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  • Writer's pictureJaap Bosman

Let's try to be better persons

Updated: Jan 14, 2021

This is the first article of 2021. I have decided to resist the temptation to look back on 2020 and speculate on to what extent 2021 is going to be better. At this point in the pandemic, there is really nothing original to be said. It is eerie how the situation regarding the virus, the vaccines and the economy has exactly developed like we predicted in our book back in April 2020 (read A New Dawn, Chapter 1). However stressing ‘I told you so’, also is not very helpful, so right now let’s leave the virus for what it is.

As by tradition, the first article of a new year is supposed to be reflective or inspirational. I have chosen to focus on a topic that is close to my heart, but not very popular in the world of Big Law where our clients are. So please bear with me. Be assured, from next week onwards it will be practical information as usual.

Let’s start with a question: What do Thierry Herzog (France), Alex van der Zwaan (United Kingdom), Tobias Teufel (Germany), Ulf Johannemann (Germany), Skadden Arps and Freshfields have in common? The answer is: they are all either very reputable lawyers, or very reputable law firms. More interestingly, they are each on trial and are convicted (or about to be convicted) to imprisonment or financial penalties. Herzog is on trial in his capacity as the lawyer of former French President Nicolas Sarkozy; Van der Zwaan and Skadden Arps for their dubious role in relation to Trump and the Ukrainian Government; Teufel, Johannemann and Freshfields for their involvement in the Cum-Ex scandal.

These four individuals and two law firms merely serve as an example on how a highly regarded reputation and standing are no safeguard against ethical misbehavior. Those who still believe that ethical misconduct is something that could only happen to ‘shady lawyers’ or ‘fixers’ such as Michael Cohen, Rudy Giuliani or Sidney Powell, could not be more mistaken. It can happen in the elite firms and to highly regarded celebrated lawyers. You would probably be shocked if you knew how many examples I have personally seen from close by over the past years.

Ethical misconduct can come in many shapes and forms and only very few catch the attention of the public prosecutors and the media like the examples above. There are cases of Me-Too behavior, partners that charge for hours they did not make, lawyers that facilitate money laundering, bribery or corruption. There are lawyers that give false statements, lie to their clients or to the regulators, that antedate documents and so on. You name it, it happens but it shouldn’t.

Often it is in the culture of the firm

To my experience, in the elite law firms, lawyers seldom are inherently bad people. They do not have criminal intent by nature. Only every now and then one of the lawyers over time gradually ends up on a slippery slope, after which it typically goes from bad to worse. Often this process is fueled by the pressure to perform. Pushed to generate revenue, a desperate partner might give in to the temptation to accept a ‘shady’ client or facilitate a ‘shady deal’. Under pressure to perform a partner might resort to unfair billing practices. Fearing to lose a client, the lawyer might accept to produce a document that is not in line with the truth.

Please don’t get me wrong, any behavior that crosses the line is in the end the full responsibility of the individual, but there are certainly things that the firm could do and should do to help avoid bad things from happening.

So, as a law firm leader, what should you do?

  1. Make sure that every new partner meets high ethical standards.

  2. Discuss ethical dilemmas structurally and on a regular basis. Embed it in the training of young lawyers from day one.

  3. Walk-the-Talk and refuse clients that request lawyers to facilitate or enable crossing legal or ethical boundaries.

  4. Create a culture where it is safe to raise ethical questions or challenge perceived unethical behavior. Both internally and with clients.

  5. Have a zero-tolerance policy if it comes to clearly crossing the line. Those who are found guilty of ethical misconduct should be forced to leave the firm. Regardless who it concerns, even if it is your Star Partner.

Walking the thin line

Over the years, I have had many discussions with lawyers on this topic. The argument that I probably have heard most is that ‘it is the duty of a lawyer to do everything for the client and therefore to push the line and look for the limits of what is allowed’. While in general this holds true and a lawyer must maintain his/her commercial edge, it does not mean that all is allowed or ethically justifiable. This is exactly the reason why lawyers need an exceptionally good moral and ethical compass. The mere assumption that Cum-Ex was within the law, does not mean that it is the right thing to do. You want the lawyers in your firm to have a special radar for this. It is this radar that needs to be honed. For other types of misbehavior one need no radar: Me-Too and Over-Billing are never acceptable.

Let’s try to be better persons

The new year 2021 has only just started. We are looking back at a year in which polarization in society has reached unprecedented heights. In the US this culminated in the storming of Capitol Hill. In many other countries similar tensions between parts of the population have arisen. The year 2020 has been highly stressful for everyone. Everyone is physically and emotionally tired of the whole situation and therefor short tempered and more extreme.

As a law firm, we cannot change that, but in fact we can contribute in our own small way. Trying even harder to do the right thing is definitely part of that effort. So let’s work on bolstering our ethical standards and let’s defend the rule of law.

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