I’m currently working with a wide range of in-house lawyers as leaders. Some are from large and mature organisations. Others are from small rapidly growing x-techs with impressively talented young CEO/Founders. Several are from medium-sized organisations.
While I have worked with hundreds of in-house lawyers over the last 15 years I’ve never seen a more dangerous time for them, as individuals, than now. The profession is sleepwalking nakedly into the public spotlight, unprepared. They’re in for a public kicking the likes of which they’ve never experienced.
This time bomb has been ticking for some time and there are three clues that it’s about to explode:
First, The Solicitors Regulation Authority has recently launched a Thematic Risk Review into in-house lawyers. This is the regulatory equivalent of a siren with flashing red lights and a klaxon.
Why, after years of behaving as if in-house didn’t exist as a large and rapidly growing segment of the profession with unaddressed issues, has it now suddenly taken action?
What incentive does it have, suddenly, in abandoning its long-held steadfast position that a) it doesn’t interfere with the business employers of lawyers b) in-house lawyers can and should whistleblow and if they don’t then that’s not the SRA’s responsibility and c) theIr worst kept secret, that it believes that private practice is in-house’s back-stop and it is heavily regulated already? The answer lies in the two other reasons.
Second, the rule of law and the role of lawyers in upholding the rule of law is in the news and is staying stubbornly in the headlines. The furore over legal advice to oligarchs, for example, reached the floor of the House of Commons.
The high stakes legal opinion-shopping by the government on triggering Article 16 of The Northern Ireland Protocol is attracting public attention. The public know that governments have legal advisors. They are meant to be the good guys. If legal advice is publicly perceived to be shorn of its independence in matters which affect ordinary people then the public will sit up and take notice.
Third, the Post Office Scandal which involves serious questions about the behaviour of lawyers including in-house lawyers did cost lives and that story has captured the public’s attention. The Williams Inquiry into the Scandal reports at the end of this year. That report may well detonate the time bomb.
In my experience the degree to which each in-house lawyer can act with independence varies considerably depending on the context.
One said to me – unusually – that they were able to insist on an amendment to their employment contract to take account of their SRA obligations. Another, on the other hand, said that not standing up to the business in all cases had become the norm. The latter is ubiquitous.
One IHL expressed concerns about the impact on young lawyers of a culture of passivity in the profession. “If that’s what they learn as young lawyers in-house, it doesn’t augur well for the profession, does it?” they say.
The use of out-of-house opinion has also come up as a significant issue: some IHLs feel compelled to use outside counsel’s opinion when they are perfectly capable of providing advice without it. Why? The answer is that many IHLs have lost their independent voice within the business to such an extent that they feel the need for cover from outside. This is bad for them, bad for the business and bad for the future of the profession. I propose three ways in which in-house lawyers can manage these personal risks:
First, they might consider asking for an amendment to their employment contracts noting their SRA obligations.
Second they might consider asking for a reporting line to the Chair or SID not just as a protection for them but as a protection for the business.
Third they might start using the word practice more often in their work. They are regulated independent professional services firms on legs selling their services to the business for cash and soft benefits.
They practice law. They, particularly young and inexperienced in-house lawyers exposed to high reputational risks, might remind themselves and the business regularly that practicing law independently is their primary purpose.
A time will come when the people who encouraged them to be “business people first, lawyers second…business partners, not blockers and to do more for less” won’t be seen for dust.
Then, if you are an in-house lawyer, you will be on your own sunshine. And the people who will lash in the boot first will be your legal peers. Just wait and see who kicks first after The Williams Inquiry.
Better still, don’t wait.