Jan. 6, 2022

An Eco-Conscious Lawyer Who Makes Going Green an Attractive Business Option

Environmental warriors are often inspired by stories of ecological travesties or climate problems that speak to their souls, and Donald Simon is living proof. A National Geographic magazine article he read as a kid in Ohio sparked a lifelong passion for protecting the earth.

Although he began working with nonprofits in environmental activism early in his legal career, he moved to San Francisco and pivoted into an entirely new area. His work in construction litigation led him to shape the green building industry and help clients develop green businesses. That work drew him to creating the benefit corporation, an alternative corporate structure now recognized in 37 states. Oh, and he founded a few eco-oriented nonprofits, too.

Through it all, Donald’s focus and commitment to taking care of our planet have driven his practice and book of business. Listen in as he describes how he uses his problem-solving skills to create change in the world and help clients do the same.


 

Guest Insights

  • Inspired to care about the environment as a kid looking at National Geographic magazine. [03:19]
  • Decided to pursue environmental law as an undergrad. [04:16]
  • Inspired by an Earth Day letter from the Duhamish Indian tribe chief to the OSU President. [05:16]
  • First litigator job in Columbus representing environmental groups against the Forest Service for illegal logging. [06:24]
  • Headed to San Francisco, headquarters of the environmental movement. [07:02]
  • Worked with nonprofits in environmental activism while working at a law firm doing environmental and construction law. [07:11]
  • Construction litigation sparked the idea to work with others to create a greener way to build cities and properties. [08:29]
  • Changing firms to Wendel Rosen and starting a legal practice around values to drive entrepreneurs to use business to effectuate positive environmental and social change. [11:18]
  • How a values group attracted business in the Bay area. [13:12]
  • LEED certification is like a Good Housekeeping Seal of Approval for building design and construction. [16:00]
  • Green business certification gives a level of certification for your business and the green measures you implement, and led to a national standard that became B Corp. [17:00]
  • B Corp looks at measures you implement to make your business operations environmentally relevant and show you look out for other shareholders’ interests. [17:43]
  • ESG and CSR deal with how a company engages around environmental and social impacts. [18:09]
  • Third-party verifications for certification give more credibility. [19:33]
  • Exxon uses greenwashing to make the public think it cares about the planet. [20:07]
  • Standards are being created to address different industrial processes and show companies who perform better environmentally are more profitable. [20:57]
  • Benefit corporation, in 37 states, redefines a company’s fiduciary duty to give statutory permission to directors and officers to consider environmental and social impacts of a business’s operations. [24:09]
  • Volunteering for an organization he cared about led to business development. [27:50]
  • Focusing attention where the need is greatest, but the attention is least. [29:50]
  • Putting in volunteer time to make benefit corporation a law led to work restructuring companies. [32:42]
  • His advice to people contemplating law school is to think about the problems you care about that need solving and focus your practice in that direction. [37:13]

Links From the Episode

Transcript

John Reed: [00:00:00] About 20 years ago, Robert Fulghum wrote a book called “All I Really Need to Know I Learned in Kindergarten.” The whole book centered around ten or so simple credos with such gems as “Take a nap every afternoon,” “Wash your hands before you eat,” and “Flush.” It’s a light read with some humor and things to ponder, but there’s another subtext there.

[00:00:21] What happened to our inner kindergarteners? A lot of us had a whole lot more passion for charity and kindness and sharing and diversity than we do now. At what age did the world get so heavy that it pushed our spirit and enthusiasm deep into our matching Garanimals pants and shirt and Buster Brown tracker shoes? Yeah, I was the picture of fashion back then, too.

[00:00:44] Fulghum had a couple other mantras that connect with today’s episode: “Put things back where you found them,” and “Clean up your own mess,” which I’m choosing to tie into sustainability. Without going into a “climate change is real” environmental rant, I will not hesitate to say us humans have done some major wrong to the planet. We haven’t replenished resources, our oceans are cesspools, and if we were graded on our efforts, teachers would be calling our parents to inform them that we flunked kindergarten.

[00:01:13] If there’s anything we can take away from Garanimals clothing ensembles and Buster Brown footwear, it’s that branding, marketing, and good old American capitalism work. Frankly, commercializing clauses like climate change may be the only way to change the climate. We’ve had electric cars for years, but it took Tesla and Rivian to make them cool. We’ve worn clothes for a long, long time, but Patagonia is making us think about what we wear in a whole new way. Even the way we practice law can be more environmentally and socially conscious. See what I did there? That’s called the segue.

