General Counsels have the unenviable role of balancing the needs and wants of the ‘client’ with the requirements of SRA Principles and the need to supervise and support their team. In “Mapping the Moral Compass” (pdf), a study conducted by Richard Moorhead et al at UCL, it was found that of 400 respondents:
- Close to 50% agreed that actions were sometimes taken against their advice on legally important matters
- 30% said an emphasis on commercial awareness sometimes inhibits the in-house lawyer in performing his or her role
- 9% indicated that saying ‘no’ to the organisation was to be avoided, even when there is no legally acceptable alternative to suggest
- For 65%, achieving what their organisation wants has to be their main prioirity
- 12% said where commercial desirability and legal professional judgment are in tension, commercial desirability is more important
- 7% never discussed professional ethics issues with colleagues internally or externally, formally or informally
We all know that in some cases this balancing act does not always work.
So how can General Counsels avoid these pitfalls? Here are some suggestions:
- Clarify the client’s needs and expectations of its legal team and ensure this is communicated effectively throughout the organisation. This can for example take the form of a “General Counsel’s Charter” or “Legal Department Charter” which could be agreed with the Board.
- Educate your organisation’s directors and officers about the professional obligations of its legal team. The Charter is a starting point for this, but you can also add it to a Service Level Agreement or other document.
- Ensure your team is aware of the Dos and Don’ts of the Legal Team.
- Be aware of ‘framing’ of legal issues by the client. This can affect your approach to the issue,e g where you are asked to ensure your advice is ‘commercial’ or ‘creative’. Try to remove those framings and look at the whole picture even if this extends beyond the scope of instruction.
- Be equally aware of multiple approaches by the client to different members of your team with the same issue, seeking the ‘desired’ answer. Develop procedures for centrally logging queries and the advice given to ensure consistency.
- Be clear about business, legal and moral issues. Actively consider any conflicts and how you should prioritise between them.
- Ensure independence. Try and caution against biases whether towards your client, your team or individuals. Be objective.
- Consider the structure of your team and ensure effective support of all members including:
- Guarding against undue client pressure;
- Mentoring junior lawyers to ensure they understand their role;
- Having clear reporting lines, training and appraisals to facilitate the raising of concerns;
- Specifically including ethics in your induction, training and professional development programmes.
- Remember the SRA Principles, which we have summarised for you.
- In particular:
- Your duty is to the client, namely the organisation and not its individual directors/officers;
- In the event of any conflict of the SRA Principles, you must prioritise the upholding of the rule of law and the administration of justice.
At Just Lawyers we are well aware of the difficulties of achieving the right balance with these competing demands. Please use this site for resources and support to help you in that aim. Please also feel free to contribute to the site.
We hope to work with the Mapping the Moral Compass team to explore the issues facing in-house lawyers further, and to provide practical tools for in-house lawyers as the Just Lawyers website develops.
For more discussion see: