In-house lawyers and their moral compass: true north or magnetic interference?

The long-known tensions faced by in-house lawyers between serving their employer and staying true to their professional obligations receive some tough probing in research published today – with fascinating insights.  To what extent is the ethical imperative or ‘moral compass’ of in-house lawyers affected by their personal characteristics and by the overt, subliminal or cultural influences within their client-employer organisation?  The short answer is that it is affected, by many influences, contexts and drivers, and to varying extents.  As the lead author, Professor Richard Moorhead, says, the research report provides “as rich a picture of what it means to be an ethical in-house lawyer as has ever been attempted”.  A summary is available, and the full report can be downloaded here.

Evidence of the tension in in-house legal practice is perhaps most acute in the finding that almost 50% of respondents agreed that actions were sometimes taken in their organisations that were against their advice on legally important matters.  More than a third also agreed that loopholes in the law should be identified that benefit their employers.  These and other findings raise interesting and important questions about the extent to which lawyers’ professional codes are being diligently applied by in-house lawyers.  It might also perhaps prompt one to wonder ‘where were the lawyers?’ when various corporate scandals were being perpetrated….

The research forms the first part of the Ethical Leadership for In-house Lawyers Project, led by Professor Richard Moorhead at the Centre for Ethics and Law at University College London.  With help from Dr Cristina Godinho at UCL’s Centre for Behaviour Change, Dr Steven Vaughan of Birmingham Law School’s Centre for Professional Education and Research, and Paul Gilbert of LBC Wise Counsel (and a former general counsel), and a bit-part contribution from me, the Project surveyed around 400 in-house lawyers working in the commercial, public and third sectors.

The Project explores how attitudes to professional ethics are shaped by: individual and team conceptions of the role of in-house lawyers; professional principles and codes of conduct; and the ‘ethical infrastructure’, pressure and relationships within the employing organisation.  Somewhat disturbingly, the research finds a general weakness of ethical infrastructure within in-house teams, with disappointing levels of (and attitudes towards) training, guidance, appraisal and discussion.  It also found that clients’ interests were more often prioritised above the principles of integrity and effectiveness; and these in turn were prioritised more than the principles of independence and legality.  This order of priorities is not consistent with the approach required under professional codes of conduct.

Correspondingly – and more positively – the research also found that those in-house lawyers who prioritised their obligations in a way that is more consistent with their professional codes were the most ‘ethically inclined’ of the respondents and they had a more rounded view of their professional obligations.  There certainly appears to be scope for re-balancing the commercial (or client-delivery) focus of in-house lawyers with greater attention to independence, professional principles and ethical integrity.

The research also found that ethicality is associated with both individual and professional notions of the in-house role, as well as with team orientations and the broader organisational environment: in other words, it is both an individual and systemic phenomenon.  This cautions against a view of professional ethics – described in the report as “complacent and dangerous” – that relies too much on a lawyer being the ‘right sort’ of individual.  Individuals, organisational systems, and culture mesh together in different ways to increase or reduce ethical risk.

Part I of this Project has lifted the lid on the ethical compass of in-house lawyers.  It has found evidence of both ‘true north’ ethical practice as well as ‘magnetic interference’.  It has provided a rich seam of material to explore with the in-house community (and for them to engage in an honest and open evaluation of their own attitudes, practices and cultures).  Despite some instances of disappointing or disconcerting responses, the report also provides evidence of, and affirms, ethical in-house practice.  Later stages of the Project are intended to result in a white paper setting out some ideas about how best to structure the in-house role, and manage in-house legal functions, for ethical practice.  Progress updates will be available at the ELIHLS site.

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