[00:01:50] Today’s guest was that idealistic kid who felt the weight of the world on his shoulders and went on to a legal career in environmental defense. When the burden of uphill battles and the cost of living started to deflate his passion, he pivoted, pivoted a couple of times. He morphed from a budding eco-warrior to an innovative trailblazing lawyer, helping clients with green building and sustainability. He walks the walk, and he talks the talk, making environmental action not only commercially viable but also a preferred way of doing business, starting with his own law firm. He’s not the ideologically earth-conscious attorney you probably have in your head. Nope. He’s a modern-day tree-hugging sticky lawyer.

[00:02:34] Donald Simon is a partner with Wendel Rosen, a 60-attorney firm in Oakland, California, that dates back to 1909. Donald focuses on business and construction law, solar energy, and environmental policy. He co-founded the firm’s green business practice group and led its internal sustainability initiative, which included making Wendell Rosen the first law firm in the country to obtain a green business certification. If you don’t know your CSR from your ESG or your BDM, don’t worry. He’ll set us straight. Donald, welcome to the podcast.

Donald Simon: [00:03:07] Thanks for having me.

John Reed: [00:03:08] I want to have you chronicle your passion for the environment for us. When did it start? Do you have a memory of what first motivated you?

Donald Simon: [00:03:19] It was when I was a little kid, and my parents used to subscribe to National Geographic thinking that, you know, “Hey, maybe that’ll make these kids be a little bit smarter than they otherwise would be.”

[00:03:29] And I grew up in Columbus, Ohio, and we had basements in Ohio, and I was down in the basement. That’s where the magazines were kept. The new issue that my sisters had just kind of disregarded, I saw it had the story about the baby harp seals up in Canada that were being clubbed alive, killed to take their white pelts and turn them into fur jackets for people.

[00:03:52] And I flipped out and ran upstairs and told my mom I wanted to do something about it. That’s when the light first turned on that some things are wrong and I gotta do something about it.

John Reed: [00:04:03] So how did things progress? What was your path?

Donald Simon: [00:04:06] Parents always put ideas in your head about what you’re going to grow up to do. And so, when I was sick as a kid, I’d play with Legos and tinker toys to make cool things. So, my parents were convinced I was going to grow up to be an engineer, but then I encountered this concept of mass, and that did not work well for me in college. And I quickly found out that is not what I want to be doing. I had this passion for the environment at a pretty early age, and I just decided, you know, that’s what I care about. That’s what I want to get involved in. And I’m good at arguing and breaking down facts, remembering them, and being persuasive with them.

[00:04:43] And so I thought, you know, maybe I’ve got to go become a lawyer, and then I can go fight for the planet that way. And so that’s when this all kind of turned towards a career direction.

John Reed: [00:04:54] You went to school at that college in Columbus. I can’t remember the name up here in Michigan, what it is, but when did the law come into the picture? I mean, you mentioned law was going to be the way that you were going to be the warrior. Was that before you got to undergraduate?

Donald Simon: [00:05:10] Freshman year. Pretty much in undergrad. I just decided that’s where I could get engaged. Climate change was first really being discussed in any significant way for people that were paying attention around them. And I can remember there’d be an article on Earth Day, and it featured--somebody had put in a letter from the chief of the Duwamish Indian tribe in Washington state that he wrote to the president. And it was basically saying we’re going to give up our lands because the white man is coming, and you’re taking it away. You call us savages. But one thing I know as a savage is that we have the same God. And if you continue to contaminate your bed, as you white people are so fond of doing, you will one day suffocate in your own waste. And I cut that out, and I had that pretty much on my wall, all through college and all through law school. That was the epiphany of, “Wow, we can do so much better.” And I think being a lawyer is the way that I can best impact society to get out of its own way and think more long-term so that we don’t end up spoiling this place for all the future generations and the other creatures that call this planet home.

John Reed: [00:06:19] So you get your walking papers from law school. What happens next? Where do you go with this?

Donald Simon: [00:06:24] I was a litigator at a firm in Columbus, and the first case I ever had was to be the attorney for a couple of environmental groups to sue the Forest Service for doing illegal logging on Ohio’s one, kind of pathetic excuse for, a national forest. But it’s all we had, and nobody had been minding the store for the most part.

