Atkinson: Competing pressures on in-house solicitors
A template letter for formally incorporating professional ethical obligations into an in-house solicitor’s employment contract was published yesterday by the Law Society.
It forms part of the first iteration of an ethical practice framework which “seeks to clarify the role of in-house solicitors and strengthen their position as a critical friend to organisations”.
The framework – developed in partnership with the Inter-Disciplinary Ethics Applied Centre (IDEA) at Leeds University – also includes a protocol outlining the role, value and ethical obligations of in-house solicitors, intended for board-level sign-off to ensure “clear reporting lines, independence and resourcing”.
Other features are a “foundational” guide to in-house work, a standard job description, guidance on practical strategies for managing workload, independence and ethical decision-making under pressure, and an ethical decision-making tool.
The contract amendment letter is adapted from an original produced by Jenifer Swallow and Ciarán Fenton in 2022, and comes with sample “talking points” and a board briefing paper to explain it to business leaders.
The framework said: “In-house solicitors play a key role in their organisations, bringing much to their work, including beyond their core legal experience. But their primary role is to practise law…
“Recent corporate scandals have put in-house regulation and practice in the spotlight, highlighting the tension between in-house solicitors’ obligations of independence and their status as an employee…
“Environmental, social and governance (ESG) issues are high on the corporate agenda, holding organisations to adopt ever higher standards of governance and societal responsibility.
“To respond to these circumstances and get ahead of the risks, a practical step in-house solicitors and business leaders can take is to acknowledge in writing the regulatory obligations of in-house solicitors through an amendment to their employment contract.”
This was “particularly pertinent” for the general counsel, chief legal officer or equivalent most senior solicitor, but was relevant to all in-house solicitors.
The standard job description is similarly aimed at ensuring “clarity about professional responsibilities and expectations at the recruitment stage and throughout employment”.
The guidance said in-house solicitors “will need to be comfortable with being uncomfortable”.
While for most in-house solicitors, “an outright ‘no’ in response to a stakeholder request will be rare” and they will look for an acceptable solution, “in situations in which, in their judgement, a proposal is legally or ethically unacceptable, they must be willing to be fearless in pointing that out to the organisation”.
The society said the framework had “a different focus but is intended to be complementary” to guidance for in-house solicitors published last November by the Solicitors Regulation Authority.
Richard Atkinson, president of the Law Society, said: “In-house solicitors are in a unique position as both legal and business advisers to their employer. Naturally, this gives rise to competing pressures and ethical dilemmas.
“The framework responds to a real need for us as a professional body to enable the in-house community to better understand ethical challenges, practise ethical judgement and meet their regulatory obligations.”
Dr Jim Baxter, professional ethics consultancy team leader at the IDEA Centre, added that in-house lawyers played a “uniquely valuable role”, which required an ability to wield influence while maintaining independence.
“The framework aims to empower solicitors by supporting sound reasoning while putting them on a firmer footing within organisations and fostering solidarity in the professional community.”
