The Solicitors Regulation Authority (SRA) does not appear to recognise the “severity of the risks” facing in-house lawyers indicated by its own research, a group of senior practitioners has warned.
The findings do “not reflect the collective experience in-house” and the regulator has offered “insufficient action and support in addressing concerns in the interests of stakeholders and society”.
The response published yesterday was signed by 17 general counsel (GC) and other senior in-house lawyers, and was co-ordinated by former GC Jenifer Swallow, who is currently a strategic adviser to companies and until last year headed LawtechUK.
The SRA research, published last week, said that in-house lawyers were generally able to withstand pressures on their independence but a minority reported demands to act unethically – 10% of the 1,200 surveyed said their regulatory obligations had been “compromised”.
A further 5% said they had faced pressure to “suppress or ignore” information which could conflict with their professional obligations, while the same proportion said they had experienced “pressure from colleagues not to disclose information that was not in the best interests of the client”.
While welcoming the SRA’s focus on the sector, the response said the review “understates the severity of the risks present in the in-house environment and misinterprets or is inadequate in its conclusions as to their cause”.
It called for the SRA to increase regulatory and practical support for in-house lawyers by acknowledging and prioritising the seriousness of the risks and challenges in the in-house environment, and providing “practical, dedicated, well-resourced support to address these risks on an ongoing basis”.
The lawyers disagreed with the comments of SRA chief executive Paul Philip that only a minority of in-house lawyers were struggling.
“It is common for in-house lawyers to face ethical challenges and pressure to compromise their regulatory obligations. This is not a minority issue. To conclude otherwise indicates underreporting, undue optimism and or other deficiencies in the review.”
The review’s “optimistic tenor” was also inconsistent with statements within it, they said, such as the comment that “many in-house solicitors described experiencing commercial and political pressures and professional isolation”.
The response called on the SRA to “re-evaluate the tone and conclusions of the review, to ensure the risks are correctly understood, framed and addressed, and with perceived as well as actual priority and urgency”.
This should be followed by “a full programme of mitigation”, including guidance for in-house solicitors on applying the current professional and regulatory framework in their corporate and institutional environments.
Among other measures, the lawyers urged the SRA to reach out to the chief executives and boards of employers to outline the regulatory requirements of in-house solicitors, including the duty of independence, and providing access to further resources.
They also said a summary of professional duties should be included in in-house lawyers’ employment terms, an idea which Ms Swallow has pushed before.
The paper concluded: “The review represents a significant opportunity to give the in-house legal working environment the attention it needs and deserves, and for which many in-house solicitors are desperate.
“There is much that is fantastic about the in-house legal world, but there are also systemic issues – as is the case in any sector.
“Identifying, acknowledging and tackling these head on has the potential to strengthen resilience and effective decision-making within our corporations and institutions, help reduce corporate misconduct, and stimulate growth and a fresh approach into the future.”
Those initially signing the response, all doing so in their personal capacity, were: Shanika Amarasekara, former GC and now chief impact officer, British Business Bank; Nilema Bhakta-Jones, group GC, Kantar Group; Vanessa Cowling, head of legal, corporate, EasyJet; Maaike de Bie, group GC and company secretary, Vodafone Group; Russell Deards, director of legal & compliance, Highbourne Group; Elizabeth Dyce, group GC, Innovation Group Global; Paul Gilbert, director, LBC Wise Counsel; Richard Given, group GC, Openpayd; Lucie Grant, vice president and GC, Dura-Line; Jamie Fraser, GC and COO, Wedo; Nick Hartigan, group GC and company secretary, Accsys; Manu Kanwar, founder, LexSolutions; Bruce Macmillan, GC, Irwin Mitchell; Andrew Mills, legal director, UK & Ireland, Experian; Elizabeth O’Neill, group GC and company secretary, British Business Bank; Solomon Osagie, group GC and company secretary, Cashplus Bank; James Sullivan, chief risk & legal officer, Ziglu; Jenifer Swallow; Lesley Wan, GC, FBN Bank; and Ben Watts, GC, Kent County Council