Sam Schwisberg suggests setting up a fund to economically support lawyers facing ethical challenges
Over the course of a 40-year career, Sam Schwisberg has come to the conclusion that in-house counsel are in a vulnerable economic and ethical position, and he thinks there should be some consideration for offering them more support.
“I’ve given this a lot of thought over time and the fact is, as an in-house counsel you’re completely dependent on your employer, as we all are when we have jobs,” he says. “Anybody can be faced with a situation where their personal values may not be consistent with what their employer is doing. But it’s particularly difficult as a lawyer because we have certain professional obligations above and beyond what a normal employee would. For example, we’re supposed to be ethical gatekeepers.”
Schwisberg has spent time contemplating the vulnerabilities of in-house counsels and the pressure put on them, partly because of a situation he experienced in which a breakdown of trust occurred between an employer and its legal team—a team that included Schwisberg. In fact, it was such an acrimonious situation that it ended up in court as the employer accused the in-house counsel of conspiracy, among other things.
“You have to be extraordinarily careful as a lawyer to watch for [ethical conflicts or conflicts of interest] that may not be immediately apparent,” he says. “Moreso as an in-house counsel than an external counsel. As an external counsel, even though it may be hard, especially if it’s a good client, you have more flexibility to say ‘no, I’m not doing that’ because you have other clients on whom you economically depend. But when your sole source of income is the person—and I’m speaking of the corporate person—with whom you are dealing and giving advice to, it makes the pressure greater because you have to fight against your own economic self-interest to do what you think is right. And that makes for a very stressful situation.”
Currently, Schwisberg’s employment situation is much more balanced. He is serving as a part-time in-house counsel for a company he likes, he’s working part-time in private practice at Talarico & Schwisberg, and is teaching a law course at Carleton University. He has multiple points of income, making him feel more secure.
Even disregarding the litigious employer, Schwisberg says that there have been other occasions where he has had to weigh his commitment to his employer against his ethical obligations as a lawyer.
“I remember one occasion when I was a controlled-goods officer for a corporation” he says. “When you’re a controlled-goods officer, you have an obligation to report when there has been a non-compliance under the regulation, and it suddenly dawned on me, when I was putting together a report, that this conflicted with my duty of solicitor-client privilege as in-house counsel.”
Given the pressures Schwisberg believes in-house counsel face, he would like to see some additional support from law societies—specifically financial support. He suggests that the Law Society of Ontario start up a fund for lawyers who are dismissed by their employers as a result of sticking to their ethical obligations and conducting themselves in an ethical manner.
“There’s a parallel: a compensation fund for clients who get ripped off of their trust funds by unethical lawyers. There could potentially be a fund which could be generated by in-house counsels paying a little extra [law society membership] fee, that would assist lawyers to help them navigate through difficult ethical situations and be able to have a bit more of a spine, knowing that this fund is behind them, assuming they get the law society on-side in advance,” he says.
While he is floating the idea as a starting point for a discussion regarding the challenges of working in-house, Schwisberg adds there are other questions that are worth considering as well. One of them is who should have authority over managing the in-house counsel or the legal department.
“Should you be reporting to the board of directors instead of the CEO?” Schwisberg asks. “Should an in-house counsel have language in their contract stating that adhering to legal principles isn’t grounds for dismissal?”
He says: “I think the ethical challenges are potentially greater now than before, as in-house counsel are becoming increasingly enmeshed in the business objectives of the organization.”
