The Singapore Law Gazette

Lawyers as Leaders, and Our Post-crisis Role – Thoughts from COVID-19

How should the role of the lawyer morph during and after times of crisis? Aside from the role of being a technical expert of the law, which is the corner stone of our “business-as-usual” work, fulfilling our function in society (be it in effectively supporting clients or in upholding access to justice and the rule of law) requires lawyers to become wise counsellors and effective leaders, all while keeping legal businesses viable. This is not a task for any one lawyer or law firm, however socially minded, but requires the collective commitment and engagement of the entire legal profession.

Introduction

Singapore is easing out of the COVID-19 public health crisis, but the devastating economic and social impact is expected to remain for the foreseeable future, as businesses try to recover amid uncertainty and an ever-evolving legal landscape. This presents the legal community with an opportunity to reflect on our duties as lawyers, and to ask ourselves: “what is the role of the legal profession in the new normal?”. This is a question that requires contextualisation to each individual lawyer’s practice and circumstance, and there is no single correct answer. This article presents one perspective for the legal profession to consider in terms of its role in society as we move into the next/new normal.

The Role of the Lawyer in the 21^st Century

In a paper titled “Lawyers as Professionals and as Citizens: Key Roles and Responsibilities in the 21st Century” by the Harvard Law School Center of the Legal Profession,¹Ben W. Heineman, Jr., William F. Lee, and David B. Wilkins, paper, “Lawyers as Professionals and as Citizens: Key Roles and Responsibilities in the 21st Century” (2014) Harvard Law School Center on the Legal Profession (accessed on 8 June 2020) the authors discuss three concrete roles of the modern lawyer: technical expert, wise counsellor and effective leader. The role of the technical expert – giving clients and others access to the complex machinery of the law²Heineman, Lee, and Wilkins, “Lawyers as Professionals and as Citizens” at n2, pg 9. – is the brick and mortar of legal practice and needs no elucidation. However, in taking on the additional roles of wise counsellors and effective leaders, to both clients and society generally, lawyers can play a meaningful and effective hand in shaping the new normal as it unfolds. What do these roles look like, and how do they correspond to the work that lawyers do?

As wise counsellor, the lawyer goes beyond answering the question “is it legal?” as a technical expert, but also acts as a “lawyer-statesperson”, guarding to their client’s integrity by further answering the question “is it right?”.³Heineman, Lee, and Wilkins, “Lawyers as Professionals and as Citizens” at n2, pg 6. In our current climate of economic recovery, leveraging and maintaining a shared sense of justice and integrity not only serves the public good, but is also useful in resolving disputes and issues in the face of uncertainty. Where contracts do not adequately articulate the rights and obligations of parties, and regulations via temporary relief or emergency measures are vague, parties are left to work out solutions for themselves, and their ability to forge effective and cooperative approaches may be dampened by personal anxiety about the future. Clients will understandably be focusing on immediate financial concerns such as maintaining cash flow, keeping jobs and safeguarding businesses, with limited bandwidth to address broader, but intangible and less immediate, considerations such as reasonableness, fairness, the preservation of relationships and goodwill. These are considerations that, if accounted for, can benefit all in the longer term.

In such situations, lawyers are needed to be wise counsellors both in respect of advice rendered (i.e. helping to construct commercially savvy solutions leveraging on the depth and breadth of their experience), and in conduct (i.e. actively seeking mutually supportive solutions while avoiding unnecessarily acrimonious engagement). The focus is not just “what should be the “right” legal course of action under current law and circumstances, but rather what is “right” in the sense of what a law or policy or private norm ought to be in the future”,⁴Heineman, Lee, and Wilkins, “Lawyers as Professionals and as Citizens” at n2, pg 10. and also, what is “best” for all stakeholders involved, not least the client. This is especially necessary in the aftermath of a crisis, where entire business eco-systems are attempting to rebuild. In maintaining this focus on behalf of their clients, lawyers actively participate in laying the foundation and paving the way for the reconstruction of the economic sphere that is so badly needed. For example, a litigator may consider encouraging mediation, to help his clients settle the myriad issues arising from this COVID-19 situation in a more amicable manner and without a lengthy and difficult court process.⁵Kohe Hasan and Teh Joo Lin, “Firms should consider mediation to settle rows amid Covid-19 disruption”, Straits Times, (Singapore) (23 May 2020) (accessed on 8 June 2020). If the lawyer were not familiar with the mediation process before, they would have, in addition to supporting their clients’ broader interests, gained new skills for themselves.