[00:06:44] So they just ran roughshod over environmental laws. And so, sue the federal government. Won. The federal government had to pay our attorney’s fees. And then, I quickly realized that I was part of a very small cadre of people in Ohio that were fighting for environmental issues. And I realized I wasn’t going to be able to make much of a dent in Ohio, so I set my sights westward. San Francisco is the headquarters of the environmental movement. And so, after working a couple of years getting experienced at a firm in Ohio being a litigator, I moved out here and put myself right away in the battles that were being waged to save the last of the old-growth Redwood trees. Then that just started me down the path of working with the nonprofits, Sierra Club, and others that were doing environmental action and activism. The whole time I was working for a firm doing environmental law and construction law and being a general-purpose litigator, and kind of had a new realization that the traditional route with environmental groups and suing the bad guys who were doing bad things was not working out so well. So, I had to come up with a new strategy, and that was the next pivot that occurred.

John Reed: [00:07:56] I’m all about pivots. And so, I want to talk about this. You mentioned construction law, and it sounds like it was pre-pivot, for lack of a better word, but was it a conscious decision, or did you land in that law firm to do environmental, and construction was put upon you?

Donald Simon: [00:08:12] It was the latter. As a kid in law school, you know, I want to be an environmental lawyer. Yeah, you got pretty quickly disappointed when you realized that at least at that time, all the work was really representing companies that were fighting over who got the bill to clean up the hazardous waste that they created from their operations. I had done some of that in Ohio, some Clean Water Act stuff and Clean Air Act stuff. I was hired at a firm in the Bay area to do that, but they also did construction law. And so, they’re like, “Hey, you’re a good litigator. We really need you to do construction as well.” And so, I’d been doing construction for a couple of years. And then, you know, I was just having this disillusionment with realizing that there wasn’t a lot of room for me to plug in, to go work for an environmental group and be their lawyer. There’s only a handful of jobs like that, and they were filled by folks that went to Harvard and didn’t have any student debt because they had trust funds, and I was not one of those people.

[00:09:08] The pivot occurred because I was looking around realizing that the traditional modes of engaging as a lawyer were not really producing the results that were needed. And so, we had to figure out a way to make the market an ally rather than an adversary. The construction experience I acquired as a lawyer enabled me, with the help of others, always with the help of others, to realize that the most damage we do as humans to the planet is associated with building cities and building properties. If we could change the way we do that to use fewer resources and have a lighter touch on the land, we could save money, but we could also help save the planet.

[00:09:52] That was when the green building movement was first beginning. And so, I just plugged myself into that because I could take my construction experience, my legal knowledge, and my environmental knowledge and help try to figure out how we can put in place the mechanisms that would use the market to change the construction industry to have a lighter touch on the land.

John Reed: [00:10:12] How entrepreneurial were you at this point? Was there crossover already, or were you the one that was saying, “I can bring these things together within this firm.” And then, secondarily, I guess I should ask, how big was the circle of practitioners out there that were doing green building law, environmental, and construction together.

Donald Simon: [00:10:37] The second part of that question is easy. There were zero. None. My firm at the time, you know, they kind of humored me. Because it started with getting them to clean up our own act, so, I just remember saying, “Hey, look guys, let’s clean up our own acts, and let’s look at what our environmental impact is.

[00:10:54] And I want to change us to recycle paper and where the papers made from paper instead of from trees.” And they humored me and switched up the paper supply. And I said, and I’ve got this idea where we could be the lawyers, that we kind of lead this whole green building movement and take it up to the next level and be the lawyers to the companies that are playing in that space. Nobody was doing it. There was nothing online talking about it.

[00:11:18] Just around then, I was interviewing at another firm that is my current firm Wendel Rosen, and I had an interview, and they were desperate for a construction lawyer. I was interviewed by I think there was like ten partners there because they needed someone STAT to fill this hole in the construction practice. And I said, “You know, I can do all that stuff, but let me tell you what I’m really into.” And so, I started talking about green building, what it was, how I wanted to engage with it, how I thought it could lead to a practice. And pretty soon, I was explaining to like two of the different partners that were remodeling their homes, how they could do a green remodel. And the interview turned into like a two-hour discussion where they were fascinated by it.

