What leaders of law firms can learn from quantum physics
I tried to relax over the holiday period reading Carlo Rovelli’s elegant distillation of quantum physics, Helgoland. The relaxation arose not because I understand quantum physics: I categorically do not. However, I do delight in knowing there are such strange phenomena in our world as entanglement, superpositions and interference and that there are human minds that combine the intelligence and imagination to not only identify them, but to relate them back to our everyday world. Rovelli does this with (relative) simplicity and beautiful prose. Added appeal comes from his focus on contextuality and interdependence and by making relationships the foundation for everything. More on these later.
Helgoland is the story of quantum physics, so it is a tale of humanity striving to come to terms with a new way of looking at the world we are a part of. There are potential lessons for us all – including lawyers – in terms of how we might behave in these times with the world we thought we understood not only ceasing to make sense, but becoming actively harmful to us. This is why even the title to Rovelli’s short preface to the book, Looking into the Abyss, resonates. It is instinctive for many, in such a situation, to look away from “the abyss of what we do not know”. Instead, Rovelli asks us “to renounce, in one way or another, something we cherished as solid and untouchable in our understanding of the world” and “to accept that reality may be profoundly other than we had imagined”.
Beyond that basic instinct to look away, there are obvious reasons why those running the largest law firms may be reluctant to let go of a world view that has served them so well. Despite the turbulence of recent years, partner drawings have continued to rise and their clients have generally prospered. The horrors of famine, drought, wildfires, floods, enforced migration, the losses of jobs and homes and the cost of living crisis have all remained remote.
As we all know, past performance is no guarantee of future results. That statement is more relevant now than ever. The lifestyles and policies that have underpinned increases in standards of living in many places have reached the point where, in the Global North, these have long plateaued. They have also driven the increase in carbon emissions, destruction of biodiversity and acidification of the oceans which now threatening the lives of billions of people. We know now that globally almost half of all CO2 arises from the activities of just 10% of the population and the wealthiest 1% being responsible for twice as much CO2 as the bottom 50%.
This is where Rovelli’s reference to context is relevant. Everything, he asserts, exists (and only exists) in context. Over the last thirty years (and beyond), the context has generally been that law firms have not been expected to consider the consequences of their clients’ activities on which they advise. They have just been contributing to the operation of the global economy. For the next thirty years (and beyond), the context is different. Continuing to advise on activities which generate carbon emissions, destroy biodiversity and make the oceans effectively uninhabitable for marine life is consciously contributing to reasonably foreseeable harm. It is vicarious liability at such a scale that it is unenforceable. Or that might be the legal position: we are all culpable, so what is the purpose in prosecuting?
And this is where different realities come into play. There is the reality we have constructed for ourselves, based upon assumptions that economic growth and increasing financial returns and the pushing of risk elsewhere are the measures and methods of success and so the frame in which we must operate. Then there is the reality that the pursuit of economic growth and ever-increasing financial returns will guarantee and accelerate climatic, social and economic breakdown and pushing risk elsewhere does not remove it, it just means it returns later in another, potentially more virulent form. In the short term, some may still prefer to try to hold the reality that is a human construct together a little longer, clinging to the familiar. A decade ago some may have countered by saying that their descendants would not thank them for that. Today, many of their colleagues and their own children will not thank them for that immediately. A decade on, and they may find themselves needing to rewrite their own histories to avoid widespread castigation. Things are moving that fast.
This does, of course, make it difficult for today’s leaders of law firms. So does the position we find ourselves in. Rovelli equates reality with interdependence; in other words, nothing exists independently of anything else. However, much of how we and our clients are expected to behave is based upon binary perspectives. As solicitors, we have a fiduciary duty to act in our client’s interest. We will act for dozens of clients in a year. Quite possibly, what our advice enables one client to do will be harmful to other clients of ours, or to the public at large, even maybe to the client itself in the future – but that is rarely taken into account.
Our business clients are run by directors with fiduciary duties to the company. This is interpreted as being to make it more profitable for their shareholders which is usually accomplished at some cost either to certain stakeholders of the business or the public at large but – unless their governance or shareholders indicate otherwise – this dictates their behaviour, including what they require of their advisors.
Their shareholders may be institutional investors whose duty is to deliver financial returns, along with financiers generally. Again, pursuing this goal via one investee company, or sector, may actually be harmful to the financial performance of their portfolio as a whole, but currently few actively take this into account in their engagements with individual companies.
So, even as more and more of us recognise the interdependence of our existence and the urgency of taking it into account, our laws and conventions inhibit us from doing so. We must not pitch these two realities as alternatives we must choose between. We must either adapt or replace the system we created that is no longer serving our interests and replace it with something which reflects the understanding we now have of the relevance of our relationships with one another and the wider natural world we are part of.
The decisions we take around how we behave as lawyers, and as legal businesses, will have greater consequences than those of our predecessors (and, perhaps, our descendants). We can pretend otherwise (and probably, as a result, do little until the reality of natural forces blows away our flimsy construct), or we can embrace it, challenging as it is, and at least demonstrate to those who will be most affected by it, that we tried. Here, too, Rovelli has words which may offer some guidance:
I believe that one of the greatest mistakes made by human beings is to want certainties when trying to understand something. The search for knowledge is not nourished by certainty: it is nourished by a radical absence of certainty. Thanks to an acute awareness of our ignorance, we are open to doubt and can continue to learn and to learn better. … There is no cardinal or final fixed point, … with which to anchor the adventure of knowledge.
Whilst clients of law firms might reasonably expect a degree of certainty and knowledge underpinning the advice they receive, my hope is we are entering a time of new and generative relationships between lawyers, clients and other professionals; where competition and financial performance are not the predominant motifs, but the focus is on collaboration for mutual benefit, as transdisciplinary groups coalesce around problems, develop solutions collectively and share their findings for wider flourishing.
It may seem a quantum leap from current practice, but would be consistent with latest scientific and philosophical perspectives on reality – and far more benign than our present route march to the abyss.