Lawyers should cast an eye on social responsibility and sustainability, write Varsha Aithala and Siddharth Peter de Souza
There has been plenty of consolidation, as well as movement, in the legal market in India in the past couple of years following the split of the country’s largest law firm, Amarchand Mangaldas, the lateral movement of leading partners, and increasing frequency of high value transnational deals. With the globalization of business operations, the function of a law firm has matured into being an important economic agent, a large employer and also a driver of policy reforms.
With this multifaceted transformation, there are now increasing expectations among firms on their functions in relation to society at large. Justice Adda and the Cambridge Pro Bono Project worked together to develop a handbook to identify the roles of Indian law firms and define the parts they play in the delivery of legal services, promoting access to justice and building a culture of social responsibility.
Among the key questions driving the research were: 1) whether social responsibility is a symbolic enterprise or an aspirational concept; 2) if there is a need to integrate ideas of social impact in the firm’s operations; 3) should policies concerning social responsibility be formalized or should they continue to be informal and; 4) how to balance economic and ethical choices arising when working on particular cases in the market.
These questions have sparked debates about the nature of the legal profession. Does the profession have a public component to it? Do lawyers need, as Anthony Kronman argued, to be “statesmen”, and should justice not be seen as a “counter cultural value” to becoming a successful lawyer. Firms can contribute to access to justice by being more socially responsible, particularly in their spheres of influence, in terms of clients, employees and the general public, as well as the courts and the profession.
UNPACKING SOCIAL RESPONSIBILITY
The concept of social responsibility can be understood as strategies that combine business, human and social elements. The handbook addresses two distinct elements of social responsibility for law firms in focusing on their spheres of influence. The first deals with the internal aspects that determine the functions of law firms, such as the steps required to build an inclusive and sustainable working environment. The second is the more outward-looking aspects like the responsibilities of law firms to the community at large.
Among the key elements are aspects of an inclusive working environment, sustainability of business operations, professional ethics, community engagement and economy and market-related factors.
There are four critical elements to building a corporate social responsibility (CSR) component at a law firm. The first is that such a programme needs to be proactive so that the firm responds to the needs of its stakeholders. The second is that the firm sees CSR as a long-term goal with aspirational targets. The third is that it builds CSR in close association and collaboration with the community around. The fourth is that it responds to best practices around the world through comparative learning.
As part of the research, an anonymous survey was conducted last year covering Indian law firms and independent legal practitioners. This exercise was meant to understand the realities and challenges they face and innovations they have undertaken to operate a socially sensitized working environment.
To ensure a balanced assessment, views and opinions were sought of 57 law practices at varying stages of growth, profiles, scales of operations and sizes, located in Delhi, Mumbai, Bengaluru and Chennai. Of the 57 practices, 12 responded. Respondents were asked specific facts or practice-based, as well as general, opinion-extracting questions. At law firms, partners or human resources teams responded to the questions posed, while solo practitioners provided the answers themselves.
The survey generated some interesting findings, categorized under two broad markers identified previously, examining the law firm as an institution and its interaction with the wider community.
Institutional aspects of the firm were evaluated using indicators like diversity and inclusion, recruitment and career progression, compensation, equality in treatment, professional development, as well as training and quality of work life. Economic and ecological sustainability practices were examined through energy conservation, waste reduction and recycling efforts and ethical supply-chain management.
The survey found that law firms place a strong emphasis on preventing discrimination at work and ensuring a diverse and inclusive work environment. While some of the larger law firms have drawn up specific policies, covering anti-discrimination, prevention of sexual harassment and promotion of diversity, a majority of the smaller ones do not document their practices. There are no efforts to institutionalize these practices and there is no regulatory requirement to report initiatives.
Compliance is ensured through partners or management-level committees and human resources staff. There is a strong belief among male and female survey participants that female staff are not discriminated against in terms of pay, promotion, etc. They suggest that earnings (including bonuses) are entirely performance driven.
Most report good female-to-male gender ratios in their workforces. There are still differences in gender-equality practices with advocacy/litigation firms still perceived as being dominated by traditional male hierarchical structures of power.