[00:12:00] And at the end, they said, “Look, what you want to do sounds really cool. And we’re down with that. What do you say you come over here, and you build it here?” I was just a young associate at that point, but I said, “Heck yeah.” I showed up, and they were open. They basically said, “You go do you, Donald. And let’s see what happens.” I quickly found two other attorneys that were quite a bit older than me. One had represented some of the early solar energy companies. Another one had represented food companies that were focused on organics and sustainable agriculture. And we hatched the idea of creating a legal practice group that wasn’t formed around a specific legal practice area but rather around a set of values that was driving entrepreneurs to use business as a vehicle to effectuate positive environmental and social change. And that was the birth of our green business practice group. I got the firm to become certified as a green business because they were willing to go far beyond changing our paper that we ran through the printers to actually changing every aspect of our operations.

[00:13:03] And that’s when things really took off.

John Reed: [00:13:06] We’re familiar currently--it’s been going for a while—of the idea of a practice group, an industry group, right? I don’t think I’ve ever heard of a values group before. That’s kind of mind-blowing. Was there immediate attraction? Did it resonate with the audience you were looking for?

Donald Simon: [00:13:21] For sure. The Bay area had a lot of budding entrepreneurs, you know, that were doing things in the solar industry, organic, fair trade certified products, all kinds of things. The goal of these entrepreneurs is to make a buck but to do so in a way that makes a difference. For them to scale both, they need to bring in outside investments. They need to work with lawyers. They need to play like real businesses, and not surprisingly, a lot of folks that have these values, they don’t exactly look at lawyers with the most affectionate eyes. So, one way to get them to realize that they needed a lawyer was to find lawyers that shared their values.

[00:14:02] And so once we launched this, you know, we got a lot of press out of it. I mean, we got picked up in a newspaper all the way in Australia. And I got a call like, “Hey mate, tell us about your green business certification.” The word got out pretty quick. I did a lot of public speaking, and once these companies saw that I had their values and that I actually knew quite a bit about the substantive issues, they just naturally said, “Well, I want to talk to this guy because he gets it.” And then, “This guy is affiliated with this firm that’s been around a century, and they can help me realize my dreams.”

[00:14:40] The fortunate or unfortunate reality of business in America is that you’re not going to make it and have a company of any consequence unless you do have a relationship with a lawyer because the environment is complex, and you need legal counsel. For me, the satisfaction came from realizing that and knowing that I could help entrepreneurs get that, that might not otherwise get it fast enough to succeed quickly enough to accomplish their twin environmental and economic goals. And so that provided the vehicle and the credibility. You said, “walk the talk.” That was kind of our mantra. Nobody’s going to hire lawyers that are just talking a good game because everybody talks a good game. So, we’ve proved it by what we did and how we changed our own behavior and our own actions, and how we put our money where our mouth was. And then that led to clients coming in and to develop a successful practice.

John Reed: [00:15:34] Let me switch gears here for a minute, and let’s have a little vocabulary lesson. So, let me throw out some terms, and you can walk us through this. So, there’s green business certification. There’s LEED certification. There’s B Corporation, B Corp. And as I mentioned before, there’s CSR and ESG. Now, which of these are in your world, specifically, both your practice and your firm?

Donald Simon: [00:16:00] Let’s start with LEED certification. It’s like a Good Housekeeping Seal of Approval for how your building is designed and constructed. It is a standard that was created by the US Green Building Council, which I got heavily involved with back in the early days and co-founded the Northern California Chapter with a bunch of other great folks. Architects, engineers, contractors, you build your building according to this standard. A third party comes in and verifies the measures you implemented. And depending upon how sustainable your building is, you get a certain number of points that leads to your LEED certification, which is kind of set up almost like the Olympic medals. You get certified. Then the next step up is silver, gold, all the way up to platinum, which is a very green building.

John Reed: [00:16:46] And it sounds like LEED certification is a certification for the property. Whereas green business certification is the certification of the business. Is that fair?

Donald Simon: [00:17:00] Correct. The green business certification started off as just a regional program in the Bay area that the county governments had put together. And just like a LEED certification analyzes the measures you implemented in building your building to determine what level of certification you got, green business certification does the same thing for your business. What measures do you implement? They have a whole checklist that lessen your environmental footprint, show that you’re a better community member with your local community and how you treat your employees. And that certification program that we had at the Bay area, going back to the late 90s, got picked up by some folks that wanted to create a national standard like that. And that’s where the B Corp was born. B Corp looks at the measures you implemented to make your business operate in a way that is both environmentally relevant and that you also are looking out for the interests of other stakeholders, of your employees, your customers, your local community, and the global community.

