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5 months ago

Awards to lawyers? Here’s why we don’t need a battle of honour

Cristina Montaruli | Valletta Relazioni Pubbliche

At the beginning was the advent of the Internet and the first websites. 

The issue, for the Italian legal sector, emerged with extreme delay, favoured by the obstinate reluctancy of the forensic institutions to govern the phenomenon by regulating it; under the illusion of being able to stifle the change of the socio-economic context - read market, because the market was and still is talked about, although some veterans of the courtrooms and forensic politics turn up their noses.

And it is precisely the lack of an organic and super partes regulation, at the dawn of the 2000s and for the following 15 years, that has been at the origin of all the deontological battles, some with almost comical outcomes.

It was 1999 when the most innovative lawyers (and among them, for obvious reasons, those in the corporate-business sector) celebrated the opening to so-called “informative advertising”, a hybrid concept that replaced the odious term advertising.

Until 2006 (the year of the EC Directive known as Bolkestein), the Deontological Code listed the permitted tools of informative advertising, including magazines and legal publications, and websites with their own (or related) domains. This last specification caused quite a few questions, especially with the advent of social networks.

The Bersani Decree came along and affirmed, in fact, the opposite principle of a substantial freedom of form in communication as long as the modalities and contents complied with the dignity and decorum of the profession. 

In 2012, year of the Italian Regulation of Law Practice reform, there were first openings to the presence of lawyers and firms on sites "managed by third parties", but with such reluctance between the lines that led many Bar Associations often unjustified restrictive attitudes, fertile ground for skirmishes - those undignified - between rival lawyers. A note on the reluctance: it was also the year in which the United Sections - for example - confirmed the disciplinary sanction for a lawyer who had the audacity to use the expression "Rights Corner" on his website and refused to take into account the "voluntary correction" of the latter, as non-existent institution in the forensic disciplinary system - Cass. Civ. sez. Unite 14368/2012: as to mean: is no forgiveness when it comes to position rents.

Only with the Deontological Code reform in 2016 did we completely get rid of the limits on the use of our own or third-party websites and, in general, there was a substantial awareness of the evolution of the profession.

This overview is just a reminder of the exhausting struggle for a real opening up of the entire Italian legal profession (and not only of the business lawyers, which today are assisting companies on a national and global scale) to the logic of the market - by now free to borders logic - which in the last 20 years has changed as a result of contamination between business models, entrepreneurial cultures, different professional and deontological approaches, innovations and digital tools (so many that keeping up with them is to all intents and purposes a new job) that have projected our lawyers into the world. Or at least those who, due to competitive overcrowding, have left the firm and followed client companies in their markets, responding to their needs, learning their language in order to be understood and therefore chosen (does the term Legal design mean anything to you?).

In this context that I have just described, there are Awards, Rankings that combine the stories and figures of companies, operations, business lawyers (before litigators, because litigation deserves a footnote). These Awards and Rankings are notoriously and globally tools that companies use when the need arises for specialised legal services in other jurisdictions, from professionals with proven, or demonstrable, experience.

If we now want to tell ourselves that, by virtue of education, qualification, experience, continuous training all lawyers are equal, we are hiding behind a finger. Every lawyer can inform the market about his or her skills, but the potential client will ask him or her about mandates and clients. And here, with equal training, competence and potential, abysmal differences will emerge (does the practice of Beauty Contests ring a bell?).

Back to the Awards. Since the 1990s, "Guidebooks" (such as Michelin Guides) have been created, mostly in the UK, by publishing groups (such as the Financial Times) or industry think tanks, which list law firms, teams and individual professionals according to various qualitative survey criteria (industry sectors, types of transactions, jurisdictions, client satisfaction, opinions of other industry experts including competitors/peers).

These tools are used, everywhere, by thousands of operators in the economic and financial world (Companies, Management Consultants, Institutions, Financial Institutions, Universities, Journalists, etc.) and this is why an award or a high ranking in a ranking have taken on significant weight. And always around this crowded world, which moreover has created jobs and generated wealth, a need for information has understandably grown, hence the birth of specific magazines, periodicals, digital and paper, newspapers dealing with news.

Therefore, I do not think it is right to lump all the news together and to quote court-registered 'newspapers', questioning whether the news they publish is to all intents and purposes news, since there is a large number of people interested in reading them.

That said, since the 2000s, counterparts of those publishing products present in other countries have been born in Italy. Among them is the infamous magazine, with its prize, which has made the headlines for the GKN affair.

The case has provided the opportunity to yell at the "Predatory Prize",  the events from which all participants-payers go home with a fake prize, there has been mention of Law Firms being directly contacted (after “sifting” through sites and some research in the press) with the offer of a prize, but I don't think that this is what happened in this specific case. 

In some cases, I do not exclude it but I have not had direct experience, the notoriety of a legal matter, and consequently of the lawyer, has facilitated the entry "ad honorem" in the panel of finalists without independent application, but at the basis there is a whole complex process of presentation of which, many who speak these days have no idea.

For insiders, these are the so-called Submissions: articulated application forms where descriptions and reviews of cases dealt with by the firm are provided, both in an "explicit" version for those already public (communicated to the press, for example, by the client company or at its request), and in a "censored" and unattributable version, i.e. confidential. The work is complex, because it is a question of bringing out particularities of a case that usually remain known (or understandable) only to the technicians and those directly concerned: uniqueness of an issue, complexity, impact on the market, effect on the strategic objectives of the company, overturning of case law. Let's keep in mind: we are talking - in most cases - about business lawyers who work (or could be chosen to work) with companies that demand and are asked for transparency by the market, including the global market, a transparency that often includes the names of the lawyers who have followed the transactions.

Moreover, taking the prize or positioning oneself is not easy. Even in the specific case that generated the scandal - if you go deeper - you would notice a plethora of big names who made it to the final, paid for the table, and went home with a fistful of flies (and I know this because then my phone starts ringing).

Of course yes: there are Predatory Prizes too. Yes, the criteria for awarding them are not always clear and/or detailed, I have had this feeling more than once. But one cannot reduce the matter to a total commodity without the right distinctions and speaking from hearsay or the little one has experienced. This risks bringing to mind the story of the fox and the grapes, it pains me to say.

There is no doubt, in the case that has given rise to this debate, that there has been a gross error in the judging phase on the part of the magazine or jury or whatever (when it comes to litigation, it is necessary to go into the judgment phase of the pronouncement in depth, and in any case that the criteria of analysis become more stringent), a more improper communication on the part of the Law Firm (n.b. managing public relations, communicating, are specific skills of trained professionals) whose compliance with the criteria of truthfulness, correct information and decorum will be evaluated in the appropriate places, but engaging - again - in a battle of values between those who defend the honour of the Italian Legal profession and those who damage it is short-sighted and hurts everyone (all Italian lawyers, for the others... let’s leave a green field, let's give away a piece of GDP, let's put the brakes on the business Law Firms that generate more than 80% of the Fund's contributions).

In conclusion, in my opinion we need to get to grips with the problem, which means: from the perspective of the legal institutions regulating the case, from that of publishers and market analysis and research companies being completely transparent, loyal and vigilant in the award criteria, perhaps expanding the juries with the inclusion of institutional legal figures to guarantee the process and the evaluation.

Obviously, the issue of the disclosure of mandates and clients' names should be reviewed where there is express consent, an anachronistic issue that is in fact circumvented.

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