What should we expect of the most senior lawyer employed in a business, or charity, or public institution in the UK?

She is called Jane and she is a thoroughly decent, hardworking lawyer. She is professional, kind and respected by her colleagues. Jane is of course her employer’s lawyer, and her job is to work for her employer’s best interests. However, in a very significant way Jane also works for us.

You might have views on the types of business Jane works for and you may not especially like that it could be an arms manufacturer, or a Saudi wealth fund, or a business about to open new coal mines, or one which has great relations with government officials in China. However, this makes it even more important for us that Jane can do her job well.

Jane’s duty is to do her best for those who pay her wages, but she must also do so in the context of her wider professional responsibilities. These duties include acting with integrity, with independence and Jane must always act in a way that upholds the constitutional principle of the rule of law and the proper administration of justice.

Jane is not representing my conscience, and I do not need her to reflect my liberal sensibilities, but I do want her to do her job brilliantly because it means we have someone on the inside who we know must honour her duties as a regulated lawyer. We are very lucky to have her and the reassurance this brings that the rule of law and the administration of justice are cornerstones of each lawyer’s role. In effect Jane is working for us too.

Does this mean Jane can always stop her employers from doing dumb things? No, but it certainly means that anything which looks illegal should be something that she is across, and it should be her final say whether it is legal or not. If the employer decides in good faith to do something that turns out to be illegal, then Jane cannot deny it happened or try to cover it up.

More sceptical readers may wonder if Jane can also use her training and ingenuity to find elaborate ways to avoid complying with inconvenient regulations. In my view, empathically, NO. The ice on that particular frozen pond is far too thin for a lawyer like Jane to skate on.

Jane is therefore a vital cog in the governance gears of each and every company that employs her. The protection this affords, is for us too.

However, what if the organisation that employs Jane is not a great place to work? What if her newly appointed Chief Executive doesn’t like her, so he drops her from his direct reports and then from the executive committee; and he asks her to find costs savings by reducing her team from ten to six. Let’s also suppose that Jane’s partner has just been made redundant, and Jane has been to see her GP who says she is low and risks burnout, and now her dear old mum has been diagnosed with dementia.

To say the least, Jane is no longer in a supportive environment and her personal life is obviously fragile. She is incredibly vulnerable and any ethical pressure coming from her employer now will feel heightened and more uncomfortable, and she may not even be in the room to have her say.

This is not about whether Jane is about to act unethically, but it is about whether Jane can be at her best, and we should all want her to be at her best. I wouldn’t want an exhausted, over-burdened and bullied surgeon to operate on me, and I don’t want Jane to feel alone, disheartened and unsupported either.

Jane is a strong and resilient soul with an exemplary career; we might hope therefore that the regulator would want to help her. However, if she takes a specific concern to her regulator, I doubt she will feel supported. There is a confidential helpline which Jane can call for guidance, but most likely the regulator will recite the rules, tell her they don’t regulate her CEO and suggest she resigns if it is all bit tricky. Not so much an ethics helpline, more an ethics hey-ho line.

So, in Jane’s sunnier days we are all super grateful for her work and the rules that she works by. When it turns uncomfortable however, she is alone with a clueless regulator and a heightened risk that she will miss something that will reflect poorly on her and undermine the protection we all want from those important rules. We need a better way because this impacts us all.

Do we need new rules? No, I think the rules are great.

Do we need a more interested regulator? Yes, because if the regulator has Jane’s back, we are all better for it. Waiting for her to leave, or fail, does not serve anyone’s interests.

Should employers be allowed to undermine the rules by making it harder for Jane to comply with them? Obviously not, but some will, and we know they will.

This is not Jane’s fault, and it is not fair to expect Jane to fix it on her own. Jane is potentially our justice hero and we need to protect her role. We also need to let her know that we care about the importance of her role. We need Jane and Jane needs us.

When things go wrong, in very rare cases the lawyers involved are incompetent or complicit fools, and shame on them when that is the case; however it is much more likely that we will find someone like Jane, and then the shame is on all of us.

Take care. Paul xx