Modern Law Magazine Issue 67

LEGAL
TECH TALK
Interview with Jane Pittaway
Executive Chair - General Counsel Sustainability Leaders
LEGAL
TECH TALK
Interview with Christine Uri
ESG for In-house Counsel
Bradley: Hi Jane, how has the legal
role evolved when it comes to ESG?
Jane Pittaway: C-suites are
increasingly deciding that their
legal departments are either
partially or fully responsible for ESG
(Environmental Social & Governance)
compliance and governance. This
has led to law firms setting up service
lines and groups to support their
clients.
Governments worldwide are also
issuing more and more regulation
in response to increasingly complex
global issues such as the climate and
ecological emergency.
Just as ESG itself has evolved over
the years, so the role of lawyers
has evolved and developed both
generally and specifically in relation
to ESG. It wasn’t so long ago that
lawyers were “just lawyers” but over
time they have evolved into trusted
business advisors and strategic
leaders working within multinational
corporates and law firms in an
increasingly global and complex
landscape.
The Law Society has recognised
this by issuing its excellent climate
guidance for solicitors which has
clearly signposted the direction of
travel for how the role of lawyers
will continue to evolve in this area,
particularly around climate.
“You are all climate lawyers now,
whether you want to be or not” was
the powerful message from John
Kerry, US Special Presidential Envoy
for Climate in his speech to the annual
conference of the US equivalent of
the Law Society, the ABA.
Bradley: It’s interesting to see
how lawyers’ roles have evolved
when it comes to ESG. Given this
transformation, can you elaborate
on why in-house lawyers are
particularly crucial in driving
ESG initiatives within corporate
organisations
Jane: GCs and their teams operate
at the intersection of business and
law. General Counsel and Chief Legal
Officers are more than lawyers – they
are key strategic members of the
senior leadership team. They have
a helicopter view of their business.
They are great at working across silos
and horizon scanning. GCs and CLOs
are perfectly placed to take ESG
leadership by using their role and
their obligation to be professionally
curious. To ask the “what if”
questions and go from there.
In short, they are uniquely placed
to ensure that the good intentions
and word of their organisations are
turned into action.
Even when considering risk,
it is not all about zooming in
and implementing detailed risk
management procedures. It is
equally important to zoom out and
look at the overall enterprise risk –
joining the dots and bridging silos.
It is important to remember it is not
all about managing risk – for any
company it Is also a risk to not spot
rising opportunities and getting left
behind. Identifying vulnerabilities
needs a focus on reward as well as
risk. Just think Blockbuster vs Netflix.
Inhouse teams, led by their GCs, are
crucial to the processes of managing
risks, identifying vulnerabilities,
bridging silos and joining dots.
Bradey: Thanks for the eye-opening
insights Jane. Given the unique
position of General Counsel, what
do you see as the most significant
challenge they face when trying to
implement these changes, and do
you have any suggestions on how
they can effectively overcome these
challenges?
Jane: We have seen many lawyers
gain considerable value from leaning
into ESG issues, and they do this by
dealing with the two big challenges:
time and capabilities.
All lawyers feel lack of time is one
of the biggest challenges. There
are various different ways to
address that issue from building
time into your diary weekly to
focus on ESG, to outsourcing
other work to focus on this area, to
putting together a business case
for more ESG-focused resource.
Lawyers also need to build their
capabilities and they need to do
so quickly. Possibly the biggest
challenge is simply taking that
first step.
If any lawyer wanted to start this
week, I’d say don’t do everything at
once – pick say a couple of actions
to start with and focus on them. The
key thing is to choose something
which is additional to what you
already doing and ambitious for you
but not a massive leap (or you might
find it too overwhelming).
It should be specific, and you should
give yourself a deadline for achieving
it. Also ensure you’ve worked the
intermediate steps in furtherance of
your goal to help create and build
momentum.
Many lawyers in private practice and
inhouse are building value via ESG:
you can join them.
Start from where you are today and
build from there.
