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18 November 2013
People talk about the globalisation of law firms as if it is inevitable. But the process of internationalising your law firm is highly complex - a fact that is reflected in the many ways the legal profession has responded to the phenomenon.
Some firms make a virtue of only practising home law and aim to serve the needs of multinational clients through best friend relationships with lawyers in foreign countries. Other firms have abandoned concepts of home and abroad and instead attempt to act as a global presence, with the people, products and processes to match. Others see globalisation as a more gradual process of harmonising and integrating lawyers from different offices across the globe. Wherever your law firm sits on this continuum, the challenges of globalisation for legal education, training and knowledge management are both exciting and stretching.
Responding to these challenges involves more than ensuring that lawyers acting for transnational clients have a good understanding of comparative law. Instead, a new kind of lawyer needs to be developed from the essentially English-centric system of legal education. For the English-based lawyer, there is no question that a deep understanding of the principles of English law is important. The same can be said for any jurisdiction-based lawyer. However, there is an increasing need for lawyers with the intellectual skills and knowledge to establish commonality, bridges and links between the principles of English law and those of other jurisdictions.
All of this is about far more than the law, for those who understand only the law understand nothing. It is one thing to appreciate the increasing importance of the regulatory framework emanating from Brussels, but quite another to appreciate that the concept of regulatory discretion, which informs the way in which lawyers in this jurisdiction go about their business, is anathema to a German lawyer, who believes that the law is the law is the law.
Allied to this is the need for lawyers to have better management development skills. These include a greater awareness of effective processes for the delivery of legal services. But there is an ever present danger that process-driven lawyering (which usually has a US or UK emphasis) overwhelms thoughtful lawyering, particularly when transactions and cases have an international and comparative dimension. Process lawyers assume process; thinking lawyers select process. Particularly important in the European context is the fact that thinking lawyers do not assume the 'system' is closed; they are prepared to challenge existing processes by trying to influence policy.
So these, then, are some of the attributes of a successful lawyer working at the boundaries between multiple systems in a forward-looking international law firm. But how can
lawyers develop the intellectual skills and knowledge to help them practise in such a different and challenging environment? One thing is certain: they will not learn them at law schools in the UK, Germany, France or the US. It is all very much related to practice, where lawyers learn by reflecting on their practice and how to improve it. But the important point is that we are not talking about training as such, but a much deeper process of education than has typically been on offer through in-house programmes or continuing professional development.
Nottingham Law School and Freshfields Bruckhaus Deringer have worked together on a number of occasions to meet these educational challenges. Shortly after the merger with Bruckhaus Westrick Heller Löber in August 2000, Freshfields wanted to introduce training that would cross international boundaries and help with the integration process. As a result, Freshfields introduced a three-day international foundation course for their newly-qualified lawyers last year. Young solicitors from Continental Europe and London learned about litigation in each other's jurisdictions and went on to discuss and explore the differences; they worked together on a multi-jurisdictional case study, and in so doing learned about the process and approach to resolving disputes in each other's jurisdictions.
A more advanced module has been created for senior litigators, where lawyers from London and Europe will work with US colleagues to prepare a fictional antisuit injunction before a US court.
Freshfields' environment, planning and regulatory group has also developed a module-based programme that leads to a Postgraduate Diploma in Environmental Law and Regulation. Forty lawyers at various levels of post-qualification experience are currently completing the course, which has been delivered across a range of European locations. During the most recent module, participants travelled to Brussels, where they took part in a simulated European Parliament Environment Committee meeting and considered how the broader policy context would impact on their clients. Delegates who complete the diploma can join an executive masters stream, where they can study comparative public and private law and regulatory theory.
Teamwork. As trite as it sounds, teamwork and social interaction are central to the design of any cross-jurisdictional programme. Learn through simulations and case studies involving hypothetical law firms and lawyers from different offices.
Use jurisdiction-specific teams to highlight differences. This allows you to compare and contrast outputs from the simulations. The results can be fascinating and do much more than merely increase cultural awareness. For example, German lawyers have a long history of dealing with the regulator in an economy that has had heavily regulated private enterprise since World War II. Using a well-designed simulation, these skills can be explained and transferred to others.
Do not make cultural and business assumptions. It is all too easy to assume that lawyers from different jurisdictions will behave in certain ways. There are also assumptions about how law firm offices operate across the network. In a simulation of a beauty parade, UK senior associates were happy to discuss charge-out rates, while lawyers from other offices felt this was very much a matter for partners.
Do not assume that London-based training strategies will export easily. The problems of being too London-centric are well documented. But it is worth emphasising that it is not only a question of what is taught, but how it is taught. For example, we now have a cohort of English-qualified lawyers who are used to learning through simulation and to receiving feedback on performance. Yet their counterparts in other offices will have different educational traditions, and learning through simulation can be a culture shock. Awareness is important.
Use facilitators from across the network to deliver and design your training. Although this requires significant commitment, the benefits are enormous.
We are still light years away from developing a framework of global law, whether or not this would ever be desirable, and the US and Europe will be battling in front of the World Trade Organization on a number of fronts in coming years. But those who think that the globalisation of legal services can be achieved by simply exporting US or UK models of legal practice to the rest of the world are deluded.
Effective internationalisation of legal services is a subtle process and requires an understanding of the legitimate differences between legal systems and practice. Achieving this understanding is the critical first step to providing a coherent yet discerning service for transnational clients, and legal education for professionals has a key role to play in this endeavour.
Professor Peter Jones is dean and chief executive of Nottingham Law School and Jill Janney is head of the dispute resolution practice and business development at Freshfields Bruckhaus Deringer