If you read my Unreality Check post, you will know I believe we will not be going back to normality (as currently imagined). Normality is now an ocean of crises, breaking upon us in waves. As lawyers, we are incredibly fortunate, being blessed with skills and status which give us the opportunity to contribute meaningfully to meeting the challenges this normality will present. It will, though, mean a radical reappraisal of our role in society and our relationships with clients and colleagues. This would be difficult at the best of times, but is even harder as we need to work and practice within the failing system at the same time as giving life to a new one.
Perhaps we should start by acknowledging we lawyers have been complicit in many of the practices that have led us to where we are now. I don’t say that to condemn, but to recognise that by compartmentalising – that is, by separating our actions off from their consequences – we have been able to ignore the harms that have been inflicted on elements of society and the natural world by the clients we have enabled with our advice and endeavours.
At the heart of this culture of compartmentalisation has been the principle that to externalise costs and harms so that they are someone else’s problem is a valid business and organisational strategy that will help you succeed. Often, our role as lawyers is to ensure our client is not legally responsible for the harms flowing from their activities. In doing our job well, we implicitly excuse our clients and ourselves from having to take responsibility in any other respect for those harms even though, if we take a moment to think about it, they still exist and the objective causation (and our role in it) remains. To go there would be terribly inconvenient, however, and in a culture that has increasingly valued convenience above almost all else, it would be perverse.
Yet externalising only works where there are places to hide things out of sight. When the consequences of climate heating and biodiversity loss, the exhaustion of top soils and diminishing fresh water supplies mean we can no longer ignore the cumulative impact of this approach, it is time to step into our responsibility.
Right now we are awash with initiatives demonstrating commendable intent to make the world a better place for all of us. We can celebrate the existence of the Sustainable Development Goals, the Paris Agreement, the NRDC 30x30 Plan and the increasing emphasis on ESG issues in big business. However, the actions of national governments, our biggest corporations and the financial markets (and the learned actions of millions of us in our role of consumers) undermine those aspirations. This happens because the cumulative effects of those many actions have not impacted us yet at scale. The aspirations contained in those initiatives remain the icing, when they need to be the cake.
So the question for me is, before the worst effects of the way we currently work and live do begin to bite, are we prepared to start doing things differently, and to see collective social and environmental objectives as the substance of what we seek to achieve and financial rewards as the secondary benefit? It feels, at the moment, as if many of us know this is necessary, but feel powerless, alone, to make it happen. No one sector of society, whether it is politicians, investors, business leaders, or their professional advisors can make it happen alone: all need to demonstrate a desire and willingness to go there together, and that includes us lawyers.
Do we, as lawyers, want to step up and apply law and practice in ways which enable those collective aspirations to come within reach? Can we provide guide rails, through the governance arrangements, contractual relationships and professional practises that we are involved in, to position our interactions on foundations based on the health and wellbeing of, and justice for, all, as opposed to the property interests of a few? And, critically, how do we reconfigure our relationships with clients so this is how they want us to behave and advise them, and is something they are happy to remunerate us for?
It feels like some grown up conversations are called for. Is anyone up for having them?
Yes, always. You can find my contact details here https://juliansummerhayes.com/services/