14 Lessons for in-house counsel from the GC evidence at the Post Office Horizon Inquiry
The evidence of General Counsel Susan Chrichton in the Post Office Horizon Inquiry this week is a salutary tale for all in-house counsel. I set out below the key lessons that scream out, to the purpose of supporting every in-house lawyer to sharpen their awareness and shore up their strength in role.
However distant the Post Office Horizon Scandal may seem from most in-house lawyers’ day to day work, the rule of law is present in every single decision made, document considered, and action taken or omitted. This is not personal to specific lawyers at the centre of an appalling miscarriage of justice. It is in truth about the environments in which lawyers work in-house, and the governance and support they need around them to be able to not only do their job well, but to meet their regulatory and societal duties, every single day. There, save for the grace of our practices - go all of us.
Regulatory and professional support for in-house lawyers is woefully lacking, on which a number of GCs and others have been raising the alarm for some time. Addressing this is absolutely essential. However, these lessons from the Scandal represent what GCs and other in-house lawyers can be doing right now to make a meaningful dent in the conduct and culture that surround them and or that may meet them at significant moments down the line.
This is equally relevant to boards, bosses, regulated professionals and their stakeholders everywhere.
The Lessons
Without table format, which is inaccessible for some:
The Lessons
1 - Lawyer first, everything else second
When they read out in court the year you were called to the roll or to the bar, they wont care whether your client wanted you to be ‘commercial’ first and a lawyer second. They’ll hold you as a lawyer first, second and third, with all associated standards applied in full.
2 - Advise your actual client
If you know or suspect something is not right, tell the entire top board of your client organisation. Don’t take any single person as a proxy for the whole, even (and particularly) the CEO.
3 - Say it clearly, in writing
Say what you have to say clearly, from the perspective of the organisation and all its stakeholders. Spell it out unequivocally not euphemistically. Conversations are not enough. Share it in writing. Keep records.
4 - Intervene early
Step in early, don’t wait and see. The longer things drift the more slippery the slope becomes. You will be held to a proactive not reactive standard in addressing risk.
5 - Signal boundaries
Allow no doubt about your role and regulatory boundaries. Optics of you as a fixer undermine your leadership and legal position and allows impossible tension to build up. This is not about not being commercial, highly trusted or giving brilliantly business-contextual advice. Those are fundamental, just not at the expense of independence.
6 - Build governance
Back yourself with governance. Include job scope and regulatory duties and disclosures in your employment contract. Secure insurance and legal costs coverage. Underpin your mandate with a board vote for appointment and termination. Get a reporting line to the senior independent director. Ensure risk audits and reporting.
7 - Work with NEDs
Build relationships with the board, particularly the non-executive directors. Don’t wait til you need it. Embed communication channels. Utilise best practice guidance.
8 - Check facts
Ignorance of the law and of technology, provide no defence. If you have the licence to practice and the title to match, it’s your responsibility to know. Check the facts. Verify what people tell you. Keep going until you understand.
9 - Avoid fake confidence
There is no legal comfort in ‘how things are done here’. If it feels wrong it’s probably wrong. If it doesn’t make sense, it’s probably wrong. If it’s wrong on your watch, you need to change it.
10 - Avoid overload
Being too busy to do your job is not an option. Giving concerns insufficient attention is not an option. Having no space to think broadly is not an option. Make sure you are properly resourced. Take care with ‘double-hatting’. Deal quickly with conflicts and overwhelm. Recognition for saying yes will be worth nothing when the fault is on you.
11 - Assume it’s on you
If you see it, it’s on you. If you should have seen it, it’s on you. If you’re cc’d, it’s on you. If you write part, the whole is on you. When it comes to illegality, there is no such thing as ringfencing to ‘your section’ of the paper or practice. Duty of care and complicity are law, as is professional independence and responsibility.
12 - Your team is you
Whoever reports through to you is your team, hand picked, inherited or interim; whatever their area of specialism. If they are not up to the job that’s your responsibility at all points in time with little to no grace period. Their competence - or not - is your competence.
13 - Understand the limits of privilege
Understand and respect the law and limits of privilege. Know that the fact of your presence does not assure it and that it blocks whistleblowing protection. Assume everything will eventually be public.
14 - Get support
Whether or not the board, colleagues or regulator have your back or you have access to personal advisors, there is a strong community of GCs and other in-house counsel out there standing ready to support each other. We do not need to do it isolated and alone. Make contact and you will be held.