The Geopolitics Of Selecting Lawyers
Companies talk about being 'represented' by particular lawyers. Shouldn’t those lawyers match their values?
Ed. note: Please welcome Sean West to the pages of Above the Law. He will be writing about geopolitics and the practice of law.
Recently US Congressman Steve Cohen (D-TN) sent a letter to the Biden administration urging that the US ban visas for six British lawyers he accused of enabling Russian oligarchs to silence journalists through “abusive lawsuits.” He urged that the US “establish deterrents for foreign enablers … and hold to account those enablers … performing this unscrupulous work.”
It has been three months since Russia invaded Ukraine and during that time there has been an escalating chorus of sanctions announced from every corner of the Western world. However, it is only now that the question is being asked — “What about the lawyers?”
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This isn’t too surprising. Everyone has a right to their own defense and everyone, as citizens, has the ability to hire lawyers to try civil matters. As a result, those that represent unsavoury figures are often seen as just doing their job.
But lawyers choose what work they take on. Shouldn’t legal work — the basis of which is trust — be held to a higher ethical standard?
Numerous executives have been canceled on the back of #metoo allegations, prompting companies to transform the way women are treated in the workplace. Very undiverse corporations have recommitted to change in the wake of the Black Lives Matter movement. Companies in pollutive industries have reshaped their corporate missions to embrace green technology. And enterprises find themselves challenged to take positions on everything from voting rights laws to gender rules and norms around toilets and competitive sports.
Corporations wield tremendous power and when they decide to tackle an issue, they move in big ways. While this may involve supply chain commitments like cancelling vendors who use child labor or are environmentally destructive, actions rarely involve the advisors to the company. These strategic advisors often directly influence how the company operates and interacts with its customers and employees in ways that go well beyond sourcing of inputs.
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Companies talk about being “represented” by particular lawyers. Shouldn’t those lawyers match their values?
For instance, if a corporation offloads its highest value knowledge work to law firms that are completely undiverse, the company should not be viewed as wholly a champion of inclusion and equity. If a company engages law firms that haven’t made commitments to sustainability and engage in pollutive travel and printing practices, the client is not free from responsibility.
And, of course, back to ethical choices of who to represent on what.
Congressman Cohen’s assertion is that the UK lawyers — some of whom work for the top British firms like CMS — “are undermining democracy.” Earlier this year, Mischon de Reya, another top UK firm, was fined by the UK Solicitors Regulation Authority for “facilitating transactions that gave rise to a risk of facilitating money laundering” while a host of other US firms were disciplined by the same body in recent years for lack of controls and conflicts of interest. A bevy of major US and UK law firms were mentioned alongside investigations of the Panama Papers in 2016 which revealed a Panamanian law firm as a central hub for global tax evasion schemes.
Do other clients of these same firms face a duty to reconsider their relationships if such actions violate their own ethics? If so, this rarely happens.
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Current clients might rationalize the behavior: It was probably a rogue partner that failed to uphold the standards of the law firm. Or that the lawyer has a duty to their client even as the client’s circumstances change. Or that there’s some moral justification that will never be obvious due to the particulars of legal confidentiality. And any of these could be true.
But there’s a more banal reason why law firms rarely face customer cancellations over questionable behavior: Customers generally don’t track the reputations of their advisors. Often, this is because large companies — which can spend hundreds of millions of dollars a year on legal services and which may have over 1,000 in-house lawyers tasking external lawyers — don’t have a clear view of how much money they are spending with a particular law firm, with particular lawyers, and on what. Even when they do, they often have no clear view of the web of relationships or influence that advisors like lawyers have within their entities.
Is this good enough? If a corporation said it wasn’t accountable for human rights violations in its supply chain because it didn’t know they were occurring, the company would likely face boycotts and pressure from civil society or authorities to change course. But if clients of the above law firms were to be asked about continuing to work with them, most would probably be surprised the question is even being surfaced.
If ethical commitments are central to an enterprise’s worldview, the company must hold all of its suppliers to account. That means it must self-police such alignment of its knowledge providers.
The beginning of that is to really understand the state of play. So many relationships with lawyers are built on trust developed over time — often originating from personal relationships. But this must be examined and re-examined as the facts shift. And it must be considered at regular intervals or when a material new piece of work is about to be assigned.
Technology can help in this regard. Companies track their own corporate reputation and alignment with science-based climate goals or quantitatively defined diversity goals using tools that bring together all the data in their entity as well as meaningful information from public sources. Tracking the ethics of advisors is no harder to do. It’s not that the problem is unsolvable — it’s that only a few standout companies have decided to solve it so far.
The new wave of ethical corporations are those who have full alignment in their goods and services supply chains. Lawyers are not “only” knowledge suppliers — they receive some of the most highly paid and highly valued work that a company offloads, and have strategic impact on the direction of the enterprise. A company must hold its knowledge partners especially to its highest standards.
Sean West is Co-Founder of Hence Technologies, a software company that transforms how enterprises work with external counsel. He was previously Global Deputy CEO of Eurasia Group, the geopolitical advisory firm. He writes a biweekly column in Above the Law on geopolitics and the practice of law.