Bradley: Hi Christine, how has
the legal role evolved with respect
to ESG?
Christine: It is an area that is rapidly
changing. Traditionally, in-house
counsel has not been heavily involved
in the environmental aspects of an
organisation. These matters were
typically handled by sustainability
experts, facilities personnel, or other
individuals within the organisation.
However, there is a growing body
of regulations coming into effect,
such as the Corporate Sustainability
Reporting Directive (CSRD) in
Europe. Additionally, there is an
increase in ESG-related litigation,
particularly greenwashing litigation.
The UK is a hotbed for such litigation,
as evidenced by the recent cases
against Shell Oil. As ESG becomes a
more prominent legal topic, general
counsel are being forced to get
involved, whether they want to or not.
In short, the legal role in ESG has
evolved from a back-office support
function to a front-line advisory
role. General counsels are now
responsible for ensuring that their
organisations are compliant with
ESG regulations and that they
are not exposed to ESG-related
litigation. This requires a deep
understanding of ESG issues, as well
as the ability to advise on how to
mitigate ESG risks.
Bradley: Could you elaborate
on the key role general counsel
play in driving ESG initiatives for
corporates, and what specific
responsibilities they should
undertake in this area.
Christine: Absolutely, the role
of in-house lawyers and general
counsel in ESG initiatives is pretty
significant. It can vary depending on
their leadership style. Some general
counsel, either because they’re really
into ESG or due to their organization’s
structure, take ESG and sustainability
under their wing. Around 15% of
general counsel do this, according
to a study by Corporate Council
and Morrison Forster. For example,
when I was the Chief Legal and
Sustainability Officer, I did both legal
and sustainability work.
In this setup, general counsel
needs to have a strong team of
sustainability experts to make
it work. But the more common
approach is to collaborate with
departments leading sustainability
and ESG efforts, which could be
in finance, strategy, or elsewhere.
Regardless of where it falls, general
counsel makes sure legal aspects
align with ESG goals.
They deal with various legal aspects
of ESG, like keeping an eye on new
regulations and getting the company
ready to comply. Supplier contracts
are a big deal because many
sustainability rules require data from
suppliers. Legal teams need to update
contracts for this and ensure suppliers
follow ethical practices, like labour
and human rights policies. In Europe,
they’re pretty strict about this.
Managing the supply chain is a big
task, especially with lots of contracts
to handle. And there’s also the issue
of “greenwashing” – making sure
a company’s sustainability claims
are legit. I’d suggest reviewing the
company website and press releases
carefully if a General Counsel asked
me about this. Sometimes, statements
get made without full consideration,
which can lead to legal troubles.
Nowadays, activists are keeping
a close eye on companies’
sustainability claims, and it’s
important to review all statements
for accuracy and to avoid legal risks.
Even true bold claims can bring their
own risks, so you’ve got to think
them through.
Bradley: Thanks for shedding a light
on this Christine. Can you delve
deeper into the key challenges
faced by General Counsels when
implementing these changes within
their organisations?
Christine: Sure, Bradley. The
paramount challenge for General
Counsels in this context is the
deeply cross-functional nature
of ESG and sustainability
initiatives. While General Counsels
can lead and offer guidance
on these initiatives, bringing
them to fruition demands
collaboration and commitment
from various departments across
the organisation. This requires
engagement from operations,
finance, marketing, sales, product
development, and, of course, the
sustainability team if one exists. In
essence, it’s a large-scale crossfunctional
project that necessitates
bringing together stakeholders
who may not directly report to the
General Counsel but are integral to
the implementation process.
Another significant hurdle is the
matter of budgeting. Implementing
ESG and sustainability initiatives
typically requires financial resources.
Thus, General Counsels must
navigate the process of presenting
budget proposals to the executive
team and securing the necessary
financial support for these
endeavours. Finding ways to allocate
the appropriate budget becomes an
essential part of the challenge.
So, in summary, the most formidable
obstacles lie in garnering crossfunctional
support and obtaining the
required budgetary approvals.
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