Nokes: Led research
In-house lawyers can pay a heavy price when saying ‘no’ to their employers, especially given the “sometimes horrifying level of toxicity” of corporate workplaces, new research has found.
“For some participants, it meant economic impacts, the threat of job insecurity and sometimes also, being prepared to walk away from the job and occasionally taking that walk,” researchers said.
“For others, it also involved psychological distress – stress and anxiety, depression and burnout which sought to dominate their everyday working lives.
“And for some, it meant consequences for their physical health, the likely impact of the significant levels of stress that accompany workplace conflict.”
They concluded: “Professional autonomy has a price and many of our participants paid it in one way or another.”
Things were so bad that some of the 18 experienced in-house lawyers interviewed for the research “contemplated self-harm to remove themselves from the situation”.
The study, In-house lawyers and the price of saying no, was conducted by Dr Karen Nokes, a law lecturer at University College London, with Professor Richard Moorhead, postdoctoral research fellow Dr Sally Day and Professor Rebecca Helm, all of Exeter University’s school of law.
It forms part of their work on the Post Office Project, which is exploring the lessons for lawyers’ ethics, corporate governance and the criminal justice system arising out of the Post Office scandal.
The lawyers interviewed “shared vivid and often raw accounts of significant professional conflict”, the researchers said.
“They explained how they ‘held the line’ against actual or potential organisational impropriety and the particular challenges to their professional independence and integrity that these invoked.
“The challenges included specifically legal matters, such as papering a transaction or signing off on disclosures, and more general concerns where a lawyer was ‘in the room’ when impropriety arose.
“For both, our participants saw agency as a choice but also that agency was largely forced upon them by the extremity of the situation. Doing the right thing involved the risks of navigating significant organisational challenges and inter-personal pressures.”
The Solicitors Regulation Authority recorded in 2023 that 10% of the more than 1,200 in-house lawyers surveyed said their regulatory obligations had been “compromised”.
The focus of this “exploratory study” was on the triggers, experience and costs of resisting illegality and serious impropriety, which the academics said was “a picture not captured by previous empirical work”.
It identified three types of scenarios that prompted lawyers to shift towards conflict with their employers: actual or potential instances of illegality and/or clear breaches of legal or professional obligations; likely legal risks but where the type and level of risk were uncertain and context dependent; and activities that might be classed as ‘lawful but awful’.
The seriousness of events “meant the lawyers felt driven to give unambiguous advice to their employing organisation. Saying no was not their normal disposition, but there came a point when they had to shift from their preferred role (of counsellor or business partner) to being cops.”
This was often explained in terms of their overriding duty to the court and administration of justice.
“They saw themselves as negotiating constraints, balancing competing interests, and choosing the most effective way to get the job done,” the study said. “They neither desired nor engaged in naive naysaying, and yet, there were limits to their commercial immersion.”
The lawyers identified how much culture affected the way they operated; while a few described positive organisational cultures that supported their ability to provide challenge and say ‘no’, the majority talked about negative cultures.
“Our study complicates this picture of total or partial professional control by highlighting the sometimes horrifying level of toxicity our participants described battling against, once they raised their heads above the parapet…
“Many of our participants spoke of being in roles and situations where senior leaders expected them to simply comply and conform. Demands of servility extended to bullying…
“Even so, remarkably perhaps, they chose to exercise their professional agency and hold the line against often significant organisational demands.”
But the academics suggested that others in similar situations “may have capitulated or collapsed under the pressure” – participants spoke of expectations that lawyers “could and would legitimise questionable activity”.
They saw holding the line as important for the organisation and for themselves personally. But equally they were aware of the vulnerability of their position “and it sometimes had stopped them doing what they thought was right”.
The factors that made it more likely that a lawyer would say no were social capital – forming and maintaining relationships within the organisation – trust, social networks, personal resilience and professional experience.
The study stressed the importance of in-house lawyers having access to support networks of like-minded people, generally outside the organisation.
While resilience was framed by all as a positive attribute and a protective factor, many participants also reported having experienced psychological distress and sometimes physical ill health despite their personal resilience.
“Assertions of independence appeared to have contributed to stress, anxiety and other issues. Resilience supported short-term functioning but did not stem the effect of eroding long-term health. This suggests the hidden cost of resilience and of exercising professional independence…
“Indeed, a central lesson to be drawn from this paper is how difficult it is to say ‘no’, and how that difficulty is experienced over an extended period of time.
“That, plus the generally serious nature of the wrongdoing being confronted, suggests lawyer independence is vital to good governance and the rule of law, but is also significantly undermined by cultures of conformity, and sometimes in extremis, servility.”
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