IN-HOUSE TOM: Ethical pressure, chilling fear & breathtaking acquiescence

I’m writing a book with the working title: IN-HOUSE TOM: a new target operating model for law departments – initially as a series of blogs.

You can follow the full index of the blogs as they build here: IN-HOUSE TOM: INDEX

Chapter 1.4 Ethical pressure, chilling fear & breathtaking acquiescence

The third, of seven weaknesses, in the current in-house target operating model is the vulnerability of in-house lawyers to ethical pressure, the fear that this generates and, for me at least as a “non-lawyer”, the breathtaking acquiescence with which this beating is absorbed by the profession.

“Ethical pressure” and “chilling fear” are not my words.

In “Mapping the Moral Compass” report published by the UCL Centre for Ethics and Law in 2016 as part of its Ethical Leadership for In-House Layers Initiative the headline findings included:

  • 10–15% experienced elevated ethical pressure;
  • 30–40% sometimes experienced ethical pressure;

The authors note that “…a number of our interviewees suffered exposure to what the following interviewee termed the “shouty man syndrome”. IHL24 wraps up, rather nicely, the desire to be seen to be adding value, to not being a deal blocker, as a “helpful’ part of the team:

The problem we face is what I call the “shouty man syndrome”, which it doesn’t matter how much we agree this is the right way to go, if you’ve got a client, an internal stakeholder, shouting at you to get something done because it’s urgent and you just don’t understand why legal is being so difficult? You end up defaulting to all too often being helpful even though long-term that’s the wrong answer. [IHL24]” (In-House Lawyers’ Ethics Ibid page 67)

Professor Stephen Mayson, in his Interim Independent Legal Services Regulation Review Report (2019) deals with in-house lawyers in Section 5.8 on page 70.

The section is notable as much for its implicit commentary on the current context in which in-house counsel operate as it is for its specific proposals and questions regarding changes in regulations.

“These are not simply private or commercial matters. As we have seen recently, corporate failures can lead to consumer and societal detriment, and in-house lawyers have to be able to sound alarm bells without the chilling effect of potential reprisal. The public interest in effective and fearless legal representation is engaged in much the same way as it is with private practice.”

That said, I required neither the Moral Compass Report nor Professor Mason’s Interim Report to convince me of the vulnerability of in-house lawyers.

In my leadership consulting practice in which I have worked with hundreds of house lawyers over 15 years I witnessed corporate brutality mercilessly dealt out to in-house lawyers at close quarters.

Not that I did’t witness, or experience, corporate brutality meted out to “non-lawyers” in my 15 or so years in corporate roles. I did.

The difference is that society has come to expect, at times, appalling behaviour towards “non-lawyers” by bosses with low EQ but it does not expect, nor is it fully aware, that Officers of the Court are routinely “bludgeoned” by the C-Suite. Bludgeoned is my word.

None of this is a surprise and I suspect, at this stage, many in-house readers will be sniffling a yawn. Heard it all before, mate. Plus ça change, as the say on the in-house conference circuit.

It’s this breathtaking acquiescence by the profession that I hope will cause some a-typical in-house lawyers, with higher than normal EQ, to pause and apply their razor sharp intellects and high IQ to the implications of this acquiescence.

Typical lawyers, bless them, will continue to think that just because the water around them doesn’t appear to have changed temperature, much, that it will never boil.

But the societal waters are warming around them and one day lawyers will wake up because, and just as Mr Weinstein has landed in jail because people came together to say “enough it enough”, a high profile business bully will “go down” for “doing in” a GC.

When it happens, remember where you heard it first.

Ciarán Fenton

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