In the Spring and Summer of 2022, American University Washington College of Law (WCL) Professor Walter A. Effross discussed with leading in-house and outside counsel the scope and goals of, opportunities and challenges for lawyers in, and useful resources for, the practice of ESG (Environmental, Social, and Governance) law.
As the conversations indicate, ESG law is one of today’s most exciting, fast-moving, far-reaching, and personally and professionally fulfilling areas of legal practice.
WCL welcomes and encourages law students, pre-law students, practitioners, and others interested in ESG to review the recordings below. (In each recording, clicking on the “CC” button adds captions.)
[This project is entirely independent of, and the practitioners in these conversations had/have not read or endorsed, the remainder of the content of this site.]
Introduction– Professor Effross (12/24/22) [13 minutes]
-Introduction to the ESG video series; attractions of ESG practice; and, practical resources for ESG lawyers and students
● “Here are eight reasons. . . why ESG practice is such a fascinating, flourishing, and fulfilling field.”
Lisa Kim, Executive Vice President and General Counsel
East West Bank (Pasadena, CA) (03/30/22) [6 minutes]
-Creation of an ESG program, and participation of a company’s departments; involvement of the Chief Risk Officer; and, benchmarks and metrics.
● ESG is “almost in our DNA.”
Cameron Findlay, Senior Vice President, General Counsel, and Secretary
ADM (Chicago) (04/11/22) [9 minutes]
-Initiatives including antideforestation, human rights protection, and climate/carbon concerns; formation of a Sustainability and Corporate Responsibility Committee of the board; preparation of an ESG Report; and, involvement of the CEO.
● “We’re gone from treating sustainability as a compliance issue. . . to viewing it as a business opportunity, and embedding it in our strategy.”
Douglas Currault II, Senior Vice President and General Counsel
Freeport McMoRan (Phoenix) (04/28/22) [10 minutes]
-Preparation of an ESG Annual Report as a coordinated, company-wide effort; and, the roles of the Legal Department and of the board’s Corporate Responsibility Committee.
● “Shareholders want this [ESG] data. . . We’re producing it because our shareholders and our stakeholders want to see it.”
Scott Coward, Chief Legal Officer, Exact Sciences (Madison, WI) (05/04/22)
-Diversity in executive hiring and in the boardroom; environmental initiatives; health equity concerns; and, the roles of the Chief Legal Officer and of the Corporate Governance and Nominating Committee.
● “[W]e’ve seen really. . . an explosion of writing and attention to [ESG].”
June Hu, Associate, Sullivan & Cromwell (NY) (05/13/22) [16 minutes]
-The lawyer as intermediary/interpreter among the scientific, regulatory, and other communities; understanding different stakeholders’ perspectives and concerns; and, the lawyer as predictor.
● “The most important thing. . . I’ve learned in practicing in ‘the ESG space’ is really being a good listener [and] someone who’s up to date on the latest trends and developments. . . . ESG really is an area that allows you to bring the past and the future together in a way that solves the problems we’re facing today.”
Gwendolyn Williamson, Partner, Perkins Coie (DC) (05/13/22) [18 minutes]
– Advising investment companies and their managers about ESG issues; addressing the absence of standardized terminology for some aspects of ESG; preventing “greenwashing”; and, European rules and SEC (current and pending) rules on ESG issues.
● “I’m a regulatory- and compliance-focused practitioner, and I help asset management industry players comply with the federal securities laws that were really put in place to protect ordinary investors.”
Neil Popovic, Partner, Sheppard Mullin (San Francisco) (05/13/22)
– The involvement of many practice areas of a firm in its ESG counseling; identifying emerging issues for clients; mandatory and voluntary standards; SEC-proposed rules; and, the ESG-related roles of the board, board committees, and the (relatively new position of) “Chief ESG Officer.”
● “[ESG law] is a uniquely multidisciplinary practice, and an interdisciplinary practice, . . . both on the paying side and on the pro bono side. . . . If most of us think back, this is the kind of stuff that made us want to go to law school in the first place.”
Jonathan Ocker, Partner, Pillsbury (San Francisco) (05/17/22) [19 minutes]
-The relation of an “executive compensation” practice to ESG; “say on pay” votes by shareholders; the role of ISS (Institutional Shareholder Services); and, the role of a Chief Sustainability Officer (including at some law firms).
● “Almost every big company has started adding an ESG factor to its [annua] cash bonus plan” for senior executive officers.
Honeywell (Charlotte, NC) (05/20/22) [32 minutes]
-Developing a company’s ESG program; ensuring accurate and appropriate disclosures; identifying emerging issues; becoming grounded in both the relevant science and the relevant law; specializing within ESG practice; dealing with nonstandard terminology; and, helping regulators shape policy.
● (Mr. Hook:) “There are roles for lawyers throughout the entire spectrum of creating an ESG program.”
● (Ms. Lu:) “In this area, there’s a lot of opportunities to go deep and specialize; there’s also a lot of opportunity to go broad. . . and cover the entire canvas. . . . No matter what area of law you’re practicing on a technical basis, there’s an ESG aspect to it.”
