“Do you expect me to talk?”
“No, Mr Bond, I expect you to die.”
A few days ago, I wrote about the Post Office scandal: https://www.lbcwisecounsel.com/resources/articles/article/resigning-is-not-enough/#.YMPSLKhKhPY
I made clear my view that resigning is not enough, but some people have rightly challenged me to say what I feel would be enough.
I have been asked, for example, if lawyers should become whistle-blowers. I think this is problematic for the vast majority of situations, but I do not rule it out entirely.
Some people have asked if I think there should be more regulation. Even if that might help, it is clearly contentious and would be a divisive debate. To be honest, if our current professional conduct frame was respected more (frankly even, known about more) there is enough guidance to help us. I also believe there is enough goodwill and wisdom in the profession to sort this out now without more regulation.
In this blog I set out some modest steps for every in-house lawyer to consider. My points are suggested for debate. I am not saying I am right, I am just asking that we engage with the issues and address them. We must come at our responsibilities not as if we are the indignant accused, but as custodians of a great profession that society needs to be an exemplar of leadership.
My hope is that we can look at proportionate and pragmatic ideas that will help save us from falling into difficult places, rather than how we punish or write despairing blogs when some inevitably will fall.
Contract of Employment
The contract of employment for every employed lawyer should explicitly reference their professional rules of conduct and state that the employer will honour, respect and facilitate the lawyer’s obligation to comply with their rules of conduct.
No lawyer should be remunerated in such a way that it will likely cause any reasonable person to question their independence or the motives for their advice. Where there is a Remuneration Committee I think it would be prudent for this body to set the General Counsel’s salary and incentives.
Scope and Resource Reporting
The General Counsel should report to the Audit Committee annually on the scope of their role and especially if there are things which are not in scope for the resources at their disposal. The General Counsel’s report should explicitly confirm that they do have the resources necessary to discharge the work that is within the scope of their role.
Access to the Non-Executive Directors
The General Counsel should meet routinely in private with all non-executive directors to discuss her work priorities, risk and reputation, including any instances where she believes there is inappropriate ethical pressure.
The combination of too few resources, overbearing management pressure and inexperience is a theoretical but significant conduct risk. We should calibrate it, monitor it and report on it. We may not like doing so, or consider that it is incredibly remote, but we do not like floods, fire, terrorism and cyber attacks either, and they might also be incredibly remote. I am only asking that it is considered a risk, not that the General Counsel is a risk. When an organisation today considers its risk of cyber attack, it does not turn a blind eye because it might upset the IT Director.
An outgoing General Counsel, no matter the circumstances of their departure, should meet with the Chair and other Non-Executive Directors when leaving the organisation. I would also welcome the newly appointed General Counsel meeting the Chair and Non-Executive Directors shortly after their appointment for an initial and in-depth briefing on the Board’s and the General Counsel’s expectations.
Seeking allies not isolation.
In many companies and institutions there are multiple governance roles – The General Counsel, Compliance, Co-Sec, Risk, Audit (etc). This should be a group that can consider, reflect and challenge. We should encourage these people to do so, a collective and coordinated endeavour, not silos of good intentions.
My closing thought for this blog is that ethical pressure is often only obvious in hindsight. However, this must not be our excuse to do nothing now. Instead we must make it our incentive to be thoughtful and creative and to use our brilliant brains to ensure we do not have to look back in despair, but that we look forward with pride in what we stand for and how we do it. We are not James Bond, and we do not have to be, if we work on this together.
Take care. Paul xx