Company Conscience

If there's a common element to first-day training for in-house counsel, it may revolve around a single question: For whom do we work? The answer, of course, is that our client is the corporation and not any single individual or division within it.

But like peeling the layers of an onion, that deceptively simple answer blankets a world of complexity. Sit down with an experienced in-house lawyer and you'll likely uncover some stories about trying to serve multiple masters. There's good reason for this. In-house lawyers typically serve different people in different situations. In one context or another, we may owe an ethical, legal or practical duty to a divisional business leader, the CEO, the board, shareholders, a law enforcement agency or a bar authority. And that may be just the start.

In a sense, figuring out who's our client is the easy part. Even harder is working on complex questions that lack clear answers. Ultimately, we must not only analyze the law but also offer advice that turns on judgment and values. And while we strive to help our clients achieve their business goals, sometimes the only right answer is, "No, you cannot do that." In some such cases we're not just giving advice; we also need to make that answer stick. In that setting, our role may require courage as well.

For all of these reasons, effective in-house lawyering is sometimes all about character. But that's a lot easier to say than apply. While issues may appear black and white after the fact, the reality is that in-house counsel often are tested on shades of gray and in the heat of the moment. A supportive corporate culture and clear business processes can make such tests easier to pass. While there is no single magic recipe that provides all the ingredients, there are a number of steps that can help.

First, the best time to discuss the in-house lawyers' role is not in the middle of a crisis but when events are calm. It's not always obvious to non-lawyers that in-house counsel have a duty to act as guardians of the corporate interest and, in important respects, the public's trust. It's important to incorporate this concept in ongoing business training and executive briefings. And there's no substitute for reinforcement of this message by business leaders, especially the CEO.

Second, it's helpful to recognize that when difficult questions arise, a candid conversation with the right circle of
people can be a key element in ensuring that good advice and sound judgment carry the day. It's a lot easier to escalate an issue to a more senior lawyer, a business leader or the board if such discussions are part of established business processes. Regular reporting and frank conversation play an important role in ensuring not only that people's doors are open (both literally and figuratively) but also that others walk through them. If this is commonplace, then escalation no longer seems an unnatural act.

Finally, we should keep in mind that in-house counsel don't work alone. A healthy corporate culture requires
a strong partnership among those who handle legal, financial and HR responsibilities. We each have different roles, it's true, and at times we even serve as a check and balance on each other. But that should not obscure the enormous contribution made when strong leaders from all three staff disciplines work together effectively with a firm sense of shared values.

These steps just scratch the surface. In-house lawyers today help serve as the conscience of a company. It's a role that requires good intentions as well as breadth of perspective and soundness of judgment. It's a complex and challenging assignment, and our profession would benefit from a broader and deeper discussion about what it takes to perform this well.


Brad Smith is the senior VP, general counsel and corporate secretary of Microsoft Corp.

staff Writer

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