Do the right thing

A recent blog posting by Paul Gilbert, about the role of General Counsel, has so many points with which IP Draughts agrees that this blog posting will simply highlight and comment on a few of them. Please read it in full at https://www.lbcwisecounsel.com/2024/06/22/post-office-some-thoughts-on-the-role-of-general-counsel/

Paul’s immediate prompt for writing is the evidence of several general counsel (GC) to the Post Office Horizon IT Inquiry. The Inquiry has been live-streamed on YouTube, and IP Draughts has also been following it. It is easy, and comforting, to say that those GCs are bad apples, and that most lawyers have higher ethical standards. But as Paul says:

The Post Office had three General Counsels in a row (THREE) who could and should have done their jobs better. Each one made terrible mistakes that sent hundreds of people into misery and kept them in misery for decades. It is shaming for all us. I just don’t buy that three (THREE) terrible General Counsel in a row is bad luck or coincidence, thereby giving the rest of us a free pass. The Post Office is not unique in the way it treats its in-house legal teams…

Paul goes on to identify ten working situations in which YOU are a risk, no matter how ethical you think you are. Two of these particularly struck a chord with IP Draughts:

1. If you celebrate only victories, and do not celebrate doing the right thing, whether you win or lose, then YOU are a risk.
2. If you are unsure if your client employer understands the limits of what you can do within your professional duties, then YOU are a risk.

Paul warns readers that he is going to be sweary. In the following quote, IP Draughts has expurgated the swear words, though he thinks they are entirely justified. In discussing the role of a General Counsel, he writes:

As a General Counsel you are NOT consigliere to the CEO, you are NOT the superstar business partner, you are NOT the head of the “we don’t say no” chorus, and you are NOT balancing legal and commercial risks like some f****** juggling Delphic oracle. You are a LAWYER. F****** behave like one.

The final quote that IP Draughts will give from Paul’s much longer and passionate article is his conclusion:

Every General Counsel and every aspiring General Counsel must put down their “I would never do that” string of pearls, invite proper scrutiny, accept that what we do now might not be good enough and that we all need to be better. Above all, we must be the lawyers society needs us to be, not the lawyers our here-today-gone-tomorrow executive colleagues want us to be.

Paul’s article prompts several thoughts for IP Draughts, including the following:

1. We must change. The Post Office scandal must be a catalyst for change, including increased focus on the role of the in-house lawyer, what it means to be ethical when working for a commercial employer, and what support the profession should give to in-house lawyers.
2. Whose support? IP Draughts is not sure where this support will come from.  As a Law Society Council member, he would like to think it will be the Law Society (TLS) as the representative body for solicitors in England and Wales, that will provide it. However, he has concerns that TLS is insufficiently focused on in-house lawyers, and doesn’t really understand them or their needs. Specifically: (a) when you reflect on the number of in-house lawyers in the profession (at least 25% of all solicitors, and growing), the number of representatives on the Council is tiny, compared with the number of representatives working in traditional areas such as conveyancing; (b) IP Draughts’ impression is that TLS staff are similarly lacking in experience or understanding of in-house solicitors; (c) the pace of change within the Law Society is very slow; and (d) in recent years, partly but not only as a result of the transfer of regulatory functions to the SRA, TLS has not focused sufficiently on ethical issues and on taking a leadership role in telling solicitors what they should not do. IP Draughts keeps wondering whether it is better to keep all solicitors under the umbrella of one representative body, or whether it would better promote the interests of in-house and commercial solicitors, as well as the interests of justice, to have a separate national body to represent them. He has not yet reach a conclusion on this point, and would be interested to hear readers’ views.
3. What support? Wherever this necessary support comes from, it should have several elements, including: (a) educating in-house lawyers on what their profession expects from them; (b) educating employers on what they should, and should not, expect from their in-house lawyers, including their GCs, in the 21st century; and (c) preparing written materials, training courses and other media to support the above. IP Draughts wonders whether it would be helpful to have some legislation to restrict the use of the GC title and to set out a GC’s legal responsibilities, not least so that employers can’t claim ignorance of the independent role that GCs must fulfil.

None of this will be foolproof. There will always be lawyers who sail too close to any ethical boundary that the profession sets. There will always be employers who are indifferent to their in-house lawyers’ ethical concerns, and who try to push them in a different direction (and dismiss them if they are insufficiently compliant). There will always be work-arounds, such as hiring lawyers and giving them ambiguous job titles such as Vice President of Legal and Commercial. Or hiring lawyers who are regulated in another jurisdiction, where a blind eye is turned to in-house lawyers’ roles in corporate shenanigans.

These difficulties are not reasons to give up trying. Reinforcing the ethical role of English solicitors will help to support the UK’s economic interests, as a high-quality place to do business, and a high-quality jurisdiction for commercial disputes.