Thinking

The law may be blind, but someone is moving the furniture around

I’ve just finished absorbing – I’d say “reading” but it was an audiobook, and “listening to” doesn’t quite hit it – the luminous ‘Sapiens: A Brief History of Humankind’, by historian Yuval Noah Harari. At the core of Harari’s lively romp through the entirety of human history is the notion that most everything our lives are based upon – money, religion, politics, the economy, society in general – are imaginary constructs.

Banks and corporations, for instance, are nothing more than imaginary constructs. Harari uses the example of Peugeot, part of French car manufacturer Groupe PSA. Peugeot was founded in 1810, and originally made bicycles and coffee mills. Emile Peugeot applied for the famous lion trademark in 1858 and in 1889 Peugeot brought out its first car.

Harari makes the point that the Peugeot family gave up control of the company in 2014. If all the company’s factories and stock were mysteriously destroyed, all the workers sacked and if the company’s loans were withdrawn and it was made bankrupt, Peugeot would still exist. It could be recreated and, because of its status in the imagination of billions of people around the world, it would survive.

This, of course, set me thinking about law firms. If there was a spectrum of imaginary constructs and, say, Peugeot was at one end, law firms would be at the other, at an almost ethereal level of existence, barely here at all. They produce nothing concrete in terms of goods, have no awards or market-making research studies to their name (unlike the accountants) and none of the work they do has any visible legacy (unlike, say, advertising agencies or architects).

Whereas Peugeot kept Citroën as a separate marque after it took over the company in 1974, law firms most often eliminate the names – and any brand-value inherent in them – of firms they take over (CMS being the most recent major example), and even when one fragment lives on, it lasts only until the next name change. It is doubtful that Hogan Lovells would keep both legacy names long after another merger, for instance.

And yet law firms have every right to be thought of as among the most enduring of imaginary constructs, certainly in the business world. Freshfields is one of the oldest law firms in existence, founded in 1743, making it 33 years older than the United States of America.

It seems that this is not regarded as especially important. Freshfields Bruckhaus Deringer does not market itself as “the oldest international law firm in the world” because there is no mileage in it. It may point to its track record in the last few years, but it won’t be talking about mergers it did in 1926 or even 1986 because they’re irrelevant to what it does today.

But are law firms ignoring their importance in wider human society?

Imaginary constructs they may be, but law firms – collectively – are humanity’s keepers of secrets. Buried in documentation held on the servers of law firms, and sometimes in dusty filing cabinets in hidden basements, is pretty much every secret known to modern human civilisation. Every meeting where a lawyer was in attendance, every email instruction from a client, every piece of evidence in every case ever is held somewhere, away from all but the most brutal state interference. The closest we could ever get to the truth of anything – in a world where the cancer of Fake News is eating at the established construct of the media – is buried there, under client privilege, confidentiality, protected data.

When the world is functioning correctly, nobody even thinks about this stuff. Mergers happen, cases end or are settled, finance gets done and the bad people sometimes get caught, but even when they don’t, it’s not enough to upset the whole apple cart.

But since the banking crisis of 2008, the modern world is not functioning correctly. Two of the major democracies – and coincidentally the two which thoroughly dominate the world’s legal profession – are in crisis. In both the UK and US, a large part of the population has lost faith in familiar institutions, and the erosion continues on a daily basis. Politicians, the media, big business and bankers are easy targets, but now supposedly impartial government agencies, research organisations and even universities are being undermined – a recent poll found that 50% of Republican voters in the US thought that universities were a bad thing (!).

Harari’s world of imaginary constructs – from bank loans to global capitalism – is underpinned by one key element: trust. Everything in modern human society, from a bank loan to the global capitalist system, is based on trust. If that goes, corruption, stagnation, violence and war are not far behind, as we have seen everywhere from France at the time of the Mississippi Bubble in 1719, to modern-day Zimbabwe.

If, as some commentators believe, chaos looms in the West, the role of lawyers, and law firms, may become even more important. As the keepers of secrets, the holders of knowledge that dates to the very inception of the modern industrial world, law firms may hold the keys to our very survival.

Now, I’m not suggesting law firms break client confidentiality or release documents under client-attorney privilege (perish the thought…) but they can make choices about how they act, and modify outcomes in the process.

It is already widely-known, for instance, that most of New York’s finest litigators were approached to act for Donald Trump but refused, primarily because, notwithstanding their personal political beliefs, their firms would expel them if they did. Following that to its logical conclusion, if the President cannot get the best lawyers, then he is more vulnerable to good lawyers on the other side.

Since the Industrial Revolution, law firms have never needed to ‘pick a side’, because the ‘side’ was always the same side. The rule of law backing up the principles of global capitalism, the trust-compact we, and generations before us, in the West have grown up with, principles that, Harari says, we treat as if they are laws of nature. Except, as he ruthlessly points out, they are not: they are simply imaginary constructs.

But there may soon come a time when law firms are the last bulwark against the ruination of some of our most beloved constructs, from liberal democracy to human rights. Law firms may be called upon to pick a side, in a scenario where not all sides are the same. The law, as it is often said, may be blind, but someone is moving the furniture.


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