John Reed: [00:17:59] And just to round out the terms that I used before, you’ve got CSR, which is corporate social responsibility. And then you’ve got ESG, which is, and I can’t believe I blanked on it.

Donald Simon: [00:18:09] ESG stands for environmental, social, and governance. They both are dealing with how is a company engaging around environmental impacts and societal impacts. ESG is the term that’s used more around investing in companies that have these values. If you’re running a business and you’re employing a ton of people in a factory in Midwestern United States, and then you suddenly realized that “Well, gee. With free trade, I could move my factory overseas, pay people a fraction of the labor costs that I pay here.” Well, if you just look at the bottom line and try to get the maximum return for your shareholders, that seems like a no-brainer. You’re going to pick up shop and move elsewhere. And that’s exactly what most of our industrial sector has done over the last 30 years.

[00:18:57] But when you’re looking at ESG, CSR, you look at that decision. You say, “You know what? There’s other impacts of that. It’s going to wipe out this community. All the jobs are going to evaporate. It’s going to perhaps make our customers not as connected to us because they realize we’re just another company that just offshores jobs and took them away from Americans chasing the cheapest labor rates on the planet.”

[00:19:21] So they both get at the same thing of evaluating a company, not just based on how profitable it is, but how does it engage with and take into consideration its impacts upon the community and the environment?

John Reed: [00:19:33] Those latter two though, the CSR and the ESG, those are self-driven. Whereas the first things we talked about, the LEED, the green business, the B Corp, that is a third-party certification.

[00:19:42] So there’s, I’m not gonna say, more credibility to it. They’re credible, but there’s an objective, outside arbiter to make that determination. Is that right?

Donald Simon: [00:19:54] That’s right. That’s right. So, any time you have a third party come in and audit and verify what you did, it necessarily is going to have more credibility because you’ll hear a term out there called “greenwashing.” Lots of companies say lots of things that they’re doing. You can watch the Sunday morning news programs, and you’ll see commercials from Exxon that make you think Exxon actually really cares about their impact on the planet. Well, anybody that’s been around long enough to remember the Valdez incident in Alaska or that pays attention will tell you Exxon could care less about their impact on the planet. They’ve done everything they can to ensure that society doesn’t impose laws that would require them to do so, but they can pay for flashy marketing campaigns to make them look good. And we call that greenwashing. But when you have a third-party come in and analyze and verify what you’re doing, especially against the standard that’s been vetted by a multitude of people, now we actually have a yardstick that we can use to measure performance on these metrics and know whether we can actually believe it.

[00:20:57] There are standards now that are being created and have been that address a multitude of different industrial processes. And that really enables people to know whether what they’re hearing coming out of the mouth of a CEO is true or not. And investors are increasingly wanting to invest in companies that actually show that they are addressing these issues. Because when you do the analysis, you find that companies that run roughshod over environmental conservation and protection, they almost always get into trouble. And they have all kinds of other expenses that they incur. That when you look at the big picture, in almost every instance, the companies have a higher performance on environmental and social issues are more profitable as well. So, there’s a huge drive going on, including with a client I’m working with right now, to bring greater transparency to the environmental and social performance of businesses whose stock is traded on exchanges. Because investors are realizing those are the better-performing stocks, and that’s where I want to put my money.

[00:22:02] But you can’t really identify who’s doing what unless there is some type of valid third-party assessment of what they’re doing and how, so their performance can be quantified. And then capital can be directed towards the companies that are doing a better job so that it creates a virtuous loop where more companies start doing that because they become a more attractive investment for folks.

John Reed: [00:22:23] If I understand it correctly, the B corporation is basically giving the founders, the sponsors, the C-suite, the insulation, the liberty to drive the business in a more socially conscious direction and not defer as much or not give the shareholders as much control. Is that a fair statement, or did I botch that?

Donald Simon: [00:22:45] Let me break it down a little better.

John Reed: [00:22:46] I’m sure you can.

Donald Simon: [00:22:47] Back to the, back to the vocabulary. So, you’ve got a certified B Corp, which any company can go through. You don’t even have to be a corporation, but it is a third-party standard that has a whole list of measures you can implement. And then, based on how many you do and the documentation you submit to prove what you did, you can get the B Corp certification. Our law firm because a certified B Corp, as did others, and that was great. But the problem was, it did not change corporate law.

