The power of transparency in law for a new cycle
The legal sector can be at the heart of a move towards radical transparency
A new cycle
2020 has been an intense year. Much has shifted. Much has been endured. Despite what we may desire for it and what may unfold within it, 2021 offers an opportunity.
The economic and societal impact of Covid-19 will have long lasting effects and recovery will take time to track through. The world is reliant on debt like never before. Inequalities grow yet larger in our society. Fear and control increasingly underpin social order. People are drained.
But the world turns on and we turn with it, whether or not we register that movement. The practicalities and opportunities do not stop. Purpose remains.
A new movement
There is a shake-up happening – a wake-up happening.
I learned recently there has been a surge in citizens looking at source legislation around the Covid rules. Trust is low. People are looking for facts from source, not from guidance, not from the media, but from the black letter of the law.
We can see the shake-up too in the big tech, fake news, data privacy backlash, the response to Brexit, and the rise of the environmental, social & governance movement (ESG).
People increasingly expect responsibility, action, simplicity, truth – consistently so.
As part of the underpinning of society and the economy, what is the legal sector’s response to this movement?
For those who run and advise legal businesses, administer the legal system, serve clients, deliver dispute resolution and other legal services – how does the sector transition into this new cycle without manifesting the unserving momentum of the past?
What part can the sector and those within it play on the world stage, the steadying of the ship for the unknowns, and the rebuilding of trust and integrity that lays ahead?
Transparency
Transparency engenders trust. There is a reason shops and cafes opt for open glass fronting. They are good for business because people like to see through. People increasingly want transparency – in the husbandry of their food, the integrity of their brands, the delivery of their services, the running of their governments, between each other.
Going all in on transparency will be key to meeting the challenges of our time and rebuilding trust in society over the long term.
The legal sector can be at the heart of a move towards radical transparency in a range of ways.
System
Legal practitioners are well placed to understand the struggles of their clients, the parts of the law or the system that don’t work well and where looseness, inequality or oppression prevail. These issues need to be surfaced, perhaps on a register, to be triaged and addressed, in a systemised and ongoing way, not left to occasional consultation or campaign.
The legal sector can thus be drawn on and help tend the collective garden, as it were, increasing the level of actual and perceived oversight and reducing the need for change to be advocated ad hoc by others (as we have seen in various ways through lock down, with physical witnessing constraints under the Wills Act 1937 being one example).
For radical transparency, the register and triage process would be public.
Add to this that we should be able to engage with the legal system with immediacy, in a way that makes intuitive sense, and which provides us with personalised information every step of the way, to support our understanding and decision-making at the important moments of our lives. The process of engaging with the system must itself be transparent.
Just as trust in politics degrades without transparency, so too will expectations of transparency increase towards the legal system itself – the process and oversight of law making, decision-making of judges, stewardship of data, the prioritisation and ROI of public investment. Our legal system for the future will thus need to anticipate and be designed around the principle of transparency.
This includes in respect of how technology is deployed, to maximise transparency and mitigate (through due care and controls) human bias and mistakes being magnified through technological means.
Customer
As articulated by the Solicitors Regulatory Authority during the Weinstein scandal, lawyers are not ‘hired guns’ whose only duty is to their client. They also owe duties to the court, third parties and the public interest. They are legally required to act with honesty, integrity, equality and in a way that upholds public trust and the rule of law.
The strengthening of the ESG movement in the corporate world offers and necessitates a further depth of consideration for the legal community, including in respect of ethics and what legal services and sytems enable.
Non-disclosure agreements in sexual harassment pay outs, weak governance, and questionable compliance being just some examples of where the legal sector does, can and will increasingly be expected to lean in hard – to demonstrate and facilitate transparency. It won’t take many breakdowns for society to lose trust in legal professionals, with wide-reaching ramifications.
And regardless of the context, legal practitioners can by their own leadership, practice and communication, help raise the profile and the bar on ESG across the public and private sector. There is an opportunity here for the sector to be in more than a transactional cycle of responding to what is asked, and instead see what is needed and support their clients towards transparency and responsibility in a big (albeit behind the scenes) way.
Delivery
Transparency presents an opportunity for the delivery of legal and court services. Technology can be harnessed to enable transparency.
There are a range of opportunities in law for an open-source ethos, similar to what we see in the software community, facilitated by platforms such as GitHub. People working across different organisations, countries and specialisms come up against the same challenges, day in day out, and do not need to solve them separately in silos. Platform working and common protocols (eventually globally) offer an as yet untapped opportunity, with business and society as the beneficiaries.
Data can fast become as fundamental a tool for the legal sector as email is today, and core to transparency.
Digitising working practices enables data to be captured, which opens up greater awareness and precision around operational efficiency, resourcing, inclusion, and risk management. What we capture and measure we can share and monitor over time.
Much has been written about the power of big data analytics to deliver value for organisations and their customers, national economies and their citizens, including operating improvements, better decision-making and trillions in collective value. Fuelled by and generating large volumes of information, this potential exists equally in the legal sector and for those it serves (subject to access, confidentiality and compliance issues which, though non-trivial, can be surmounted).
On a more operational level, add to this pricing work together and building work-product collaboratively, real-time, which creates efficiencies, builds connection and understanding, enables timely, well-matched work product and positively influences culture.
Actively building and involving an inclusive team is another core element of transparency in delivery, for training, quality, equality, and because given the right environment, genius is just as likely to come from the least senior and least legal member of a team as from its leader: transparency enables that.
Culture
The legal sector is known for being a tough and competitive working environment, with long working hours, high expectations of professional conduct and a commitment to get the job done at all costs, with no mistakes.
Exhaustion, alcohol/substance abuse, anxiety and other mental health conditions are common[1]. Times of crisis increase the load and remote working reduces all important human contact and opportunities to connect.
Personal transparency within legal teams and between clients and their advisors, about how people are personally and how they are feeling, help address these issues and over time influence culture.
Someone has to go first, to start opening up the conversation, and this can come from anyone, anywhere. That way others can see transparency in action and trust that it is safe to follow. Seemingly small moments can have a seismic impact.
Leaders have a big part to play in this, by tuning in and investing boots and all in the wellbeing of their teams, and the in-house community also, vis a vis their advisors - adjusting expectations on working hours and bringing personal transparency into the conversation.
In conclusion
2020 has shown us how quickly things can change. Events and decisions happening now, day to day, will affect us and future generations in ways we do not yet know. Changes are coming, good and bad and they are coming fast, and with each one we are offered an opportunity to evolve how we think and act and respond. The legal sector can play an increasing role in how we prepare for and handle change and help chart a steady course.
Trust will be a key ingredient in society in the years ahead and fundamental to move us forward. Transparency engenders trust and it is transparency that must be at the heart of our systems, processes and behaviours.
Law and those facilitating or translating it act as a bridge between society and government. This is a prime and privileged position from which to build in transparency, to offer leadership and integrity through these times.
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[1] https://www.lawgazette.co.uk/news/one-in-15-junior-lawyers-has-had-suicidal-thoughts-research-shows/5069907.article