Beyond being wise counsellors, lawyers need to be effective leaders: to be capable and astute in managing and executing transactions and instructions, to simply make things happen and get things done.⁶Heineman, Lee, and Wilkins, “Lawyers as Professionals and as Citizens” at n2, pg 15. As the saying goes “execution is everything”, and nothing is more important in crisis management and rebuilding in the aftermath. In this role, lawyers are “decision makers on important matters which involve complex considerations beyond the law,”⁷Heineman, Lee, and Wilkins, “Lawyers as Professionals and as Citizens” at n2, pg 9. and will “often have ultimate positions of responsibility and accountability, who do not just advise but who decide”.⁸Heineman, Lee, and Wilkins, “Lawyers as Professionals and as Citizens” at n2, pg 10. This requires taking the advice rendered by the wise counsellor and turning it into a reality. The lawyer as effective leader takes additional and proactive steps to ensure that clients can implement the advice rendered. This requires being solution-oriented, working with the client’s other service providers to ensure a coherent solution is rendered in a ready-to-use, plug-and-play manner, and proactively seeking information that, while not immediately relevant to the legal question at hand, would impact the implementation and effectiveness of the legal advice rendered. This could mean pro-actively identifying and resolving roadblocks in their client’s business processes in the context of the new normal; or working shoulder-to-shoulder with in-house counsel as they guide c-suite management through thorny decision-making processes required in pivoting their businesses in a bid to survive. In doing so, the lawyer leads their client’s businesses toward recovery, which in turn speeds the recovery of the larger business ecosystem.

The roles of wise counsellor and effective leader tend to be overshadowed by the perception of the lawyer as a technical expert – a mere service provider to the real movers and shakers in society. But wisdom and effectiveness are not only essential to lawyer’s daily work, they are also core to the legal profession’s broader social function of maintaining and refining the legal system. As eloquently described by former Harvard Law School Dean, Robert Clark:

“What is the essence of being a lawyer? What is it that lawyers do? My answer is that they create, find, interpret, adapt, apply, and enforce rules and principles that structure human relationships and interactions. More briefly, lawyers “handle” the rules and norms that define rights and duties among people and organizations. That is, they are specialists in normative ordering.”⁹Robert C. Clark, paper, “Why So Many Lawyers? Are They Good or Bad?” (1992) 61(2) Fordham Law Review 275 (accessed on 8 June 2020) at pg 281.

The act of “normative ordering” – realised through the proper outcomes of private cases, and the adherence to proper procedures while doing so – contributes to jurisprudence, maintains the community’s sense of justice and confidence in our institutions, as well as the transparency and clarity in our social and economic systems. Wisdom and effectiveness are necessary at all times to ensure that the structuring of human relationships and interactions in each of the economic, social and political spheres are appropriate and in the best interests of the community, and even more so in the context of the volatile, uncertain, complex and ambiguous world of the near future.

The importance of the work in structuring and enforcement of rights, obligations and responsibilities, while common to all legal work, is most obvious when the legal community directly engages in work to ensure access to justice and to uphold the rule of law. The sum of the lawyer’s work in the public domain is to create a “form of public responsibility and accountability that would help preserve the blessings of democracy without allowing its untrammelled vices”.¹⁰Alexis de Tocqueville, quoted by Kathleen M. Sullivan, paper, “The Good That Lawyers Do” (2000) 4(1/3) Washington University Journal of Law & Policy 7 (accessed on 8 June 2020) at p13. This can be done through ensuring that vulnerable groups have continued access to legal services come what may, or in challenging and holding to account laws and policies on behalf of those they unfairly impact. Addressing this challenge during and after a crisis again requires wisdom in being able to effectively tackle the endless cycle of identifying the vulnerable (along with the more vulnerable and the most vulnerable), and then re-identifying the same as the situation changes. Thereafter, a proactive and effective strategy is needed to reach out to and protect or support these identified groups, as the context continually evolves.¹¹LexisNexis Rule of Law Panel, panel discussion on “Effecting Business Continuity Plans for Justice and the Rule of Law” featuring Atty. Domingo Egon Q. Cayosa, President of the Integrated Bar of the Philippines; Gregory Vijayendran, President of the Law Society of Singapore; and Steven Thiru, Past President of the Malaysian Bar Council, online (28 May 2020). It cannot be taken for granted that the systems developed in the past will continue to meet the needs of the vulnerable in the future, even more so when the continuum of the past and future have been disrupted by a global pandemic.

