The ethical dimensions of in-house practice are a significant source of academic and practical interest, as the recent investigation of GM suggests. I have the pleasure of doing two projects where I engage with in-house lawyers on ethical questions: one on the ethics of legal practice and the other on legal risk. So it was with great interest that I read Bond Dickinson report Beyond Responsibility: The emerging role of legal counsel in sustainable business.
It is a recent contribution to the idea that, ‘sustainability presents real opportunities for in-house lawyers to make a valuable commercial contribution beyond purely legal [and environmental] issues,’ says Victor Tettmar, BD’s executive partner. Based predominantly on a survey of 51 senior in-house lawyers the report states:
- Three quarters (75%) of the senior legal counsel we asked in the course of this project said that sustainable business goals are seen as an important or integral part of value creation for their organisation. As one respondent put it, ‘I am of the absolute conviction that sustainability is inextricably linked to business performance.’
- 72% believed that over the next five years sustainability will be integrated into organisational strategy with commercial decision making rather than regulatory pressure seen as the main driver.
- 66% of respondents said that the sustainable business agenda of their organisation has impacted on their own role, and/or the work of the legal team.
Quite what is meant by sustainabilty is a little less clear but:
‘For some, the focus may be on corporate governance and resource security in the supply chain. For others it may be service or product innovation to meet future customer needs. For others still it may be ensuring a resilient, skilled and motivated workforce in the face of changing social norms. All these endeavours have significant legal dimensions.’
And the way in which the legal role is changing may be seen as subtle:
‘This could be through contracts and transactions, corporate structures and policies, promoting a culture of best practice in sustainability, advising on ethical as well as legal considerations, and giving forward-looking commentary on legal developments to business units.’
Somewhat contrarily to the idea that sustainability is a positive, ‘Lawyers are approaching sustainability first and foremost as an organisational risk factor.’ They may also ‘system engineer’ alignment between sustainability aims and other corporate policies and processes and seek to contribute to strategic evolution of sustainability within the company, it is said. There is also the not uncontroversial claim that:
‘Many in-house lawyers recognise a need to create and protect ‘moral capital’ for their organisations, as increasingly well-informed stakeholders expect businesses to not only do what is ‘legal’ but what is ‘right’. Lawyers’ training and skills in dealing with ‘the rules’ make them well equipped to help their organisations make wise decisions in the context of these changing ethical dynamics.’
An interesting question for me is the extent to which agendas such as sustainability open up a space within which lawyers can explore public interest dimensions to their work or whether this is a form of reputation management (with both positive and cynical dimensions to that).
Public interest dimensions are an aspect of their professional code, but rarely recognized by lawyers as such. Do lawyers’ prefer to look to the client or the business for ethical leadership? A client first mentality tends to suggest to me – with exceptions, this is a generalisation – that they do. Sustainability agendas (similarly business and human rights initiatives, such as the Law Society’s work on the Ruggie principles) may prove to be tentative steps towards a fuller engagement professionally.
Reports like this are often couched in terms of how sustainability presents a career opportunity for in-housers (this report plays that tune but lightly). And if one subscribes to the importance of believing in doing something because it is right, rather than because it is remunerative, there are moments of rather despairing ‘business case-ism’. I noticed this not so subtle reversal of priorities:
He’d just realised that climate change was not just about ethics. It was a business imperative.
But it is a commercial world, and one may have to live with occasional crassness to see the opportunities for ethical improvement in the corporate and professional world.
The report can be read here.
Richard is professor of law and professional ethics at UCL. You can read his blog here