this is changing and clients are open to those conversations, but across my practice and the profession, these are still the exception rather than the norm.