In-house lawyers - a bell has been sounded
Things move through phases. In the startup world, there is a time when an early stage venture needs to mature - to build infrastructure and get serious about where it is going. Societal movements experience the same. Those inflection moments bring an opportunity to pause and make some decisions. This is such a moment for the working group I have been leading on in-house independence.
The work to date has been fast and informal. We have worked off the side of our desks, bootstrapping time, tech and toil. This has been effective, but it doesn’t scale. Nor does the driving by a few without the many. The next phase of work must be something we want and do together as a profession, with infrastructure proportionate to its importance.
It is time therefore to pause, to make space for what comes after. The initial work is complete.
THE PATH TO THIS POINT
To provide context, the in-house working group arose out of a need in March 2023 for a collective complaint to the Solicitors Regulation Authority, the leading regulator of UK lawyers. The SRA had undertaken a thematic risk review into the in-house legal environment. Their conclusions misrepresented the reality for many if not most in-house lawyers, as well as their own survey data, which (even if under-reported) showed that one in ten experience pressure to compromise their regulatory duties, 64% do not raise those duties with their employer-clients, and many have inadequate board support. It presented things as peachy in the garden - ‘encouraging’ to use the chief executive’s words - when they are not. I was appalled - at the depiction and the missed opportunity. The missed opportunity, that is, to wrap some critical evaluation, governance and support around the challenging reality that is the current environment in which in-house lawyers operate and the societal implications of that reality.
Alongside a number of other General Counsel who follow this context closely and care deeply about the role of in-house lawyering in business and society, I wrote a public response to the SRA’s review and we worked that up together. In short order and with little corralling we had 33 signatures and we published the complaint online at speed.
This was the first time to my awareness that in-house lawyers had made such a move and spoken publicly together about the reality of their world and the professional and ethical pressures they come under, particularly to their regulator. That reality involves navigating the inherent tension that exists between advising in the best interests of their client, and the duty to remain independent, in service of the rule of law and administration of justice, for society. When your client is also your employer, with all the influences that entails, how do you navigate that tension - that potential conflict?
This is a topic cyclically raised alongside corporate scandals and by academics, but it had not been a topic even on the industry conference circuit or something the profession had come together on publicly. There is much also but separately to say about why that was.
Interest grew and people wanted to contribute, including those who were not GCs and those who were not in-house lawyers. The passion was telling. We followed with a quick spreadsheet of anonymised scenarios crowd sourced from the now larger group, to give the SRA deep insight into the reality they were avoiding, but that we knew they had been told by contributors to the thematic review. These scenarios are front page news level stories that will never be published - stories involving attempted cover ups, criminality and systemic abuse, and the regulatory conflict they implicate. The scenarios were comparable with stories privately shared and experienced within the GC community over many years. They were not a surprise, save for their intricacy and commonalities, as well as the human story they drove home. Not all lawyers in-house experience pressure to facilitate or turn a blind eye to such illegality but many do experience that pressure, at varying degrees. Private practice colleagues, recruiters, non-executive directors and others see this happen. If you can’t influence your employer-client towards responsible action, the current choice is to capitulate or resign, which is a poor choice for everyone, including society when you apply that lens, as regulators are obliged to do.
What followed was a period of discourse. Inadequately with the SRA who have still not publicly acknowledged the group complaint and the seriousness of the situation (though they are actioning elements and now have a virtual reference group in place for ongoing engagement with the in-house community) and richly within the group. A range of topics, views and experiences came to the fore. Around the nature of the GC role and the purpose of being an in-house lawyer. Around proper governance, who actually is the client, how to institute ethics without negating shared responsibility, the features of different environments such as government versus corporate, and standards of practice and the tools that support that. People shared their pain, their frustrations and their suggestions. There was agreement and disagreement, and different camps on different topics. Some talked too much. Some felt unheard. Some felt overwhelmed by the volume or that their position was too unpopular to participate. Everyone had a view.
