Many people dream of working at NautaDutilh. This was not the case for Harm Kerstholt when he went for a job interview with the firm in 2001. He actually hoped he wouldn't get the job as an associate in the energy department. 'It seemed a stuffy and old-fashioned firm. But I hadn't applied for a job in a while, so I thought it would be good practice. I chose jobs I definitely didn't want, so I wouldn't mind as much when I wasn't selected.'
But after a 45-minute interview, he received a job offer that same evening. 'I realised it actually felt good to be chosen. So I accepted it.' When he signed, Harm realised he was excited by the prospect of starting a new job. 'There were two partners with a good reputation. Suddenly I wondered if I was good enough for the firm.'
Harm ended up practicing energy law by chance. He started his career at an accountancy firm. 'A large American firm, with a similar culture. On the one hand, it was always made clear that you were very special but, on the other hand, there was an enormous hierarchy.' The purpose? To encourage competition. 'But it started to bother me more and more. I am quite competitive, but I want to win as part of a team.'
After eighteen months, Harm had already decided to look around, but he didn't really know what he wanted. 'When the firm created an energy group, I saw that as the ideal way out.' Together with accountants, consultants and tax advisors, he assisted American energy companies that wanted to gain a foothold in Europe. 'It was not very high profile work, but the sector and the substance appealed to me.'
When the lawyer for whom Harm worked left after three years, the firm proposed that he become head of the energy practice. 'That was madness. I had only just started and hadn't even finished my training. It was like asking a toddler to care for a baby.'
Despite the promised offers of help, Harm decided to leave. 'They just needed someone to do the job. I didn't feel taken seriously at all.'
At NautaDutilh, he was hired as an associate instead of a department head. 'I arrived at a firm that was in a twilight zone between a modern and an old-fashioned organisation. The image I had of a somewhat stuffy place to work was true in some ways, but there were also some very special people within the organisation. I knew I could learn a lot from my colleagues.'
He felt at home right away. 'I had a lot of bravado, but I was just one of many characters. Everyone was accepted as they were.' He compares it to a flock of starlings. 'To an outsider it seems as if they are flying in all directions, but in the end starlings always head south. It doesn't matter how each individual bird gets there. In any case, it's not in a straight line.'
This 'own direction' approach sometimes resulted in a lack of strategy. 'One advised multinationals on IPOs while another handled divorces. We didn't have a clear picture of who our target group was.' It may seem clumsy, but Harm looks back fondly on this time. 'In those days, you had lawyers from the maritime practice who, after a collision, would board the ship with a bottle of gin to see what had happened. That kind of thing is unthinkable now.'
'It felt like I was doing everything for the first time. The challenge was energizing.'
He himself had an interesting time with NautaDutilh's energy team. 'The energy market opened up and all kinds of parties from other countries came to Europe to set up organisations. New products were invented, the work was very dynamic.' Harm advised on the construction of power plants and helped clients buy land, connect to the grid and obtain financing. 'It felt like I was doing everything for the first time. The challenge was energizing.'
However, an unfortunate series of events caused his practice to dwindle. 'Shale gas was discovered in America. This made energy so cheap that coal was shipped to Europe. Coal-fired power plants became cheaper to operate than gas ones, and the projects I had been working on stopped. They were no longer profitable.' Another event that directly influenced his work was the Fukushima nuclear disaster in 2011. 'Before that, I was working on gas storage, but afterwards no one wanted to go near this area.'
New York City
And so it happened that, in 2013, Harm had to reinvent himself. After spending some time working on oil and gas cases, an opportunity came along to fulfil his boyhood dream of working in New York. 'When my wife and I married 21 years ago, I set one condition. If I got an opportunity to work in New York, we would go.'
His wife was hesitant at first but eventually came around. And so Harm moved with his wife and three children to the city that never sleeps. 'I arrived there empty-handed and had the naive idea that I would have a flourishing practice within six months. But it doesn't work like that.' Harm, who had worked for years to build a reputation on the legal market, had to take it in stride. 'In the Netherlands people knew me as someone who understood complex projects and contracts in the field of energy law. In New York, I was a nobody. In the first few months, I asked myself dozens of times a day what on earth I had done.'
After six months, however, Harm began to find his footing. 'Cases came in, but I missed making a real difference for clients. In America, a lawyer is much more in the background. That gave me a newfound appreciation for the work I did in the Netherlands.' There were also things that bothered him about life in America. 'I was surprised by the enormous amount of waste. If you went shopping, you were given 26 huge plastic bags; even if it poured, the sprinkler was still on a timer. It just didn't seem to be an issue in America.'