Flexible working policies are deemed to be client-demand driven, and the degree of flexibility provided varies hugely across firms. For continuing professional development, larger firms have specific knowledge-management teams. Competencies are set out in their performance management systems and business plans, and annual learning and development programmes are then drawn up. For other firms, this remains a ‘’tick-the-box’’ exercise.
Most Indian law firms understand and, increasingly, value the nexus between sustainability and economic success, even if, for now, it seems to be limited to the managers or top-tier officers and not all staff. There is no evidence on whether sustainability policies are systematically engrained at all levels, including at the supply chain end, where firms need to be responsible and choose business relationships in a discerning manner.
In the community-outreach section, the pro bono engagement and ethical practices of Indian law firms were studied, to identify the state of play. While almost all the firms actively provide pro bono legal advice, these matters are handled on an ad hoc basis and there is no systemic or institutional support.
Pro bono hours are not usually considered towards an associate’s performance evaluation. There is no active engagement of the legal profession regulator in mandating and monitoring the duties of law firms to contribute to pro bono services. Against all this, there is a greater demand for pro bono legal advice, far exceeding supply.
Firms acknowledge the importance of sound ethics in their practices, but most still rely merely on implied knowledge and the weakly enforced professional standards of the Bar Council of India, without having explicit policies and actions taken to promote them within the firms.
Also, the survey found that, overall, smaller and midsize law firms have been more receptive to innovative and flexible working structures to promote increased lawyer engagement within the organization, as well as outside. Unlike bigger practices, these firms have attempted to create institutional structures insulated from family or individual ownership and control.
As a result of the gaps the handbook highlighted, several simple, cost-effective solutions have been set out for law firms and legal practitioners to improve their social responsibility quotients. First, this will involve the recognition of the need for clear, simple and transparent written policies to promote a good working environment, tailored to the size and nature of the firm. These need to include details of how the firm will ensure compliance, how complaints and disciplinary issues are to be dealt with, etc.
Firms can carry out minor functional changes to their activities, like running mentorship schemes and encouraging the building of strong networks within the practices to help nurture competence, credibility and confidence of lawyers at all levels of seniority and recognize such schemes as part of billable work. There need to be attempts to promote and preserve a culture that recognizes and rewards excellent professional conduct of staff, namely, preserving honesty, confidentiality, integrity and fairness in dealings.
Transparency should be improved with the provision of access to gender pay-gap information to all fee earners by publishing the differences between average earnings of fee earners with similar work experience. Attempts undertaken by some law firms surveyed at running “flexi work”, term time work and shared parental leave schemes for associates with young children, replacing billable versus non-billable time recording requirements with indicators like “firm time” and “client time” are encouraging.
Firms should formalize their pro bono practices and run innovative and impactful programmes in the public interest. They need to aim towards an economically and ecologically sustainable practice by re-evaluating, for instance, their waste-generation and energy-consumption patterns and using only suppliers with established track records of compliance with responsible business standards and criteria.
While these measures appear expensive and cumbersome at the start, they bring several long-term benefits to legal practices and their clients in India.
Social responsibility is a complex concept, permeating every part of the lifecycle of a legal practice. Indian firms already have their own guiding principles dealing with how they and their staff should conduct themselves with their clients, the courts and with third parties. These, however, remain at the periphery of firms’ governance and are not integrated with their formal structures. Many partners and leaders acknowledge the importance of the measures suggested and intend to apply them to their practices, but this has not been observed in their daily operations.
As firms become more deeply embedded in the global market, there are also increasing calls to become part of a “responsibility revolution” such that they create value for stakeholders who are impacted by their work as this is not only critical for building a better business but also essential to not alienate these supporters and become obsolete.
A copy of the Handbook on Designing Socially Responsible Law Firms in India can be downloaded here.
VARSHA AITHALA is a consultant with Justice Adda and a research fellow at Azim Premji University, Bengaluru, where she is offering post graduate level courses on private law.
SIDDHARTH PETER DE SOUZA is the founder of Justice Adda and a PhD researcher at the Humboldt University of Berlin. A copy of the Handbook on Designing Socially Responsible Law Firms in India can be downloaded on the Justice Adda website.