The ‘counsel’ in ‘general counsel’

General counsel can and should be valuable members of the organizations they serve. To add to the complexity, general counsel often have multiple roles within the organization spanning different countries and businesses.

General counsel can be asked for all kinds of advice — some legal, some business and some ‘off-the-record,’ personal questions from co-workers. This blending of roles and responsibilities creates a very challenging ethical landscape for which there is a shortage of clear guidance.

Have you ever been working away at your desk on the company’s legal matters and, all of a sudden, a senior executive (a non-lawyer) happens to knock on your door and say, “Can I ask you something?” Your gut instantly tells you from the look on their face that the question is not related to company business and likely a personal legal question.

They will talk about anything and everything, all the way from their personal family law matters, how they lent someone money and it wasn’t returned, rental disputes and wills and estates litigation as a result of their grandmother not leaving a will and I will gladly listen.

I always try to make it a practice to direct them to a lawyer from the particular practice area or just let them know that, “sorry, I cannot advise you, I work for the company.” Most of the time, they look at me with confusion and say, “Well, what do you mean you can’t advise me; you’re a lawyer aren’t you?”

It is paramount that in-house counsel reiterate the ‘who is my client?’ rule and to whom your duties are owed. Often, in-house lawyers can get themselves in trouble if they do not separate themselves from co-workers’ personal legal issues and focus on the company. The in-house lawyer’s paramount duty is owed to the company. There is no duty owed to co-workers.

There are many facets to this; most importantly: practice insurance.

Generally, practice insurance only insures in-house counsel for the advice they are giving to their sole client, the corporation. LawPRO generally exempts in-house counsel from paying any premium for practice insurance if serving an in-house role. However, if in-house counsel wish to carry on a private, part-time practice, they may do so and seek additional insurance for private, part-time practice under this rider. So, generally, if you do not have the relevant insurance coverage, my advice would be not to counsel co-workers in estate litigation.

Second, most general counsel are experts in their corporate fields with specialized areas of practice such as insurance, retail or food distribution and probably have little or no experience in estate litigation. Thus, trying to do a co-worker a favour by helping review their affidavit for an estate litigation matter might not be the most logical approach.

As much as I was willing to occasionally go to court or write a demand letter for a couple of co-workers earlier in my career, I’ve realized that there are a few issues with this: I’ve been concerned about how much work I did for that employee while arguably on the clock with my employer and also realized that doing work for an employee could muddy the waters quickly if a corporate legal issue involving that employee were ever to mature.

I always did such work externally on a pro bono basis, but my experience has led me to make that a very rare occurrence now. Because I do enjoy giving back to the private bar, I’d rather give back by volunteering my time at Pro Bono Ontario or through Legal Aid Ontario.