He started reading more about sustainability and what it could mean for his practice. 'I attended some conferences on sustainability and organised a conference for the heads of the legal departments of Dutch companies listed in the US. I wanted to make a substantive contribution to sustainability-related transparency requirements in the financial statements.'
'Be open and, if it's not right, do something about it. You have a certain obligation to know what is happening in your business.'
As soon as Harm delved into the subject, he was hooked. He studied everything, from frameworks to sustainability goals and from corporate integrity to the role of the legal profession. 'There are actually a great many recommendations or rules in the field of sustainability. What's important in this so-called soft law is not so much whether something is legally permissible, but whether it is desirable for a company, from a broader perspective than simply profitability. The underlying principles are actually pretty simple: be open and, if it's not right, do something about it. You have a certain obligation to know what is happening in your business. Suppose you order garments from India. It's up to you to know whether they are made by child labour. Legally, you don't have to check this point, but you do have a social responsibility to find out.’
Moreover, companies benefit from transparency. 'As soon as something like this comes out and you have to justify yourself to the public, it causes enormous reputational damage. It's important to be transparent and not simply look at whether something is legally permitted.'
Soft law provides lawyers with practical tools to enter into a dialogue with companies about transparency and abusive practices. Harm cites Dieselgate as an example. ‘This incident shows the importance of integrating corporate social responsibility into the strategy of a company. The public does not accept such lack of transparency. In the end, it caused the company nothing but trouble.'
Yet he does not see it as his job to lecture companies on norms and values. 'Lawyers are not priests, we look at the client's interest. A lawyer does not necessarily have the knowledge or experience to determine whether something is sustainable or 'decent'.' But what you can do is look at the bigger picture. 'And transparency in a company's business model is almost always wise in order for it to remain relevant and profitable in the long run.'
But how far can you go as a lawyer to bring about change in companies? What if you continue to give advice on a particular matter and the company ignores you? Suppose you see that certain actions of your client seem to violate human rights, but your recommendations are ignored. Do you walk away or do you stay and try to get the company to make other choices?
Harm finds the answer to these questions in soft law principles. 'The client's interest in retaining you means that you can ask them to change. If you apply this principle, it means that, as a lawyer, you simply have to work harder to do your best.'
According to Harm, this is how law firms can have the most impact. 'At NautaDutilh we handle cases like the Urgenda climate case, but we also advise clients like Shell, Total and banks. That may seem contradictory, but if I, as a lawyer, can ensure that a client takes something away from the sustainability recommendations I've made, then my impact is much greater than if I only worked for companies like Tony Chocolonely or Fairphone, which are pioneers in the field of sustainability and corporate social responsibility.'
Yet he notices that this view is not yet commonly shared. 'People often think in terms of right and wrong. Behind the scenes, a lot of thought goes into this, but profiling yourself as a sustainable firm also means that you will be called to account for assisting clients active in sectors that contribute more on average to global warming or that are not yet active at all in the field of corporate social responsibility.'
Harm would like to make bolder choices. 'Lawyers are risk-averse, but I don't think we should be afraid of being called to account for the things we stand for.'
He suggests, for example, adding a question to the questionnaire to be completed for new matters. 'Now we take on cases if we are not conflicted and if we have the relevant legal knowledge to assist the client, but perhaps we should also look explicitly at whether a company reflects our norms and values.' Harm stresses that this is his own opinion. 'This is a big point of discussion within the firm. What I like about NautaDutilh is that there is room for me, personally, to act in accordance with my conscience. But that also means I have to accept that I cannot impose my views on the firm as a whole.'
Harm admires companies whose primary objective is to make a positive social impact. 'Tony's Chocolonely, Fairphone. If it's sincere, this can be a very successful strategy.' Is this also possible in the legal profession, for example standing for what's right or fair rather than what's simply legal? 'There's indeed a trend towards more pro bono work. This is also important in order to be an attractive employer.'
'It's fine for us to stand out more, even if it means we run a greater risk of being asked to account for the choices we make.'
For Harm, it's ultimately a question of finding the right balance. 'I would like to see us, as an organisation, place even more emphasis than we already do on social impact, in addition to the pursuit of profit maximisation. I think that issues such as sustainability and responsibility make NautaDutilh what it is. It's fine for us to stand out more, even if it means we run a greater risk of being asked to account for the choices we make. As far as I'm concerned, that's not a bad thing. After all, those who set the bar high may sometimes fall below it.’
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