Ken Fredeen on navigating ethical dilemmas in-house
This advice column is intended to support you as you tackle ethical and professional issues. Submit your questions anonymously here.
QUESTION: I’m a GC of an organization with hundreds of employees. I have cultivated relationships throughout the organization, which helps in all aspects of my work. The downside of this is that I often have employees asking me for things: sometimes, legal advice and, sometimes, to witness or commission a document. I know I can’t give legal advice, but you have probably been in situations where the employee presses. It’s even harder when it’s a senior colleague. How do you handle this?
FREDEEN: I love this question because, clearly, you are taking the time to connect and know the business and the people involved in your business. No ivory tower for you! Also, the question asked here tells me that you have built trusted relationships with your work colleagues at all levels. Clearly, you have your “finger on the pulse” of your organization, which is so valuable for a general counsel. Congratulations!
The ethical dilemma you pose is manageable and, in my opinion, identifies a real need that our organizations and our people have: access to justice. It might at times be inconvenient and take some of your valuable time, but there is, in fact, a great upside. Let me explain.
In my nearly 40 years in-house, there was probably not a week that went by when I was not asked for help on something related to the law. These questions crossed the legal spectrum, from criminal law to dispute resolution to family law and everything in between. Clearly, the starting point is the one you identified: I can’t give you legal advice. But that should just be the start of a conversation.
So often, people don’t know where to begin and are afraid of getting into a legal vortex. As generalists with experience, we should be able to help. Recently, a colleague contacted me about a situation their teenage son found himself in with a boss who accused him (without evidence) of theft. Although there were external lawyers in my network who could help, we spoke about options and what scenarios could unfold. He and his son worked things out without escalation and the cost associated with retaining a lawyer.
Now, there may be some who disagree with me, but I have found that helping colleagues solve or navigate personal legal issues is not only a nice thing to do but an important thing for us to do. We have the legal experience that they do not, and engaging with them is a small but important indicator of the value we provide.
So, how do we approach this? In addition to starting with the qualification that we cannot provide legal advice to them, we can listen to them, ask questions that will be important for their decision on what to do and draw from personal experience. We forget how complex the law is for people not around it every day.
We have limited time, of course, and you mention that this happens often, so I have learned where I needed to draw the line and direct them to external legal resources. If there is a common theme to the issues raised with you, you might want to be proactive and develop something in writing on your internal web page.
As part of my role as general counsel, I knew that these questions would arise, so I developed relationships with lawyers in these areas so that I could recommend a small panel (such as family, criminal, estate or commercial litigators) from which my colleagues could choose. This might seem like a lot of work, but it wasn’t, and the value you provide to your colleagues is immense.
We have limited time. We are careful not to step over the line as they are not our clients, but I think it is a mistake for in-house lawyers to simply say: “Sorry, I can’t help you.” For me, it was about building relationships, showing value and providing access to justice for people who needed help.
In closing, I would like to recognize my co-author, Cheryl Foy, who is tied up on the launch of her book: An Introduction to University Governance. Well done, my friend!
