The world now knows the pressures General Counsel and other in-house counsel can be under in their roles, to put the interests of their employer clients above their professional and regulatory duties.
The world now knows the importance of General Counsel not capitulating to that pressure.
Live streamed and in front of a public gallery, under questioning from King’s Counsel, in the presence of a room full of legal professionals, a high court judge as Inquiry Chair, and sub-post masters who have suffered incalculable harm at the hands of corporate misconduct, it was not possible for Paula Vennells to do anything but confirm that she would not expect her General Counsel to trade her professional duties to do the bidding of the company. This is despite what she wrote to the contrary in evidence.
We saw a file note expressing the view of Alice Perkins, the former Chair of the Post Office Board, that it was ‘astonishing’ for a lawyer to seek to remain independent from ‘key stakeholders’ and not massage an external investigation. That this position was expressed as uncommon in the civil service is something that itself should be headline news. We will see any augmented perspective shared when the Chair is cross examined later in this phase of the Inquiry.
What the CEO and Board expected of their GC has become of central relevance to the Inquiry, along with their treatment of her. In one widely derided example, the Board refused the General Counsel access to the boardroom to present a key report relating to the safety of Horizon prosecutions, leaving her sitting outside ‘like a naughty school girl’.
This is a heavy governance company environment, owned by government, with experienced directors. And yet the pressure, the behaviour, the expectations and the treatment will be recognised by in-house lawyers across the world, in public listed, private company, third sector and public authority contexts. As outlined by 33 General Counsel in a complaint to the Solicitors Regulation Authority last year, these are not uncommon dynamics.
So the question turns to:
Do CEOs and Boards understand the professional and regulatory duties of their General Counsel - of integrity, independence, the rule of law and administration of justice?
Do they respect those duties and support their counsel in the fulfilment of them, understanding they underpin value in the organisation?
Do they have processes in place for handling conflicts with grace when they inevitably arise?
Or do they assert pressure of the direct and indirect kind and seek to avoid the responsibility of addressing conflict head on?
Since the answers are clearly in doubt, it is time to put them beyond it.
The call is there for all those with remit and influence over our corporate and institutional communities to issue simple instruction on the facts. This includes the Financial Reporting Council, the Department for Business and Trade, the Institute of Directors, the Confederation of British Industry, director and non-executive director networks and their legal advisors.
The facts are simple:
Lawyers have professional and regulatory duties with which they must abide.
Directors must understand and respect those duties.
Boards must ensure proper governance to assure this.
It is in the interests of their organisation, its stakeholders and society to do so.
The universal guidance can be as simple as the facts, and its universal application is required now.