Michael Blankenship, Managing Partner, Houston office of
Winston & Strawn (05/20/22) [12 minutes]
-The advantages to ESG lawyers of a general business background, and of industry-specific education; working with evolving definitions and metrics; the components of ESG; popular misconceptions about ESG practice; and, the relevance to ESG practice of crisis management experts.
● “ESG finance has become big now. . . It is another [ESG] area that people probably don’t think about.’
Susan Maslow, Co-founder and Partner, Antheil Maslow & MacMinn
(Doylestown, PA) (05/24/22) [18 minutes]
-The American Bar Association’s (ABA’s) involvement with supply chain issues, particularly with regard to preventing forced labor and child labor; ABA resources, initiatives, and opportunities for lawyers and law students; the diversity of legal practice areas related to ESG; identifying emerging topics; and, increased ESG activism by employees.
● “The most significant attribute of [involvement with ABA programs] on the part of the law student might be networking—It’s not just content, which is extraordinary, but also the networking opportunity, which is. . . incredible.”
Sofia Martos, Partner, Kirkland & Ellis (NY) (06/01/22) [28 minutes]
-Emerging issues in the “Social” element of ESG; specializations within, and the range of a practice groups that can become involved with, a law firm’s ESG practice; the role of outside ESG counsel; international aspects of ESG law; the preparation of “client alert” memos on new topics of concern; and, a concluding three minutes of special advice for law students.
● “[ESG law is] a really dynamic space, and requires a lot of collaboration [with colleagues at the law firm], and it requires a lot of learning.”
Jessica Burt, Partner, Stradley Ronon (DC) (06/02/22) [15 minutes]
-Mutual funds’ disclosures to investors; the effort to standardize terminology used in such disclosures; the “hive mind,” and global aspects, of ESG practice; helping boards to fulfill their oversight responsibilities; preventing “greenwashing”; and, regulatory initiatives.
● “One of the things that I tell junior associates when they sign up for [writing] these client alerts [memos] is, ‘You know, it doesn’t count for billable hours right up front, but I promise you, when you start investing your time in this, you will become the ‘go-to’ expert on this, and it’ll turn into billable work. I have seen it happen.’ . . . It’s really a booming industry to get involved in.”
Cravath Swaine & Moore (NY) partners John White (Chair, Corporate Governance and Board Advisory Practice), Matthew Morreale (Head of the firm’s Environmental Practice), and Michael Arnold (Member of the firm’s Corporate Governance and Board Advisory Practice) (06/06/22) [40 minutes]
-Paths into, and backgrounds for, ESG practice; the relationship of ESG practice to more traditional practice areas; advising boards on ESG issues; the allocation of ESG responsibilities within a company’s governance architecture; ESG-related skill sets for directors; and, the board’s reponsibility, beyond its role in developing strategy, to install ongoing, company-wide systems for collecting, processing, and producing reliable data.
● (Mr. White:) “Right this moment, [ESG] is pretty much dominating our advisory practice. . . . It’s the priority topic.”
Jillian Kirn, Shareholder of Greenberg Traurig (Philadelphia) (06/14/22)
-Backgrounds for practicing ESG law; the appropriate time for a company to consult ESG counsel; the relationship of ESG to compliance; identifying best practices; moving towards standardization of terms and practices; and, the overlapping components of ESG law.
● “ESG is a conversation. . . It’s also developing around the world. It’s a global conversation, and that’s part of what makes it so dynamic.”
David Colvin, Partner, Fox Rothschild (Philadelphia) (06/15/22) [52 minutes]
[*This conversation, because of its broader focus on practical issues of legal ethics, might be of interest even to those not primarily concerned with ESG issues.]
-The aspects of a “professional responsibility” practice; the distinction (if any) between the offices of General Counsel and of Chief Legal Officer; the sometimes-blurry line between “legal advice” and “business advice”; the application of the ABA’s Model Rules of Professional Responsibility 1.1 (Competence) and 2.1 (Advisor) to ESG practitioners; Pinocchio, the Blue Fairy, and Jiminy Cricket; providing counsel in rapidly-developing situations; the professional ethics of giving an “I don’t know” answer, or a substantive answer but under extreme time limits, to a client; and, professional responses to perceptions of “bad vibes” and/or “hinkiness.”
● “Because ESG touches every corner of every company, any legal service that can be delivered and targeted to those areas falls under the ESG umbrella.”
William O’Shaughnessy, Deputy General Counsel and Corporate Secretary,
Quest Diagnostics (Secaucus, NJ) (07/11/22) [24 minutes]
-The ESG-related roles of in-house counsel and of other elements of a company’s governance structure; balancing the perspectives and concerns of different stakeholder groups; the perils of reducing complex explanations to “soundbites”; the future of ESG; and, specialization versus generalization in ESG practice.
● “One of the most interesting aspects of working in [the ESG] space is that so much of the activity can be driven by what you find on the first page of the newspaper.”