[00:23:17] Corporate law is a creature of state law, and it was written a hundred years ago, plus when nobody was really envisioning corporations having such an outsized impact on humanity and the planet. And so, corporate law defines the legal duty of those who run the corporation in terms of what’s in the best interest of the shareholders.

[00:23:41] So, the people who run the corporation have a duty to run it in a way that maximizes the benefits for the people who own it. That’s been interpreted in case law to mean maximizing profits. And that’s why you see all these companies doing things that were clearly going to have a horrible effect on the environment and even on the long-term interest of the corporation, but they wrap themselves up with the blanket of saying my fiduciary duty is to maximize profits.

[00:24:09] So there was a realization that we needed to create a different type of corporation. The benefit corporation is an alternative corporate structure that’s on the books in I think like 37 states now, and it redefines the fiduciary duty for companies who choose to organize under that structure, and the fundamental difference is that it creates a statutory permission that says that the directors and officers are to consider the social and environmental impacts of the business’s operations. And if they so choose, they can prioritize those impacts and considerations above profits in any given issue. And so that’s what created the license not only for the people who run companies to consider these things without being attacked with perhaps a breach of fiduciary duty claim but gives them the freedom to prioritize those impacts above profits. And that was a game-changer. The benefit corporation structure provided an alternative pathway where these companies could organize as a benefit corporation, bring in outside investors, and no longer have to fear that those investors are going to take them off task and say, “You have to subjugate impact to profits.” They could still continue with what their founding vision was and yet still bring in investment capital and scale their operations without losing track of their mission.

John Reed: [00:25:33] Let’s take a break. And when we come back, Donald will tell us more about some of the ways he’s grown his practice and fueled his environmental passion. Stay with us.

John Reed: [00:27:30] Donald, I’m often advising attorneys to get involved with industry groups and business associations as a way to expand their networks and showcase their practices and be more visible. You took a different approach. Rather than join existing organizations, you started your own and, actually, more than a few. Maybe you can tell us about them.

Donald Simon: [00:27:50] So a lot of the normal ways that lawyers go off and develop business is, you know, go and speak to other lawyers, speak at your bar association, write a bunch of articles. And I think those are all great. What I found is that most of the time, your audience is other lawyers, and that’s not where most of your business is going to really come from. At least not with what I was wanting to do. And so, what I found is that if you get involved in some organization that does something you care about, and you’re just a volunteer, you quickly find yourself propelled into a position of leadership with the organization, and you find yourself on the board of directors. You’re exposed to people that own or operate businesses, and they have a chance to see how you think, how you follow through on the things you say you’re going to do and, the chance to see whether they like you. When those folks are looking to hire a lawyer, who are they going to call?

[00:28:46] I started a number of organizations around green building to help put in place the pieces we needed to grow that sector. And then I joined some organizations that were already in existence, working with these folks that owned and ran businesses, and they saw those things in me. And so, they pretty quickly decided, you know, I think I like this lawyer better than my current lawyer, or I don’t really have a lawyer that’s doing much for me. This is the guy I want because he’s smart. I like him. And he cares about what I care about. And so, it forged a relationship that went from shared passion to friendship, to lawyer-client relationship. And that’s how I built a lot of my book.

John Reed: [00:29:27] But you say so nonchalantly, “Yeah. I started a couple of organizations.” There’s a lot of lawyers that struggle to join an organization. And so, the motivation to say, “There’s a gap here. There’s an audience that’s not being served. And there’s an opportunity to connect with that audience. I should start an organization.” Was there thought, or it was, or it was just kind of point A to point B, let’s get it done?

Donald Simon: [00:29:50] You know, when I was in law school, and I was trying to figure out what am I going to focus on, I knew it was going to be environmental law. I came up with kind of this simple formula that said, “Okay, where should I focus my time and my energy?” And the conclusion was I should focus it where the need is greatest, but the attention is the least. That’s where I can make the biggest contribution. And in some of these arenas, there were existing organizations that I could get involved in, but oftentimes there were not. So, with green building, it was kind of a new concept.

[00:30:20] There were people that had been doing it for years, but it hadn’t really gained enough traction to go mainstream. And so, as I started getting involved and talking to people. I just networked like you do with most things and figured out, hey, who’s doing this, who’s doing what? We start talking to them. You start realizing where there’s gaps and needs.

