08 June 2016

In-house lawyers' ethics under pressure, study finds

A new report from the Centre for Ethics and Law has found that one in ten in-house lawyers will avoid saying 'no' to management, even when there is no legally acceptable alternative to suggest.

By Kathryn Higgins

Ho Yeow Hui

Based on a survey of 400 in-house counsel, the Centre for Ethics and Law report has uncovered significant challenges coming to bear on those lawyers who must straddle both the strategic needs of their organisation and the ethical demands inherent to the legal profession. Around 36 per cent of the study’s sample said that legal loopholes should be identified when they benefit the business, while 30 per cent conceded that a focus on commercial awareness can inhibit them from performing their role as an in-house lawyer. Troublingly, almost one in ten said they would avoid saying ‘no’ to their employers, even when they have no other legally acceptable alternative to offer. Seven per cent said they had never discussed professional ethical issues with their colleagues or superiors, formally or informally.

Study details

Approximately 68 per cent of the study’s sample were in-house lawyers working in business, while 25 per cent hailed from the public sector and 7 per cent from non-profit charity organisations. Just over a quarter of respondents held a general counsel role in their organisations, while just under half the sample held a senior role. According to co-author and Centre director Professor Richard Moorhead, the report, entitled 'Mapping the Moral Compass,' is one of the most intricate examinations of in-house ethics ever conducted.

Ethical priorities

Between 10 and 15 per cent of survey respondents told researchers that they were regularly or very frequently asked by their employers to provide legal advice on issues that made them uncomfortable. The survey results suggest that respondents generally prioritise client interest more often than principles of integrity and effectiveness, and more often still than principles of independence and legality. ‘This is not consistent with the approach required under professional codes,’ the report warns.

Public sector pressures

Interestingly, despite noting the positive correlation between commercial and ethical pressures, the study notes that ethical pressure is more elevated among lawyers working in the public sector. ‘Given reported changes within at least part of the Government Legal Service suggesting a heightened appetite for legal risk, which some criticise as a disregard for the rule of law, it is worth emphasising that lawyers working in public sector organisations showed higher rates of ethical pressure than those working in a business,’ the authors said in Legal Futures

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