Breaking free: The role of the lawyer in a corporate environment3. August 2017
As WagArb continues to grow and attract young lawyers, students and trainees, I find myself often talking – or should I say lecturing? – about the role of the lawyer in today’s professional environment. I have been told by some that I should write this down.
My thoughts revolve around a central question: how and to what degree does the role of a lawyer, in the true sense of the profession, fit into the concept of a professional law firm with a corporate structure? Are the interests of each compatible, or are the characteristics of the corporate environment inherently at odds with the core duties and obligations of individual lawyers?
This question is pertinent because the legal profession is a liberal profession. This means that the lawyer maintains a free and independent position and is beholden to her or his conscience only, within the boundaries of the mandate that has been given to her or him by the client. Thus, the liberal profession of law is arguably not a service which should be submitted to the rules of business. Rather, it is a profession which entails individual responsibility in safeguarding the practice and the rule of law. How then can a legal professional truly fulfil their role, given the trend of developing corporate structures as we see in law firms today all around the globe?
The role of the lawyer: safeguarding the rule of law
The role of lawyers as formulated in domestic laws and professional rules of conduct varies to a certain extent from country to country. However, it appears that many jurisdictions share the same essential vision (at least on paper) of a lawyer’s role.
In Germany, the Federal Lawyers’ Act foresees that the lawyer is “an independent agent in the administration of justice” and “practices a liberal profession”, while in the US the Model Rules of Professional Conduct provide that a lawyer is “an officer of the legal system and a public citizen having special responsibility for the quality of justice”. The Swiss National Act ensures the “liberality” of the lawyer, the Russian Code of Professional Ethics of Lawyers describes the “professional independence of lawyers” as a “prerequisite of their trustworthiness”, and the French National Act similarly envisages the legal profession as “free and independent”. In China, on the other hand, the national Lawyers’ Law provides that a lawyer “must base himself on facts and take law as the criterion” and must subject her or his practice to the “supervision of the State, society and the parties concerned”.
If we look to the Basic Principles on the Role of Lawyers adopted by the United Nations in 1990, a broad consensus emerges. The general understanding of the international community on this is described as follows: “Lawyers shall at all times maintain the honour and dignity of their profession as essential agents of the administration of justice”.
Maintaining the rule of law as an agent of justice, especially in the face of opposition by the client, requires a certain level of character and courage. Of course, the lawyer has an important duty to her or his client, and must advocate for and protect their interests within the prescribed mandate. However, the lawyer is not obliged to represent her or his client’s interests at any cost, in all circumstances. Rather, the paramount duty is to ensure – in direct communication with the client – that the rule of law is upheld. In light of this duty, it is not overly-ambitious or lofty, but rather appropriate, for a lawyer to consider herself or himself a guardian of the rule of law.
The inherent conflict to the lawyer’s profession in a corporate setting
It is crucial for the development of a true legal professional that the lawyer is in principle free and not constrained by rigid corporate structures or so-called corporate identities. An effective and valuable lawyer must be an advisor to the client with her or his entire personality, rather than simply imparting strict knowledge of the law. If the key function of the lawyer was to regurgitate the law, without nuance or personal experience, this service could be carried out by a well-engineered A.I. Further, a successful lawyer needs experience, and that experience will only be gained if she or he is exposed to direct personal relationships with clients and their counterparts.
It follows that corporate environments will be in conflict with the profession if they do not allow room for the essential liberality of a lawyer’s role. A rigid corporate structure will ultimately be incompatible with the true spirit of the legal profession, a spirit which every lawyer hopes to experience at some point of her or his career.
One may very well ask: do we need corporate structures at all in a law firm? Does a firm need to embody a so-called corporate identity? And if so, how do we define it? Isn’t the corporate identity of a law firm simply the plurality of the individual characters and personalities of its professionals? Can that be distilled into a corporate law firm name, logo, or design? And most importantly: does the client care? Has anyone ever conducted an honest and credible survey about whether clients really care about such things? Every time I get feedback from a client, it relates to the quality and the sustainability of my advice. No client has ever given me substantial feedback about my corporate design and market appearance.
