The Post Office Scandal has created some amazing lawyer heroes (thank goodness) but also, depressingly, far too many lawyer villains.
I don’t imagine that many lawyers set out to be villains, but the Post Office Scandal has seen a spectacular cluster of them congregate like thirsty wildebeest at a desert spring.
Perhaps finding so many lawyers supporting one terrible client is just a “blue moon” event, but my head and heart tell me that these lawyers were not just unlucky to find that their terrible client would drag them down as well. My hunch is that terrible clients (especially terrible clients with deep pockets) will always find lawyers to work for them, and unless the lawyers are very, VERY careful, terrible clients and terrible lawyering adds up to something more than just correlation.
Of course, the lawyers may not be terrible people and they may not be terrible lawyers all of the time, but the Post Office Scandal has revealed countless ways for lawyers to be awful. Nearly every abject example of the Post Office’s incompetence, casual processes, gaping individual inadequacy, tranquilised empathy and the relentless Orwellian denial of what stared back at them in the face (painstakingly laid bare in the Post Office Inquiry) have most of the Post Office lawyers firmly holding the wrong end of the history stick.
I will save my thoughts on the barristers and law firms acting for the Post Office for another day; but for now I want to focus on the in-house lawyers and especially the General Counsel.
This may get ranty, there will be swearing, for there are bees inhabiting my bonnet.
First bee – the legal profession (rightly) fiercely protects the use of the word “solicitor”. There are clear rules and they are enforced, but the profession seemingly does not care so much (at all?) for who uses the words “General Counsel”. There is no minimum level of experience, expertise, or additional training or certification that are required. It is an untethered title that effectively allows anyone who is an in-house lawyer to describe their role as being a “General Counsel”. Have we silently acquiesced in this rank casualness? In too many instances the title “General Counsel” is little more than a vanity label to cheer up a dull CV.
Why does this matter? Because if those of us who have been lawyers, or who are lawyers today, do not care who can call themselves a General Counsel, why should boards, shareholders or colleagues invest seriously in what it means either, or (worse) treat the role as little more than a functional expedient to make life easier now that “their” lawyer is conveniently parked down the corridor?
Second bee – what is the purpose of a General Counsel? It should be an easy question to answer, but the waffling drivel spouted in magazine interviews and on conference platforms is no longer just a bit irritating to people like me, it has become toxic and dangerous. 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 fucking juggling Delphic oracle. You are a LAWYER. Fucking behave like one.
Third bee – in the last 25 years whenever I have written or spoken about ethics I get a lot of back channel feedback that I must not tar everyone with the same brush and that the rare bad apple is not a reason to create more rules or bureaucracy that would make the role even harder. The typical commentary is that General Counsel are good people, doing their best and need to be understood, not criticised. This is fair, up to a point, but I was never talking about bad apples, I was talking about us. You and me, and our all too obvious human frailties. 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 and so, as I have written before, I say again now:
If you work with less resource than you need, then YOU are a risk.
If you work when you are exhausted, intimidated or angry, then YOU are a risk.
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.
If you are not familiar with your own ethical rules and how they are currently interpreted, then YOU are a risk.
If you assume your colleagues are doing the right thing without knowing that they are, then YOU are a risk.
If you celebrate only victories, and do not celebrate doing the right thing, whether you win or lose, then YOU are a risk.
If you say or do anything behind the cloak of legal professional privilege that would embarrass you, or your employer in a court, inquiry or if ultimately published, then YOU are a risk.
If the financial incentives you have accepted alter the way you behave, then YOU are a risk.
If your reputation is dependent on a result, then YOU are a risk.
If you do not know or care how your advice or recommendations are being used by your employer, then YOU are a risk.
Please don’t hide from this and argue that you are a good person trying your best. Being a General Counsel (I know) is one of the hardest roles to fulfil well. You will need support and you deserve support, but you also have to own your responsibility to learn from the mistakes of others.
The fashion for in-house lawyers, for a generation or more, has been to deliberately underplay their role as officers of the court and to overplay the need to be the uncomplaining, commercial facilitators of whatever is wanted as long as it is not illegal. This is not just a corrupting mindset, it is lazy, unthinking, self-regarding and above all, it is NOT YOUR JOB.
We are better than this. Society needs us to be better than this. I ask you please to be an inspiration for the next generation of lawyers to know that by following your example, they will become an example for others to follow too.
Fourth bee – let’s talk about Privilege cos the clue is in the name. If you roll a shitty argument in the glitter of privilege, you still have a shitty argument. Covering every document with your legal invisibility cloak doesn’t give you a free pass to be a co-conspirator. You have a unique responsibility when you use it. It should never be seen as merely routine or tactical; it is something that forces you, literally, to act independently and to care more about doing the right thing than your self-interested client employer ever will. It is a privilege to have such power and we should hold it like our careers depend on it.
Fifth and final bee – your role is not to assert your client’s power regardless of the consequences for your opponent, but to hold your client’s power in check so that you first serve the interests of justice. You are a governance counter-weight, not some sugared up cheerleader for whatever your client employer wants to do in the name of growth, brand protection, reputation management, or just because you can… Three General Counsels in a row got it wrong at the Post Office. This was not bad luck. It is not unique. We have been warned by their stories and now it is time to reclaim this role, own it, and behave like it matters.
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.
Take care. Paul xx
