Updated: May 28, 2019
Law firms are better placed to represent their clients with a partial mindset, rather than
to conduct impartial, third-party investigations and dispute resolution processes.
In recent times law firms such as Werksmans, Hogan Lovells and Bowmans to name but three have suffered public scrutiny in respect of the investigation reports conducted by their attorneys. Irrespective of the truth of the allegations made against the law firms, it has led to reputation damaging headlines for these law firms. I have taken some random headlines and listed them for illustrative purposes.
Hogan Lovells Went Out Of Their Way Not To Investigate SARS’, Jonas Makwakwa, Pauli Van Wyk, 15 May 2018, Daily Maverick;
Hogan Lovells Throws Tom Moyane Under The Bus; Natasha Marrian, 06 December 2018, Business Day;
Corruption Watch Wants Nugent To Tackle Hogan Lovells, Natasha Marrian 24 October 2018, Business Day;
Robert Mcbride Turns The Tables On Werksmans Law Firm, Jessica Bezuidenhout, 15 April 2019, Daily Maverick;
Werksmans Report Used To Charge Mcbride Was Rushed, Inquiry Hears, Zintle Mahlati, 12 APRIL 2019 , IOL;
Werksmans Report ‘Got It Wrong And Jumped To Conclusions’, Robert Mcbride Tells Inquiry, Amil Umraw, 12 APRIL 2019 , Business Day
De Lille Claims Bowmans Refuses To Amend 'Errors' In Report, Derrick Spies, 06 Jan 2018, Mail And Guardian
Each of these media reports places emphasis on the law firm and not the individual lawyer that was tasked with the investigation. The law firm as a whole is directly linked to the work produced in third party matters. This is an important differentiator between law firms dabbling in independent third party work and businesses specialising in managing and conducting third party independent processes. I am no marketing expert, and am aware of the common phrase that “even bad publicity is good publicity”, and can only believe that there may be some truth in this. However what little I know about legal businesses is that they stand or fall on their credibility and trustworthiness.
Law firms and their lawyers must work according to a standard of ethics governed by the law societies. It is highly possible that none of the matters highlighted above pose a technical or legal risk for the law firms. It is also highly possible that the lawyers who have conducted the work have done so with a duty of care and professionalism. All this however does not matter when reading the headlines.
Lawyers have a duty to act in the lawful and reasonable interests of their clients. This duty can be fulfilled when the lawyer and the law firm functions as it is designed; as a subjective, partial and involved representative acting on behalf of a client. It simply does not work when the lawyer and the law firm must act as an independent third party for a multitude of opposing parties. It is even far more difficult when one of the disputing parties is a client of the law firm. Lawyers and law firms attempting to handle third party work in this way place themselves and their firms at grave reputation and ethical risks. At worst it creates an inherent conflict of interest which may oblige the lawyer to pass on the work.
At a philosophical level, the essence of any independent third party work, is to do all that is possible to ensure that justice is both done and seen to be done. If justice is not seen to be done, it simply does not resolve the conflict irrespective of how fair the outcome may be. The process remains doubtful and as such the outcome is undermined. As long as the conflict remains unresolved; it has the effect of escalating the costs, the time, the opportunities and increases the risk for clients. It is simply not acting in the best interest of the client.
Although I am a practicing attorney, I have had the fortune of being appointed as an independent third party to resolve conflict in labour, business, political, community and family matters in thousands of independent investigations, mediations, arbitrations and enquiry proceedings over a period of 22 years. I have been successful in assisting parties, have gained a good reputation, I have proved that I can be trusted as an independent third party and have never had my independence, neutrality or objectivity questioned. I can only imagine that it is because I never take my independence, objectivity and neutrality lightly.
I have also been careful to run these matters through the independent dispute resolution business Mediate Works (www.mediateworks.com) and other such entities. Mediate Works specialises in managing independent dispute resolution processes for multiple parties that are in conflict. The systems and processes of Mediate Works are carefully constructed to ensure that independence is maintained from the receipt of a process request, to the engagement with all parties in setting up the process, to providing information in a balanced way and at the level of all parties, in assisting the parties select processes that can help them, in obtaining agreement on the selection of the third party, to ensuring that there is an overall balance in treatment in all aspects of the administration and conduct of the process.
Mediate Works manages third party processes from start to finish.
Mediate Works provides a broad and diverse team of trained independent dispute resolution associates that are experienced and reputable professionals in the market. These third-party associates of Mediate Works must abide by a strict standard of quality and a code of conduct. This is monitored and managed by Mediate Works. All complaints are addressed by Mediate Works.
Law firms can work with Mediate Works in handling their third-party dispute resolution work without the fear of losing their clients. We guarantee that law firms retain their clients and have no interest in competing with law firms. We ensure that law firms remain at an arm’s length from third party processes. This allows law firms to continue representing clients as they should, without any hindrance to their innate partiality. It is this role that law firms are designed to fulfil.
We thus recommend that law firms and lawyers work with organisations such as Mediate Works in managing third party dispute resolution processes. It makes legal, ethical and business sense!
Call us now to learn more about what we can offer you!