There is something very frightening about the future of society if law firms are expected to maintain their ‘social licences to operate’ (‘SLO’) and to advocate, not on behalf of clients, but in their own capacity, for particular social and political causes.

It was suggested in a different publication that a need to maintain SLOs is the reason law firms are publicly expressing their support for the Indigenous Voice to Parliament.

The additional work, and therefore fees, that will almost certainly come with the introduction of an Indigenous Voice to Parliament appears to be beside the point. Other factors suggested as being relevant to law firms’ SLOs included whether they are ‘Net Zero’ or have been public claims of bullying or harassment made against them.

The question of why law firms do or do not publicly support particular social or political causes, run ‘Net Zero’ operations, or comply with relevant laws regarding employee conduct is not the important one. Apart from a few listed firms (a concept that raises enough questions on its own), law firms are (generally) partnerships and it is up to the partners to run their firms as they see fit. The situation is different with, for example, listed companies, which must be run for the benefit of shareholders.

In respect of law firms, the crucial questions are why, and should there be, any expectation for them to maintain an SLO?

Law firms, together with the judiciary, barristers, in-house counsel, and all other members of the legal profession, play an essential role in society. A strong legal system is fundamental to our way of life and to Australia’s generally enduring economic prosperity. It is why, perhaps other than during periods of Covid lockdowns, Australians enjoy more freedoms than almost anyone else in the world. It is why individuals and companies do business in and with Australia. It is why Australian is one of the safest countries in the world.

Key to our strong legal system is the rule of law.

Though apparently regularly forgotten these days, the rule of law includes the presumption of innocence and the right to legal representation – for anyone. This includes any individual, company, government, or agency, regardless of their products and services, the nature of their policies or beliefs, the volume of their greenhouse gas emissions, or the nature of their alleged behaviour.

Whatever their speciality or type of practice, lawyers owe a paramount duty to the Court and to uphold the rule of law. The duty to the Court cannot be abrogated and, to the extent of any inconsistency with other duties, including duties owed to clients, always prevails. Of course, unlike barristers, law firms are not subject to the cab-rank rule and therefore are never obliged to act for any client.

Equally, lawyers should certainly not stand in the way of any person (natural or legal) obtaining legal representation or to criticise another lawyer for acting for a particular client. Whilst there are circumstances in which it is appropriate for lawyers and law firms to voice their opinion on matters of law and policy reform, they are still required to uphold the rule of law, and therefore the substantive law, as it exists at any particular point in time.

It is because of their part in upholding the rule of law that through their role in the broader legal system, law firms provide enormous value to society. They do not need a ‘social licence’ to carry on their business.

Indeed, it is only because of the business of law firms and the system in which they operate that the preposterous notion of SLOs has been able to develop at all. Without a strong legal system, there would be far bigger concerns than the non-economic, social purpose of companies. To the extent anyone is prepared to concede that the concept of SLOs exists outside of academia (a debate for another day), law firms should be taken as having a permanent SLO.

If this is not the case and a societal expectation for law firms to maintain an SLO is allowed to develop, there will likely come a point at which maintaining an SLO becomes inconsistent with upholding the rule of law.

After all, law firms are also businesses that compete with one another for work. If society, for example, starts to penalise law firms because of the nature of the clients for whom they act (e.g., through shareholders of another company refusing to brief the firm or government policies to the same effect), law firms may ultimately be left with no other commercial choice than to not act for particular types of clients. Law firms may similarly be prevented or discouraged from voicing their professional opinion on contentious areas of law.

Again, none of this is to draw any conclusion about whether or not law firms should publicly support an Indigenous Voice to Parliament, ensure they are carbon neutral, or otherwise comply with whatever is socially popular at the time. That is a matter for the relevant partners.

What is of the utmost importance is that society does not expect law firms, or any lawyers for that matter, to do anything other than uphold their duty to the Court, the rule of law, and the duties owed to their clients. Any action or expectation placed upon lawyers and law firms that does not align with their duty to the Court and to uphold the rule of law should not be allowed to persist.

The role of the entire legal system to the functioning of society, the freedoms enjoyed by all Australians, and our economic prosperity should not only be understood, but respected. It is essential to the future of the country.