We subsequently wrote to the corporate governance regulator, seeing that they were consulting on the Corporate Code. With group members leading the drafting, we highlighted the opportunity to strengthen corporate governance by codifying the engagement by boards with their General Counsel alongside the Company Secretary, particularly in relation to risk mitigation and the criticality of that in responsible business. This hit a ‘this makes sense’ nerve and the final group response to the FRC was submitted with 92 signatories, despite a short deadline and many more not being able to sign due to corporate approval processes. Supporting responses were submitted by the law firm Mishcon de Reya and a number of legal services regulators. It was fantastic to see that leadership and support.
THE CALL FOR MATURITY
The call for stronger governance externally gave rise to a call within the group for its own governance, if it was to continue on a more than an ad hoc basis. I asked leadership consultant Ciarán Fenton to support with this, by facilitating a process to help the group agree its purpose, strategy and behaviour - PSB as he terms it. What was astounding about this process was how raw the discussion was with this group of highly professional people, with tears and feeling and criticality, as well as the strength of will to proceed and the positivity at the possibilities ahead together.
After debate, the group came to a purpose statement that is about enabling in-house lawyers to serve the best interests of their employer clients while meeting their duties to the rule of law and administration of justice. There were more rousing statements proposed that didn’t quite capture the tension that caused us to come together. There were more stark statements that focused only on harm that needs addressing. The statement as it stands is a compromise that may need strengthening, but is a platform to build upon, with huge thanks to Ciarán for that support.
Since the purpose is about ‘enabling’, the strategy is about doing so - creating an environment in which in-house lawyers can serve their clients and meet their regulatory duties without being in harm’s way. The behaviour plan - the activities - will necessarily flow from that. For example, as called for in the group: defining the GC role and the language we use around it, continued engagement with regulators and industry bodies, awareness raising with the NED, CEO and investor community, establishing standards around governance, and providing support for lawyers in crisis e.g. via 360 mentoring between volunteer GCs, which has already been trialed. The 360 mentoring support is a build on an initiative run by Ciarán Fenton a number of years ago which he aptly called #lawyersbacks.
WHERE TO FROM HERE
What happens next is significant. It must honour the hugeness of the situation before us and the steps that have been taken to here. We are talking here about the very nature of in-house lawyering and what business and society need from the profession for the coming decades. We are talking about leadership and governance environments in companies and institutions worldwide. This is not to prejudge or overstate the outcomes of the next phase of work, but to frame the seriousness of the topic and its potential impact.
This is not something to tackle off the side of the desk when the day job is critical and consuming. It cannot be done at the individual or informal level. Nor is it something GCs can deliver alone. This is a subject for wholesale evaluation, and if we choose it, systemic change. This can be incremental, but its depth and breadth should not be underestimated. Nor is it suggested that everything current is bad or broken. The call for change has been demonstrated, but it is not yet itself wide and deep. Systemic change needs collective buy in, shared leadership and an engine to deliver it. Without those things, not necessarily in that order, attempts to advance will be weak or will not endure.
Which brings us to a pause.
It is incredible what has been achieved in a foundational phase of work by a small cohort of the more than 35,000 that make up the in-house profession. An indication of the latent power. A shift has occurred in our narrative, our collaboration and care for each other, and in the way we are viewed. We sounded a bell and it can’t be unrung. A debate is now underway and powerful people are paying attention.
To move on from here requires an engine of delivery. This means an organisation of some form, with funding and resource. The establishment of an Institute of In-house Lawyers has been proposed in the group. This could be scoped and delivered through a collaboration of in-house lawyers, law firms and existing industry bodies/groups: those who see the need and the value.
What happens next is for all of us: for the profession as a whole, not only for a few within it. It may take some time for the conversation to coalesce from here. The initiative to substantive action may go on the collective back burner. Or things may happen more quickly, for example if external events force change or the ethics zeitgeist seizes the wider community. That is all part of the process.
At this natural juncture, then - this inflection point as the initiating work is complete - I step back into our ranks to be one of the many we are. I will no longer drive the initiative forward. I have views to share alongside others in support, and remain present in full to contribute to whether and how we tackle the issues and opportunities at hand, simply without being in any driving seat.
There are many things individuals can initiate but true and enduring advancement needs us all. So it’s over to you, over to the profession, over to all of us, for what comes next, now the bell has been sounded.
The nature and independence of lawyering is a topic of our time and one that will continue to present itself for our attention until we address it in full, for ourselves and the organisations and society we serve.