In the complexity and uncertainty of crisis – and its aftermath – wise counsel and effective leadership are particularly required. Lawyers are required to apply their minds to the bigger picture, to constantly assess the needs of the community beyond their strict legal needs, and to ensure that the public good and the rights of the vulnerable are not compromised as a matter of convenience.¹²For example, in the early days of the crisis the Law Society Pro Bono Services considered the provision of gratis will services for our frontline workers and to do so in a sensitive manner. They also immediately shifted to providing legal counselling for the indigent virtually, allowing for legal aid services to continue despite the Circuit Breaker. After responding to and recovering from a crisis, Deloitte’s resilient leadership framework identities a third phase of thriving: where requires leaders to boldly reinvent the future.¹³Deloitte, “Resources for Resilient Leaderships” < https://www2.deloitte.com/global/en/pages/about-deloitte/articles/the-heart-of-resilient-leadership.html> (accessed on 17 July 2020). When the world is in melt-down, wise and effective lawyers are needed to be creative: to design, articulate and to lead in the creation, from the debris, of a safer and fairer world for all.

The Practicalities

However, lawyers do not spontaneously exist, ex nihilo, to bless the world by being wise counsellors and effective leaders. These benefits are delivered to the end users through law practices. The law practice is thus the vehicle through which lawyers perform their roles of technical expert, wise counsellor and effective leader to their clients and through which the bulk of the demand for legal services in society is met. From this perspective, legal services are ultimately social goods whose production processes are funded through private enterprise. But like any other business, law practices are driven by market forces and are themselves at risk during economically difficult times. Hence the ability of ethical law businesses to weather, and even thrive, through such crises, is crucial if society hopes to recover in a fair and meaningful way.¹⁴Leslie C. Levin and Lynn Mather, “Beyond the Guild: Lawyer Organizations and Law Making” (2019) 18 Wash. U. Global Stud. L. Rev. 589, pg 591.

Law firms have not remained unscathed from the COVID-19 crisis. We have seen practice for some came to a grinding halt, firms struggling with cash-flow issues from the inability to bill clients, the drying up of deals and the pipeline of future work, and the struggles of the less tech-savvy practices to adapt to working from home. Surviving the crisis and its aftermath requires flexibility and sensitivity to the needs of clients along with the capacity and willingness to innovate. Innovation does not only refer to technological innovation and adoption – now a mere baseline requirement to work from home – but extends into the ways legal services are delivered.¹⁵LexisNexis Rule of Law Panel, panel discussion on “Effecting Business Continuity Plans for Justice and the Rule of Law at n12. (accessed on 8 June 2020). This discussion predates COVID-19, and this article will not repeat the plenty that has been already been said on what individual law firms can do to remain viable, be it in this pandemic or in the face of the challenges posed by globalisation and technology.

In addition to survival strategies available to individual practices, the legal community has the advantage of being a self-governing profession in Singapore. Local bar associations can and have been a resource to law businesses during difficult times since their role (from their inception around 900 years ago) is to promote the interest of their members. Once the Circuit Breaker measures were announced, the leadership of the Law Society of Singapore took proactive measures steps to “prevent the legal profession from becoming secondary causalities in this global crisis”, including establishing a relief package and providing technology support for its members.¹⁶K.C. Vijayan, “Law Society rolls out $1m Covid-19 relief package for members”, Straits Times, (Singapore) (22 May 2020) (accessed on 10 July 2020). Beyond promoting their members’ interests, bar associations magnify and scale the effectiveness and impact of lawyers on the public good, acting as a focal point for organising the profession’s efforts in discharging their public duty in maintaining access to justice and upholding the rule of law. There is, after all, only so much an individual lawyer or a law firm can do on their own as it is not possible for a single entity to embody all the competencies required for the legal profession to adequately discharge its collective duty to the community.¹⁷Heineman, Lee, and Wilkins, “Lawyers as Professionals and as Citizens” at n2, pg 14. The two roles of the bar association (to promote the wellbeing of its members as well as broader social justice) are inextricably interlinked as alluded to by the Law Society motto: “An advocate for the profession. An advocate for the community”. During the pandemic, addressing the dual concerns converged with the continued but safe delivery of urgent and essential legal services for such time as safe-distancing is necessary.

