It is clear that in-house lawyers now play pivotal and influential roles in the corporate world. In his blog, Ben Heineman recently noted: “The general counsel, not the senior partner in the law firm, is now often the go-to counsellor for the chief executive and the board on law, ethics, public policy, corporate citizenship, and country and geopolitical risk. The general counsel is now a core member of the top management team and offers advice not just on law and related matters but helps shape discussion and debate about business issues. Because ‘business in society’ issues pose so much risk (and in some cases opportunity), the general counsel is viewed in many companies as having the same stature as the chief financial officer. Company legal departments are staffed not just by broad generalists but by outstanding specialists in all the areas covered by private firms, including litigation, tax, trade, mergers and acquisitions, labour and employment, intellectual property, environmental law.”
As significant influencers in the corporate world, in-house lawyers exercise power as they shape the direction and decisions of their organizations. They are important sources of lucrative work and are thus courted by — and influential to a degree within — the private practice bar. However, as important as in-house lawyers are in the business world and as clients, it is equally clear in Canada, and it’s safe to say in the rest of the world, that the role in-house lawyers play within their own profession remains that of second-class citizen — of not quite a “real lawyer.”
In my last column, I stated that as in-house lawyers we must be glad for the high standards to which we (like our private practice counterparts) are held by the rules of professional conduct for lawyers. The standards not only preserve our status as legal professionals, they provide much-needed guidance and support. Since writing that column, I have given thought to the crucial nature of a strong culture of professionalism to the in-house bar and to what has to happen to bolster and perpetuate such a culture.
In the minefield that is often our day-to-day existence, in-house counsel must have access to a full kit of tools to ensure we know what the right thing is and that our colleagues and our organizations get the right advice to do those right things. Do we have the tools we need to support that culture of professionalism? In my view, the answer is no.
The best and easiest way for in-house lawyers to maintain a culture of professionalism is to build on the extensive work the private bar has done in the areas of ethics and professional responsibility. It is important for both private practitioners and the in-house bar to remain professionally connected. We are all lawyers. However, the in-house bar cannot continue to rely on the private bar to set the rules and establish guidelines seen as necessary from the private bar perspective.
Globally, there is great focus on how our organizations and businesses do what they do and in-house counsel play a key role in ensuring organizations and businesses do it in a legally and ethically acceptable way. To play this very difficult role, in-house lawyers need support and resources beyond substantive legal training. We need rules of professional responsibility for in-house counsel, we need guidelines for in-house counsel, we need ongoing discussion among our peers — and all of this must be part of an iterative process that has the rules, guidelines, and discussion keeping pace with best practices in organizational governance.
There has to be recognition that the milieu within which in-house practitioners work is different from the milieu of the private practice bar and this different milieu demands different tools and education.
Currently, the in-house bar in Canada is a subset of the private bar and this is clearly not good enough to ensure we have the tools we need. If it were good enough, we would already have them. There are many areas of commonality between the in-house and private bars, but many in which the private bar has a completely different perspective. Rules of professional responsibility applicable to in-house lawyers must be considered purely from the perspective of in-house counsel.
Areas that should be looked at from an in-house perspective are: conflict of interest, privilege, and outside counsel fees.
Another area ripe for consideration is how in-house counsel are marketed to by their fellow lawyers. There is a lot of money spent on events, legal education, and awards. Right now regulation of what a lawyer can and cannot accept is left to the ethics policies of the organizations in which in-house lawyers work, but surely the in-house profession should agree on what’s appropriate for the in-house lawyer to accept.
Imagine a world in which our decisions to hire outside legal counsel were based (as they properly should be) on expertise and cost, not on relationships built at free continuing legal education seminars or wine-tasting, sports, or other events — events all of us currently attend.
There are also areas of commonality shared by in-house lawyers and not by their external counterparts — ethical situations unique to the in-house role, client management, external counsel management, and managing a global or multi-jurisdictional practice are examples. These — and many other areas like them — are matters that only an “in-house only” set of rules of professional responsibility could properly address.
Trevor Faure, in his book, The Smarter Legal Model: more from less, says “the role of the corporate lawyer could be the pivotal and most important role in modern business. This, at least, is its potential.” I agree.
There are many individual in-house counsel who achieve that potential. So, how does the in-house bar secure sufficient status within the legal community to ensure its needs are addressed and it can have the influence it needs to start creating the tools necessary to support the lawyers playing these pivotal roles?
If any of chief legal officers from large organizations are reading this column, I want to be very clear that I’m thinking about real and sustained influence — not the sort of pandering or special one-off treatment that a big legal budget secures from external firms. And I would like to see more large organization CLOs doing more for the in-house profession in the areas I’m discussing in this column.
Here’s what I’d like to see:
1. More focus on the in-house counsel bar within the law societies and a different role for in-house counsel within bar associations (still inextricably linked in at least one province — New Brunswick).
2. I’d like to see law schools start focusing more on preparing lawyers for the in-house practice of law.
In my next two columns, I will be looking more closely at these issues with the hopes of convincing some of you to become more active advocates for the in-house profession in Canada and globally. I don’t want the in-house bar just to be keeping up with the Joneses — I’d like to see in-house lawyers set their own standards.