The role of the in-house Counsel considering the SRA Guidelines

About 20 years ago I wrote an article for the International In-house Counsel Journal about the direction and approach that an in-house counsel should take in order to gain visibility to the C-Suite.

My opinion was that in-house Counsels (in the UK and Europe) were seen more as suit wearing wordsmiths, working behind closed doors, and never truly seen as part of the business. Whereas, in the US the in-house Counsels adopted casual attire, embedded themselves in an open space, close to the top executives and were not only seen, but also heard.

I argued, that to get the C-Suite attention the British in-house Counsels should leave their fishbowl, walk around the office to find, for example, the head of sales and ask to be part of their team. Also, get involved in pipeline meetings, participate in sales kick-off meetings, and master CRM systems. As soon as there is a whiff of a potential deal, even before the NDA stage, follow the sales journey and when the deal is closed celebrate that success with the team. This behaviour will prevent that afterthought feeling that many in-house Counsels experience and given time an invite to the leadership team meeting will be forthcoming.

Since I wrote that article, I have seen many other articles advocating a similar, if not, identical approach, using buzz words such as ‘business enabler’, and ‘trusted advisor’. I’ve even seen a small cottage industry spring up (by ex-GC’s) offering advisory services to incumbent GC’s on how to be a contributor to the business.

Twenty years on and I am happy to write that there has been a massive shift in perception of the in-house Counsel, however, considering recent events which were made very public, we need to re-examine our relationship with the business.

I am not about to back pedal on my synopsis. I agree that we have moved on from wordsmiths to business enablers, but the closer we become embedded in the business the riskier our behaviour becomes. I have seen too many cases where the desire to be part of the business has either crossed the line of legal professional conduct, or blurred it to such an extent that the gap between the surface and subtext on the issue of a business enabler is riddled with disparity.

Towards the end of 2024 the SRA published its long awaited Guidance For Employers On Understanding In-house Solicitor's Professional Obligations As An Employer. I was lucky enough to part of the in-house virtual group that contributed to it. The summary of this report concluded that General Counsel and in-house legal teams play a key role in helping organisations to behave legally, fairly and ethically by:

·      Supporting good corporate governance;

·      Improving accountability;

·      Managing risk;

·      Supporting robust evidence based and lawful decision making;

·      Supporting and enhancing a strong ethical culture within the business.

Key to the above is understanding who your client is:

For many in-house solicitors their client will be their employer. However, we recognise the variety and complexity of organisations and structures in which in-house solicitors operate, and that your client may vary from one matter to another. For example, if you work for an organisation with a complex structure, you may be asked to advise other companies within the group.

and

There will be occasions where commercial interests will not be aligned with regulatory interests or the public interest. This means that an in-house solicitor will, on occasion, need to inform you that they have a concern that something improper or unethical may be taking place within the organisation.

In doing so, solicitors can support organisations to take lawful and ethical actions and help to prevent corporate scandals and collapses.

This is a valuable function of the solicitor's role. In-house solicitors should be empowered and supported to raise concerns.

Throughout the years I have tried to keep the ‘officer of the company’ principle at the forefront of my mind when trying to reconcile the interest of my colleagues vs. my role and have tried not to overstep that mark.

I for one have adopted the customer support approach to be a friend of the business by:

·      Identifying my client, their needs and preferences;

·      Educating them to approach me as a service;

·      Try to learn their pain points and put myself in their shoes;

·      Work on communication; and

·      When the task is completed, asking for feedback.

The SRA guidelines are very useful for businesses, and I urge in-house Counsels to read them, pass them on to employers, and even try to make them part of employment contracts. However, the guidelines are by no means the panacea for the in-house profession. I am sure that they will continue to evolve, especially with the advancement of AI and the changes that it will bring to our profession, but the guidelines did not define (a) the qualification of the General Counsel; (b) best reporting line for the in-house function; and (c) requirements for continued professional development.

I can only hope that in the not-too-distant future these fundamental points will be more clearly defined.