Internal conflicts of ‘clients’

How should an in house lawyer approach internal conflict?

Often as in-house lawyers we will be faced with situations where there is a potential conflict between what the business wants to do and what is the right thing to do. In these situations I take the following approach:

If something is obviously a breach of the law or there is clear dishonesty, then I will refuse to endorse it and I will escalate to the appropriate level to ensure that it does not happen. There is the potential that this could expose me to pressure from business colleagues, but I see this as a matter of personal and professional integrity which is non-negotiable.

However, more commonly I will be faced with situations which are not clear breaches of the law but there is a risk that potentially they may be. In these situations I would firstly explore with my business colleagues to understand their overall objective and see if a business proposal can be adapted in such a way that the legal risk is reduced. If this is not possible, then I see my duty as ensuring that all relevant stakeholders, including if necessary senior legal and business management, are made aware of the situation and that they are informed of the legal risks. I would then expect to have a discussion with all concerned in an open and transparent environment to ensure that everybody is able freely to share their views on what decision should be taken. As part of this discussion I would ensure the legal risks are highlighted and I would also make a clear recommendation as to what decision I think should be taken. Once the team has taken a decision, even if that is against the legal advice, then then it is important that everybody including the lawyer accepts that decision and deals with any potential future negative consequences. If there are negative consequences we cannot have a culture of “I told you so”, as that undermines trust.

After an engagement where there has been a difference of opinion as to the approach, it is useful to have a learning loop to explore alternatives for next time.

It is important that junior lawyers are supported in their role and are not exposed to undue pressure to give advice they feel uncomfortable about. For further discussion on how General Counsel can balance the needs and wants of their ‘client’ with those of their legal team, see Leadership and the Moral Compass.

Contributed by an in-house legal counsel

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