[00:30:40] And as those conversations continued, there was just a realization that, “You know what, guys? We’ve got to create something.” And we started the groups that we needed to prime the pump, so to speak. Looking back, it doesn’t seem like it was anything revolutionary. It was just the outgrowth of wanting to accomplish something, having a passionate commitment to it, engaging with others who thought the same way, and then bringing my lawyer problem-solving skillset to the situation to help in conjunction with others, to identify what was needed and then executing.

John Reed: [00:31:12] This phrase, and I’m going to elevate it to” mantra” or “philosophy”: focus attention where the need is greatest and where the public attention is the least. Where else do you use that in your practice? It’s a very powerful statement, and I’m wondering how you embed it in your approach to client service?

Donald Simon: [00:31:31] I worked with the folks who started the B Corp certification. They identified this need that we needed to have a different corporate structure. They came out to California. They’d worked with another lawyer out here that they tried unsuccessfully in the past to change corporate law, to broaden the definition of fiduciary duty, to encompass these things. The bill failed, and they wanted to take another run, and so they met with me, that lawyer, and a third lawyer. And so, the three of us, with another lawyer out of Philadelphia who had already come up with this benefit corporation structure as a different type of corporate entity that could be adopted into state law, we took that, modified it based on our collective experience, and then we championed the effort to get it passed and adopted in California.

[00:32:18] I knew there was a need for that because I’d seen my clients grow their green businesses with bringing in investors, some of whom were funds, that then the fund said, “You gotta dial back the sustainability impact here because I need to see quicker, higher profits.” And that was a bad outcome. And we needed something different. And so, it was just a volunteer effort. Put a ton of energy into helping get this law passed. And then once we got it passed and got the governor to sign it, then I spent probably the next five, six years and still to this day, restructuring companies. Became a corporate lawyer basically, restructuring companies to be benefit corporations, and then writing these governing principles into their corporate documents. And then business loves to copy success. And so, as you did it for some businesses and others wanted to follow suit, and that’s been a huge chunk of my practice pretty much since 2012 since the law was passed and put on the books.

John Reed: [00:33:20] You’re also trying to drive policy. You are working at the statutory level, the regulatory level, to change things. It obviously ties in with where you were when you graduated from law school, but I’m wondering how much of your practice that is now.

Donald Simon: [00:33:35] It’s varied over the years. It’s not a ton of it right now, but you cannot engage on environmental issues without, at some point, getting involved in the political process or the regulatory process.

[00:33:47] And so over the years, especially back when my attention was really focused on the green building movement, there’s some things that I was engaged to do by clients. To be honest, most of it was just what I knew needed to be done, and I didn’t have a client to pay for it. So, it was a lot of pro bono. And a lot of this has involved a ton of pro bono work. But it’s pro bono work that has led to my book of business. It’s not a one-to-one correlation, so it may not be the best if your goal is just to do business development and that’s it, and your goals are not driven by any passion or change you want to make in the world, then I can’t say that this is going to be the best path. But if you want to try to find ways to blend your passion with your profession, it’s been a hell of a path for me.

[00:34:36] When California adopted its climate change law, back in 05, 06, I had an idea because of what I knew with green building that I wanted to promote buildings as a way to reduce carbon emissions by a financial instrument that would pay building owners and developers to reduce the energy consumption of their buildings, by enabling them to monetize that greenhouse gas reduction they achieve and sell it into the carbon markets. And so, I was engaged by various industry groups and nonprofits to advance that concept. I came up with an idea of a green building carbon credit, pitched it to the state and some other agencies, and it didn’t work. They didn’t go for it. It was just a little bit ahead of its time, and it may actually be adopted in the years to come. But that was one example. And of course, getting the benefit corporation law passed on the books so that could be an option for companies to organize under was another engagement with the political process.

[00:35:40] And then there’s been a number of other situations where we’ve engaged to promote solar energy policy and then there’s been a number of other things that I’ve not yet figured out a way to connect to my legal business, but there are things that I’m passionate about. And back to that equation of where’s the need greatest and the current attention the least, that’s where I’m focusing on some other issues that may or may not turn into legal work. But you don’t hit a home run on every time at-bat. So, it doesn’t need to.

