In-house Lawyers: Duty of Care

In-house Lawyers: Duty of Care

In-house lawyers are in an unusual position of owing multiple, and potentially conflicting, duties of care to their employer, to the courts, and to those more broadly impacted by their decisions.

In-house solicitors and barristers have clearly defined duties of care as set out in their professional codes of conduct: to” uphold the rule of law” and observe their “duty to the court.”

In-house lawyers owe a professional duty of care to their employers as their clients, but in addition to this will have a contractual obligation to act in the best interests of their employer. In turn, the employer will expect their in-house legal team to act in the best interests of the business. Often this can mean finding ways to use the law that benefit their employer’s business and improve profitability, and there is the potential for this to lead to conflict with professional obligations around duty of care.

In addition to these potential contractual and professional conflicts, the decisions in-house lawyers make in their day to day work can have a significant impact on society beyond their organisation. For example, a lawyer working in an industry with a complex supply chain may advise the company about the standards they require their suppliers to abide by; depending on the advice given, this could have significant human rights and environmental implications.

Lawyers are required to “behave in a way that maintains the trust the public places in you and in the provision of legal services” and to uphold “the proper administration of justice”. Arguably this places a professional obligation on in-house lawyers to act as a critical friend to their employer, and to consider the wider social justice implications of their actions, not just the bottom line.

Think about a piece of advice you have produced as an in-house lawyer where these issues of conflict arose. Consider this graphic on the bases for making decisions. Where on the graphic you were – and where would you want to be?

Duty of care