In-house Lawyers: Dealing with Ethical Challenges

In-house Lawyers: Dealing with Ethical Challenges

How do we help our junior lawyers to resolve ethical dilemmas?

Senior lawyers often have coping mechanisms for dealing with ethical dilemmas. Our professional standards rightly prize independence, and our healthy self-preservation impulses help us to navigate these issues, as we know that our personal professional reputation (and perhaps our own future as regulated lawyers) is at stake. We also have plenty of examples of lawyers who have been found wanting, and entire law firms that have disappeared in the wake of some ethical scandal.

But it is much harder for a junior lawyer, and in particular the junior lawyer who may be in a small legal team, or perhaps the sole lawyer in a team, to hold the line.

How then can we train junior lawyers to deal with ethical dilemmas?

A number of books and publications can help:

Margaret Heffernan has given a great TED talk called “Dare to disagree”, which you can watch here.

In addition we need to make the space for difficult conversations, and to mentor junior lawyers

We can do this in-house, or we can do it collectively in our professional bodies.

The Solicitors Regulation Authority, the Law Society, the Bar Standards Council and CILEx all have advice and professional frameworks which their members can consult.

The SRA and Slaughter and May produced special guidance for in-house lawyers in “SRA Handbook 2011: In-house lawyers guide” (pdf).

Junior lawyers also need to pay particular attention to their use of social media. Lord Woolf’s warning in Hodgson v Imperial Tobacco Limited is salutary (thanks to Mena Ruparel and Richard Burnham for the reference to this case):

“The professionalism and sense of duty to legal advisers who conduct litigation of this nature mean that the courts are able to rely on the legal advisers to exercise great self-restraint when making comment.”

Universities and law schools are turning their attention to this area. The Centre for Ethics and Law at UCL is a prime example. A Law School Dean from the Netherlands, Carel Stolker, addressed the issues internationally in “Rethinking the Law School: Education, research, outreach and governance” (pdf), Cambridge University Press, 2014.

Finally, experience from the USA may give more examples of both good and bad practice. See for example “Educating Lawyers: Preparation for the Profession of Law”, by William M. Sullivan, Anne Colby, Judith Welch Wegner, Lloyd Bond, Lee S. Shulman. San Francisco: Jossey-Bass, 2007, also known as the Carnegie Report on Legal Education (summary) (pdf).

See also the writing of Harvard Professor (and ex GE General Counsel) Ben Heinemann, for example, his High Performance with High Integrity (Memo to the CEO), 2008, or more recently, “The Inside Counsel Revolution”, Harvard, 2016.