Again, nothing can be taken for granted, and the legal community itself requires effective leadership, management and resourcing to do its work. As with any other organisation, bar associations depend on and are limited by available resources – in this case, their members.¹⁸Quintin Johnstone, “Bar Associations: Politics and Performances” (1996) Yale Law & Policy Review Vol 15:193, pg 196. Hence, it is necessary for individual lawyers and law practices to be supportive and engaged members of their bar association, and to work collaboratively with the legal community with a view to discharge their duties collectively as a profession.

Conclusion

Someone once said that we should never waste a good crisis. Crises, such as the COVID-19 pandemic, are opportunities for the legal profession to recalibrate and re-emphasize our role as wise counsellors and effective leaders to the public. In speaking of the courts, Chief Justice Menon said: “Covid-19 must become the occasion to re-forge and refine our processes for administering justice”.¹⁹K.C. Vijayan, “CJ on ensuring justice in the time of COVID-19”, Straits Times, (Singapore) (4 June 2020) (accessed on 8 June 2020). To do so the legal community needs to be organised and well structured, with its own leadership mechanisms operating effectively. As with any piece of infrastructure, such mechanisms and institutions need to be built, maintained, and guarded, and their on-going and effective existence cannot be taken for granted.

From the perspective of individuals lawyers, efforts should be taken to develop and maintain the skills required of the expert technician, the wise counsellor and the effective leader in each of our relevant spheres of influence, howsoever the demand for these roles may arise. The wise counsellor and the effective leader are roles “which stem from practical wisdom, not just technical mastery; requiring broad judgment based on knowledge of history, culture, human nature, and institutions, not just a sharp tactical sense; which flows from the ability to understand long-term implications, not just achieve short-term advantage; and which is founded on a deep concern for the public interest, not just the private good”.²⁰Heineman, Lee, and Wilkins, “Lawyers as Professionals and as Citizens” at n2, pg 23.

To effectively fulfil these roles, the lawyer would need to consider a whole array of issues beyond the law and the facts at hand, these factors could, depending on the role of the lawyer, include “institutional, political, economic, policy, reputational, ethical, geopolitical, or media factors”.²¹Heineman, Lee, and Wilkins, “Lawyers as Professionals and as Citizens” at n2, pg 10. We must thus be equipped with the necessary skills and perspectives to effectively discharge our duties. Hence, in addition to our technical expertise, lawyers should focus on honing “‘complementary’ competencies involving broad vision, knowledge, and organizational skills [including general managerial skills such as vision, planning, budgeting, management, personnel] that, while not unique to lawyers, are essential to the counselling and leadership roles.”²²Heineman, Lee, and Wilkins, “Lawyers as Professionals and as Citizens” at n2, pg 5 and 14. It also requires engagement and co-operation with, and learning from, professionals and experts in different and relevant fields that “may also bring different, important perspectives to bear in counselling people or institutions on what ought to be the “right” norm, rule, or policy”.²³Heineman, Lee, and Wilkins, “Lawyers as Professionals and as Citizens” at n3, pg 10.

To have a platform to discharge these duties to the public, the lawyer must remain economically viable and stay operational. This may require law practices to innovate, both in terms of technology adoption and in terms of operating and business models, and to work with the bar association to craft solutions to maintain business viability, so as to be able to effectively serve as the foot soldiers of justice.²⁴Raj Anand of WeirFoulds LLP, “Rule of Law and the Ethical Lawyer” (2017) Lexology.com, (accessed on 8 June 2020). Finally, commitment, engagement and support to the bar associations is crucial to maintain the systems of leadership that will serve each of the lawyer, their practice, the profession and the public at large. What this pandemic has revealed, on so many levels, is the importance of leadership and management to guide the community (both the legal community and society at large) safely through crises, together.

This is a perspective to consider adopting in considering the role of the lawyer in the context of the new normal, in a world beset with economic and political uncertainty. The bulk of attention will be focused on rebuilding our economy, and the legal profession can contribute greatly to this by being technical experts, wise counsellors and effective leaders to both our immediate clients and to society at large. Above all is to take seriously our public duty to judiciously guard our institutions and the rule of law from threats arising from disruption and uncertainty. This serves not just society’s boarder interest but also our own, because at a fundamental level, the biggest threat to the lawyer is not a virus, a bad economy, foreign competition, or new technology. This biggest threat is where the rule of law and our justice institutions erode to the point where the law is simply no longer effective, and those who ought to be our clients choose to resolve their issues through other means (such as bribery or threats of violence). The rule of law and its attendant institutions, like trust, take much time to build, let us ensure that they never break in the first place, especially so during a crisis.