Dear General Counsel,
Please forgive my impertinence in writing to you this evening.
I would like to draw your attention to a report by Professor Stephen Mayson entitled “Reforming Legal Services Regulation – Beyond the echo chamber.”
Professor Mayson’s report is an extraordinary endeavour and commendable for many reasons. It has been meticulously researched, it is comprehensive and very accessible. It marks a point in time of great change for our country and notes the significant and constant change in the legal profession. I commend it to you if you care at all about our profession and its standing in our society.
I will not comment in this letter on the wider implications of the changes we see today, but I do want to comment on your world.
I am, and always have been, someone who cares deeply for the world you work in. The world of the in-house lawyer. If you do nothing else with the report please read the section that applies directly to you, from Page 147.
Let me be clear, I am not advocating that in-house lawyers should be subject to new or additional regulation. In part this is because I do not believe the SRA or the Law Society have an appetite at this time for further regulation. In part I suspect you do not think it is necessary either.
The SRA, the Law Society and you might be right, but you might not be.
I do not ask you to justify your views, but I do ask you to reflect as a leader in our great profession on what it means to be a lawyer today. What does it mean in your world to act with integrity, with independence, in the client’s best interests and to uphold the rule of law and the administration of justice?
In your reflections would you please ask of yourself to search answers to these questions:
- What are the transparent and accountable competencies needed to be appointed to the role of General Counsel? Are there any minimum qualifying competencies or qualifying experience or qualifications needed? Should not one of the great offices of corporate governance have a meaningful qualifying standard?
- How would you judge your independence? How would anyone else judge your independence? What accountability do you owe to the owners of your business to act independently?
- In what sense do you uphold the rule of law and the administration of justice. When your company comes under the most intense scrutiny or threat, at what stage does expedient governance become something that is permissible on your watch?
- How do you know that your amazing colleagues share your view of how to interpret the cherished principles of being a lawyer?
- In a world that has been tipped upside down, how do your ethical boundaries guide you? How would we know?
I do not mean for any of this to sound like criticism. The view from the boundary is not the same as facing the bowler. You have my respect. However, it is because I care about you that I ask these questions. It is because I care about you that I would like you to feel supported by our regulatory frame and not inconvenienced by it.
I have five suggestions I would like you to consider. None of them are about more regulation for you or your team or your business:
- Regardless of your reporting line, should you not have regular private meetings with the senior independent director of your Board to discuss governance, accountability and ethical pressure?
- Should you not commit to regular discussions with your team, and provide them with some training, on their professional and ethical responsibilities? Should there not be a clear and consistent understanding of how you, as General Counsel, interpret these principles?
- Should you not report to the Chair of your Board any instances in which you feel anyone in your team has come under unacceptable ethical pressure?
- Should you not seek to have an outside mentor who can both challenge and support you in what is often said to be a lonely, pressured role? At this time especially, is it not even more obviously essential to have a reliable sounding board for any concerns you may have?
- What are your boundaries? What if you are bullied or your colleagues are bullied? What small misdemeanours by executive colleagues do you forgive? At what level of personal financial dependence on salary, bonus or shares are you starting to feel uncomfortable about your independence? How do you protect yourself and your team?
You can be on the team and still do these things. You are not being precious or other-worldly, you do not lack commerciality. You are not somehow locking yourself into an ivory tower if you care about what it means to be a lawyer. You are not diminished by wanting to uphold the highest possible standards of professional care and duty.
You can still be in the room.
I want you to be in the room. An amazing contributor, a wise and brilliant lawyer, a respected business colleague.
On this basis your team want you to be in the room.
On this basis the owners of your business should want you to be in the room.
Your profession wants you to be in the room.
Our Society needs you to be in the room.