Globalisation changes “leaving ethics debate behind”

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15 April 2015


Heineman: in-house lawyers face challenge

Heineman: in-house lawyers face challenge

A high-powered trio of senior lawyers have kick-started what they hope will become a wider debate on the ethical dimension of lawyers’ professionalism amid heightened competition among law firms in an increasingly globalised marketplace.

One target of their mission to boost discussion of professional ethics is in-house lawyers, mirroring an initiative started recently by academics on this side of the Atlantic.

In an essay entitled Lawyers as Professionals and as Citizens: Key roles and responsibilities in the 21st century, published by the Harvard Centre on the Legal Profession, former General Electric general counsel Ben Heineman, former WilmerHale co-managing partner William Lee, and Harvard law professor David B. Wilkins, argued that economic, political, and cultural changes currently affecting the profession had to be accompanied by an equal focus on ethics.

They said: “There is widespread agreement that the legal profession is in a period of stress and transition; its economic models are under duress; the concepts of its professional uniqueness are narrow and outdated; and, as a result, its ethical imperatives are weakened and their sources ill-defined.”

Focusing on corporate legal departments, large law firms, and leading US law schools, they sought to “define and give content to four ethical responsibilities that we believe are of signal importance to lawyers in their fundamental roles as expert technicians, wise counselors and effective leaders: responsibilities to their clients and stakeholders; responsibilities to the legal system; responsibilities to their institutions; and responsibilities to society at large.”

The authors stressed that general counsel should play a leading role in establishing an integrity culture”, where possible, in their institutions, for the benefit of the businesses and society as a whole. “The essence of the role is to move beyond the first question – “is it legal?” – to the ultimate question – is it right?”.

But they acknowledged the ethical quandary facing many in-house lawyers, identified by Professor Richard Moorhead of University College, London, and his colleagues.

Echoing the view of their English counterparts, who described in-house counsel in positions of growing stress and often weakness in the corporate power structure, the Americans said: “These lawyers are under… pressure to demonstrate their ‘value to the business’ by contributing to the short-term economic returns of business leaders, who are themselves under increasing pressure to produce more…

“Incessant cost pressures from global competition and desire for margin expansion make choices about the types and scope of integrity initiatives challenging for the inside lawyers – and, ultimately, for the corporation.”

The authors criticised what they said was a “myopic focus on short-term economics” by law firms, resulting in an “imbalance between ‘service’ and ‘business’”. They said: “To be sure, there have been benefits to the profession from increased transparency concerning operation of firms and the resulting increased competition among firms.

“But the relentless focus on short-term economic success has adversely affected the culture and institutional integrity of firms; the training, mentoring, and development of young lawyers; the ability of firms and their lawyers to service the poor and underprivileged; and the ability of firms and their lawyers to devote time to the profession and the broader needs of society.”

They called for collaboration between clients, law firms and law schools, “rather than continuing the cycle where corporations blame firms for cost, firms blame law schools for unprepared students, and law schools look down on law departments and law firms”.

To promote discussion of the issues raised, the authors said they would create a website “on the roles and responsibilities of lawyers as professionals and as citizens” on the general Harvard Law School website. They would also invite leading lawyers and commentators on law, business, and ethics, to submit comments on the subject.

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