John Reed: [00:36:14] Well, I’m going to coin a phrase, and you can use it. What you engaged in was strategic pro bono. It wasn’t reactive. It was--wait, are you ready? You’re ready. “Proactive bono.” Proactive bono. See what I did there? No, and not to be overly clever here, most people think of pro bono as if it’s practice of law without money. What strikes me is you were doing something that was the right thing to do, that made sense. But if you were successful in effectuating that change, it would draw business to you. People would want to take advantage of the change that you effectuated, whether it’s new policy on the books or whatever. That’s pretty forward-thinking stuff.

Donald Simon: [00:36:56] I would say that most lawyers are not very happy with what they’re doing. The career is not as rewarding as it used to be. The comradery is not as present as it used to be. Especially if you’re working in a big legal market, like a big city. It’s just not what it was when I started, and that’s a bummer.

[00:37:13] I’ve probably spoken to at least 150 people that were contemplating going to law school. They ask whether they should do it or not. And I’ve talked to a ton of lawyers that are figuring out, you know, is this what I should stay in? And the thing I tell people is there’s the benefit of getting a career that can be financially rewarding, intellectually stimulating, and making a decent income, but what people forget too often is that lawyers are trained to change the system because they learn how the system operates. And the biggest skill set we acquire through school and our practice is problem-solving. Look at a problem, figure out how to solve it. Come up with some creative solutions to it. Well, those are the same skill sets that are needed to solve any problem in the world. And so, what I tell people is my engagement on social and environmental issues where I’ve just gotten involved and said, “Hey, I’m going to go help with this.” And sometimes, there’s something that would connect to my work as a lawyer, either immediately or fortuitously down the road, sometimes not.

[00:38:22] But what I found in every single instance is that I was able to help move the ball down the field because of those skills we have as a lawyer. And I will tell you that nothing in my life has been more rewarding to me than taking those skills, applying them to something that I cared about because then I could make a difference.

[00:38:40] And yes, most of the time it was pro bono, I wasn’t getting paid, but you know what, it fed my soul, and it made me happy, and it made me look at what I was able to do and see it as something that I could make a contribution. I get to make a difference for something I care about. And I get to create a book of business, helping people doing something I care about.

John Reed: [00:39:01] So well said. The way you’ve tied in satisfaction and fulfillment and good work is really great.

[00:39:07] Before we wrap up, I want to touch on a sensitive topic. I want to express my sincerest condolences on the loss your alma mater suffered at the feet of the Michigan Wolverines. I’m sure that really stings. A lot. Like a lot, like a big old festering wound.

Donald Simon: [00:39:27] Hey, you can’t win every game. And so, I figured, you know, Michigan was due. Winning one game a decade or so? Give them that. You’ve got to keep things interesting with folks, even your bitter rival.

John Reed: [00:39:37] Exactly, exactly. Donald. It was a lot of fun to talk with you today. I appreciate the education on green building, on B corps, on benefit corps, on you. And frankly, for giving me a little bit more hope about saving the planet.

[00:39:53] We will be sure to provide links to you and your organizations on our website so our listeners can learn more about you and your efforts. But thanks for being our guest today. I really appreciate it.

Donald Simon: [00:40:04] My pleasure and thanks for bringing up stories that help people realize ways that lawyers can have a better career and make a difference. We’ve got power, and we just need to go out there and use it because the world needs us. Find something you care about, plug yourself in, and you’re going to be a much happier person for doing so.

John Reed: [00:40:22] Agreed. Well, thank you again. I appreciate it.

Donald Simon: [00:40:24] Thank you. I appreciate it myself.

John Reed: [00:40:26] Hey, today’s show is a milestone for us. It’s episode number 20. Now, we’re working on new episodes for 2022 with new sticky lawyers. But I want to give a special shout out of gratitude to my colleagues, the ever-present and ever silent Maureen Hanawalt, who masterfully produces every episode, and to Ann Wagner, our podcast editor extraordinaire. And we couldn’t do any of this without the talents of recording engineer Mark Pastoria and the fine folks and even finer studio at Startup Nation.

[00:40:58] If you haven’t already, please subscribe to Sticky Lawyers wherever you get your podcasts and give us a rating or leave us a review. Also visit stickylawyers.com to see episode transcripts, get information about our guests, and recommend a standout attorney who might be a future guest.

[00:41:13] Until next time, I’m John Reed, and you’ve been listening to Sticky Lawyers.