When I set out on my own in 2013, I was obviously very concerned about establishing a working trademark. I wanted a powerful and impressive website that would show the person looking at it how experienced, talented and professional I was. I wanted business cards and a corporate letterhead that would all fit together, and I still believe that I would do it all over again in the same way if I was confronted with that situation today. However, something struck me in the process.
As I put together my corporate design, I contacted close relatives and friends to garner their feedback. That included my mother, who for me is one of the highest authorities when it comes to creativity, aesthetics and writing. A journalist earlier in her life, she still has the gift to combine text and image like no other. I asked for her opinion, and she replied: „My son, I am sorry, but I will not be able to provide you with any helpful feedback in this respect. In fact, it seems awkward to me that a lawyer would market himself through advertisement techniques. To me, a lawyer exercises a noble profession that does not require marketing. It is someone you go to when you seek counsel, almost like a doctor that you see when you need medical advice. It is someone that you will find and not someone who will be searching for you.“ This is in line with what a client once told me, who today is one of my most important accounts. He said: „In my view, you don’t need a website and you won’t even need a business card. The way you provide your legal advice is so unique that mouth-to-mouth propaganda will do.“
A third anecdote offers similar lessons: Before I started my career as a lawyer, one of my mentors, a real ‘old-school’ gentleman in his early 70s (and an experienced practitioner), asked me why I wanted to become a lawyer. I replied that I had completed all of my exams, plus additional degrees including a doctorate in law, and that I had interned with various law firms and gained experience in the field. He replied that this may qualify me to practice law, but that it did not answer his question. I was stunned. He told me that he was missing something, and that something was the willingness and desire to help the client. He compared the lawyer’s role to that of a doctor caring for their patient; listening to their needs and concerns, providing a diagnosis, and then accompanying the patient through each step of their treatment. Throughout my professional career, this observation has proven to be an essential piece of advice, and it has taken many years to truly comprehended its meaning.
Striking a balance
The question now is whether the role of ‘caregiver’ is terminally incompatible with corporate structures in a law firm. Would it not be possible, in some way, to maintain a caregiving attitude in a corporate environment? Surely they are not mutually exclusive concepts. Moreover, corporate structures may provide for standardized procedures, accelerating certain steps in the counseling process. The efficiency to be gained will naturally be beneficial to the client. On the other hand, excessively rigid corporate structures may be harmful to initiative and personal responsibility, which are both crucial features of the legal profession. Thinking independently and individually, with the client’s requirements, concerns and needs in mind, is key.
It follows that corporate structures will be helpful wherever they create a benefit in the process, for instance, when it comes to basic organizational issues and internal efficiency. But for all other fields of interaction, meaning the individual advice or ‘care’ afforded to the client, the organizing and structuring of the case, it is the individual personality of the lawyer which plays the most essential part.
The road ahead
It is evident that the profession of law and corporate law firm structures are in constant contradiction and tension with one another. They need to be constantly harmonized, without forcing too much compromise on either side.
In conclusion, I would argue that any law firm composed of a certain number of lawyers, even just two, is a true pluralistic and democratic system. This system will only work successfully, if the competing factors – the liberal profession and the corporate structure – are adequately balanced. Ultimately, the corporate structure must adapt to enable the development of the legal profession as well as preserve its integrity.
Über den Autor
Über Wagner Arbitration
Die Kanzlei WAGNER Arbitration hat ihren Sitz in Berlin und ist auf gerichtliche und außergerichtliche Streitbeilegung mit Schwerpunkt Schiedsgerichtsbarkeit spezialisiert. Eine weitere Kernkompetenz ist die Beratung im nationalen und internationalen Wirtschaftsrecht.
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