Kelly Fermont examines how considering ethics alongside commercial objectives can help lawyers move beyond being trusted advisers, and to shape business decision-making 


What if we went a step further when building credibility as a legal adviser, by also helping our clients’ businesses become more trusted?

As lawyers, we are uniquely placed to shape and inform key decisions to improve the quality of decision-making. Whether you work in-house as I do, or provide advice to external clients, it is important that, in addition to offering competent legal reasoning and guidance, we also raise questions of ethics for consideration.

We can position ourselves as business leaders by providing legal advice that enables others to be decisive, while feeling understood and informed; shaping decisions and organisational direction through powerful questions that consider the legal and ethical consequences of business operations.

When it comes to decision-making, iterations of the following checklist will be familiar to many:

  1. Is it legal?
  2. Is it ethical?
  3. What would our customers say?
  4. What would our critics say?

As lawyers, we have a responsibility not only to answer question (1) competently, but to also ensure that questions (2), (3) and (4) are being answered too. We must use our strength of questioning to incorporate each of these points into decision-making discussions.

Trust = competence + ethics

The Edelman Trust Barometer defines trust in business as being a combination of competence and ethics, with ethics being defined as having a purpose, sharing it transparently and delivering to it.

There is business importance associated with being trustworthy. Trustworthy companies have many competitive advantages, both commercially and when attracting talent. We know that, sometimes, what is legally allowed may not be the right thing to do, and so checklists such as the one above allow lawyers to influence business decision-making through the lens of other stakeholders too.

Do your decision-makers feel understood?

When advising in sensitive or complex scenarios, your decision-makers will need to digest many viewpoints, of which legal advice is only one. It is important when framing advice that it is communicated with an appreciation of the business context – this might be done tacitly, but it rarely hurts to be explicit.

The value of the advice is greater when it is clear that we have applied our legal expertise to the reality of the dilemma, rather than providing a beautifully crafted piece of legal analysis that is not directly relevant to the decision to be made.

If our decision-makers are directors, it is additionally important to show a wider appreciation of the business, and the industry in which it operates. As lawyers, we are aware that directors’ duties will require this of them under sections 172 and 174 of the Companies Act 2006, and so it is important to show awareness of external pressures and other inputs that they might have to weigh up when coming to a decision.

Rather than cite legislation it can be more helpful to refer to the checklist to shape organisational decision-making in a way that encompasses many of the relevant considerations. It is no coincidence that the purpose of many companies incorporates some reference to balancing profit with people, and the planet. This is increasingly the expectation of investors, employees, and consumers alike. Framing discussions in business language helps.

Is your advice relevant?

Early in my career I learnt that pre-empting the question “so what?” and articulating the answer in the executive summary of any legal advice would avoid this question inevitably being asked by business colleagues. This one question has served me well when seeking to inform because it frames the importance of the legal advice while being clear that is it provided in the context of the decision to be made.

I enjoy legal analysis and debate, perhaps you do as well. However, we can presume that our business colleagues will be less fascinated by legal nuance, something that we have learnt over many years to appreciate and adore.

Asking “so what?” can serve as a sense-check; if you are unable to answer this question when trying to inform your business decision-maker, it might be an indication that additional context is required before you can provide legal advice that is practical and valuable. This question is also a useful nudge to provide advice in plain language, and to include recommendations as to what progress or alternative options might look like.

Are you a leader?

As lawyers, we have an opportunity to shape decision-making scenarios in a way that is valued by a decision-maker. We can positively influence outcomes, which in turn dictate organisational direction. When we provide legal advice, we can also provide a checklist of questions to enable ethical decision-making and avoid business blind spots.

We can be more than lawyers; we can be lawyers and business leaders.