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A Call For Change : In-house Lawyers Need Support Not Dickensian Damnation

A call for change : In-house lawyers need support not Dickensian damnation

“It is a pleasant world we live in, sir, a very pleasant world. There are bad people in it, Mr. Richard, but if there were no bad people, there would be no good lawyers.” Charles Dickens, The Old Curiosity Shop

The in-house legal profession has been in the news a lot recently, some good, some bad, some tarring the names of lawyers, some shining a well-deserved light on the support needed. 

Earlier this month, the chair of the Justice Committee, Sir Bob Neill KC,  wrote a letter to the Lord Chancellor in response to the Committee’s examination of legal professions regulations and this was one of the recommendations:

‘We would encourage the Law Society and the SRA to take a proactive approach to the needs of the in-house lawyers and to demonstrate that they understand the challenges they face at present.’

This comes in the wake of General Counsels asking for more support for some years now but the issue has gained traction recently partly due to the ongoing Post Office Horizon Scandal, especially as the world watches Susan Crichton, former PO GC speak to the inquiry. In the summary of Sir Bob Neill KC’s aforementioned letter to the Lord Chancellor, it writes ‘The Post Office Horizon Scandal will inevitably have damaged the public’s perception of the legal professions.1’ 

This current media attention on in-house lawyers, and especially GCs, balances upon a fine line between the condemnation of lawyers and the opening of a window, allowing us to look inside the complicated needs, pressures and benefits that come alongside in-house law. 

An in-house legal team finds itself at the centre of large corporation scandals because the risk essentially falls upon them. It is their job to monitor risk and guide the company to ethical and lawful decisions. The GC is sometimes placed under pressure by the company to move against the law and then faces a very difficult decision. The SRA recently conducted a report from which they found that ‘while many respondents felt demands from colleagues was their biggest pressure, most felt able to affirm they must take an ethical course of action.2’ However, these encouraging findings have provoked a reaction among the GC community because they are not reflective of the true situation. Chris Mackinnon, Co-founder of Mack Legal Consulting, argues that:

“GCs need to have a strong relationship with the CEO, however it is also important that GCs are able to still act independently to protect the rule of law. The challenge comes when GCs do not have a seat at the table and if the company is operating unethically and/or illegally and they cannot promptly bring about a change in such practices, then they have no option but to have the courage to resign”

One way to aid this is for GC’s to have an additional reporting line to the board so that they can bring controversial issues to them without prior consent from the CEO. Another consideration is to provide adequate training, especially for the growing population of junior in-house lawyers, to equip and prepare them for these ethically challenging situations where lawyers must choose the right thing over their livelihood.

In worse case scenarios, GCs are confronted with a choice: lose one’s integrity or work in antithesis to the company for which one works. Yet, not all companies function in this way, in fact there are so many wonderful companies out there who want to work closely with the legal team. For the value of in-house lawyers, heads of legals and GCs can be found and bears most fruitful when the company and legal department work in symbiosis rather than antithesis. Claire Sharp, co-founder of Mack Legal, believes a core issue with this industry is a lack of understanding about this mutual relationship:

“A GC is a strategic business lawyer, going far beyond the black and white letter of the law. The position is highly commercial. GCs need to have complete visibility of the business to fully understand business risk at every juncture, guiding and advising to ensure business growth is attained in conjunction with legal specifications that if not known or heard may put business and their people at risk. To enable this to happen, GCs need to have a voice that is heard, acknowledged and supported as a key member of the board.” 

Failures such as the Post Office Horizon Scandal remind us of the importance of giving GCs an uncensored, clear voice of authority and of allowing them a seat at the table. There are other challenges ahead for in-house, such as technological evolutions and an ever-shifting global market, but our expertise as Directors of an In-house legal consultancy remains in this nuanced territory of understanding the benefits of in-house, the pressures, the expectations, the challenges and primarily this evolving relationship between enterprise and legal who work much better when they work together.

Gone are the days of Dickens and so the narratives that evolve from large corporation scandals and legal acknowledgements should no longer rely on the tired caricature of the evil lawyer. It is high time that the Justice Committee recognises the challenges faced by in-house and we hope that this is the start of a new positive curve in a sector where we recognise so much potential.

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