Brenna Greenwald
Freshfields, New York
Brenna.GREENWALD@freshfields.com

The Regulation of Lawyers Committee held a session at the 2023 Annual IBA Conference in Paris titled ‘Avoiding the Meatloaf Paradox – I will do anything for my client but I won’t do […]’ where a variety of interesting topics, as outlined below, were covered. Please consider joining the Regulation of Lawyers Committee to stay in the know on key developments in risk management and the issues that govern us as lawyers.

‘I’ll do anything for my client, but I won’t act if it is contrary to my firm values/ESG expectations’

In a wide-ranging discussion with private practice lawyers from Australia, Egypt, England, Hong Kong, Northern Ireland and Taiwan, including barristers from certain jurisdictions, the discussion covered a number of topics:

• Each firm will have its own values and culture, but it can be difficult if partners/staff feel that the client selection do not espouse those values.
• Risk versus reward considerations are more difficult within firms in a competitive market – if the money is good enough, are you prepared to flex your values? ‘These are my principles and if you don’t like them, I have some others!’
• Firms are now seeing increased pressure from clients regarding client selection – eg, do you act for politically-related clients?
• Some firms have ‘next generation’ boards and one boutique firm said it seeks input from their associates as to whether or not to accept particularly challenging mandates from an Environmental, Social and Governance (ESG)/reputational perspective (which is easier in smaller firms).
• Firms noted receiving questions in interviews from junior associates about refusing to act for a particular client and the impact that could have on resourcing etc. Younger lawyers tend to have very strong sets of principles.
• In general, firms/lawyers also need to consider the public relations (PR) angle/potential impact of a particular client or matter.
• With respect to ESG, is the argument that it is better to be in the tent with the client and drive change from within than refuse to work for clients in the exploitive/extractive industries?
• Client selection challenges can be less of an issue for barristers due to the cab rank rule (where applicable), although a lack of capacity and/or competency in a particular area of law are legitimate reasons to refuse to represent a client.
• In some other jurisdictions such as Egypt, it can be more difficult/sensitive to refuse criminal matters but easier in relation to civil and commercial mandates.

‘I’ll do anything for my client, but I won’t engage in abusive litigation – exploring the perceptions and realities around SLAPPs and similar litigious tactics’

With delegates from England, India, Italy, Norway and Nigeria, both in and outside of private practice, the discussion covered:

• All jurisdictions have procedures available in litigation intended to discourage, eg abuse of process. However, the implementation of the rules in relation to abusive litigation is a problem in some jurisdictions.
• A root case of the problem is over-promising and trying to acquire the work by deploying aggressive pitches and then, once the client is onboard, the lawyers may feel obligated to action the aggressive strategy and engage in abusive litigation.
• However, it was also discussed that younger lawyers are not able to say ‘no’ to abusive/frivolous law suits, as they typically take on all the work that comes their way. On the contrary, senior lawyers have more flexibility to say ‘no’ to such cases, as they are not worried about accepting every available case.
• While the court systems can clamp down on abusive litigation, the extent to which there is regulatory scrutiny of lawyers and law firms is much more variable.
• In England, the main legal regulators (Solicitors Regulation Authority and British Standards Board) are certainly taking much more of an interest in strategic lawsuits against public participation (SLAPPs) than elsewhere, but it remains to be seen whether any of this will translate into more affirmative action – and whether or not any actual SLAPPs will be identified.
• There was also a discussion on the culture of ethics and how that is taught in the United States where some suggestion was made as to whether the other jurisdictions should incorporate them in the law school curriculum. The counter argument was that the US is more prone to abusive litigation and, therefore, it is necessary to have a chapter on ethics and how not to launch abusive litigation. Other jurisdictions, such as England and Wales, are already balancing such an act by imposing significant costs in abusive/frivolous law suits that fail.
• In certain jurisdictions, issues relating to conduct in litigation are still overshadowed by wider political issues.
• All were agreed that lawyers in senior positions, including judges, need to set the tone and that there should be a greater emphasis on instilling a culture in younger lawyers of adherence to fundamental ethical principles and taking personal responsibility for issues of professional conduct.

‘I’ll do anything for my client, but I won’t act against them in litigation – exploring commercial conflicts’

With lawyers (including corporate and in-house lawyers, barristers and academics) from Australia, Austria, England and Wales, Guatemala, New Zealand, Nigeria, Pakistan, Uganda, Thailand and the US, the group found that there were many more similarities than differences in how to navigate conflict issues, particularly commercial conflicts and relationship considerations when taking on new mandates, including:

• The conflicts rules vary in jurisdictions such as the US, where simply acting across the table from another client of your firm is a ‘conflict’ requiring consent, or England and Wales, where a conflict is more narrowly defined as advising two clients on the same or related matter where the interests conflict.
• However, the importance of a fiduciary duty or duty of loyalty to one’s client was paramount and regardless of conflict rules, lawyers should consider client expectation when taking on a new client or matter where another client may be involved.
• Many of the lawyers involved in the discussion are seeing an uptick in restrictive or onerous outside counsel guidelines and finding it challenging to push back on these requirements, while also wanting to win new (or continuing) business from their clients where they feel that agreeing to the outside counsel guidelines is required.
• Clients are also increasingly asking that lawyers monitor for ‘issue conflicts’ – ie, where lawyers do not advise on a matter which would involve taking a position contrary to that of another client, even if that other client is not directly involved in the matter. For example, taking a position in a litigation that if successful could negatively affect another client. Most lawyers noted they try to push back on issue conflicts given the subjective or speculative nature of how it might affect another client.
• However, everyone agreed that the duty of confidentiality extends beyond the list of the client relationship and should always be considered when assessing new clients and matters.

‘I’ll do anything for my client, but I won’t come into the office more than three days or work weekends – exploring culture, supervision, and client expectations’

Private practice lawyers and consultants from Brazil, England, Germany, India, Nigeria and the US discussed the cultural, legal and business aspects of dealing with client expectations and ‘working from home culture’. The discussion covered the following aspects:

• In most law firms, there is a tension between the desire to serve clients’ interests in the best way (an ‘I’ll do anything for the client’ mentality) and the need to maintain a healthy work environment and the physical and emotional well-being of the lawyers in the times of a flexible work culture.
• The question is what we, as lawyers, do to ensure client satisfaction? What is client satisfaction? Is it a good order from the court? Is it a good deal? Is it the lawyers’ availability workday and night? Where does one draw the line?
• The firm needs to proactively address the concept of ‘doing “anything” for the client’, that is, to manage the client’s expectations. In most cases, clients’ expectations are their assumptions and hopes. These assumptions and hopes are often based on experience with other firms (not only law firms). Sometimes, they can be seen as unreasonable and unfounded. But the law firm (the partner) might go along with such requests if it serves the ultimate client goals and is beneficial for client relations (and retention).
• In general, however, there is a need to draw a line for serving ‘all’ client expectations to preserve integrity and profitability. This requires awareness and constant monitoring. Lawyers at all levels need clear guidance and supervision regarding when and how to respond to clients’ expectations, reasonable and unreasonable. Such guidance depends on the firm’s culture, traditions and client base.
• In recent years, the desire to meet client expectations is being challenged by flexible work options including the ‘work from home’ culture – now prominent policies are being adopted by firms across the world and are very much appreciated by the young generation of lawyers in the first place. At the same time, the flexible working from home policy is not applied uniformly across the firm. It changes based on the seniority of the associate/partner, the nature of legal services provided or the size of the client, etc. For example, whereas in litigation, the flexible work approach can be widely applied, in the mergers and acquisitions (‘M&A’) practice, it becomes difficult.
• The ‘work from home’ approach also has its limitations in supervising and promoting lawyers as it leaves little time for daily face to face communications, feedback and training.