I have always believed that an in-house legal department should adopt an aspirational mission to be a competitive advantage to its company. A department accepting this
commission develops and fields legal personnel who are students of the client's business and deep experts in the relevant legal issues. The creative solutions developed by such a department are as worthy of protection as any other company intellectual property. In the pursuit of these valuable and perhaps proprietary solutions, in-house departments are rivals, and rightly so.
Where solution development does not confer a competitive advantage to the client, collaboration among departments is common, useful and appropriate.
Still, there remains an important topic that deserves further community awareness and dialogue: ethics. I am certain that the readers of InsideCounsel shared my dismay while reading about in-house counsel caught in legal and regulatory entanglements (see "Under Scrutiny," June 2008). Sure, there were some in that group of lawyers who engaged in willful misconduct, and I confess my sympathy does not extend to them. Rather, my concern is reserved for those who found themselves entangled in legal proceedings where the issues were not evident--for example, failure to discharge our so-called gatekeeping functions (see "Targeted and Fined," June 2008). It is in this area that the in-house community should coalesce around significantly enhanced community discourse and best practice sharing.
With the crush of business demands, in-house legal departments fail to invest in programs to help lawyers traverse the ethical minefields. This attention deficit grows stark when one considers the significant investment made by our law firm colleagues to assure compliance with codes of conduct. From opinion and conflict committees to law firm general counsel, law firms do not leave ethical compliance to self-help. In-house teams, on the other hand, tend not to dedicate departmental resources to facilitating compliance with the unique issues that in-house counsel face.
If the reports of our colleagues' ethical dilemmas are not sufficient to convince you that the in-house community must invest in this area, give yourself and your team a quiz. Ask these seemingly straightforward questions:
o Who is your client?
o Which rules of conduct apply (i.e., state, SEC, foreign country rules of conduct)?
o What are the attorney-client con- fidentiality obligations set forth in those codes?
o Explain the "up-the-ladder" obli- gations that apply under the various applicable codes.
I fear and expect that the answers fully support the need for additional attention in this area.
Here are a few ideas to increase focus on in-house ethics: First, in larger legal departments, ask a high-potential attorney to become the resident expert on ethical issues and give the role visibility in the department. Second, ask your law firm partners to become experts for your department. Ask them to monitor and report developments; use your power of spend to secure quality in-house ethics training sessions. Also, the Association of Corporate Counsel sponsors programs and offers materials on ethical decision-making.
The role of the in-house counsel is a complex one. It requires the attorney to perceive the ethical pitfalls that he or she may encounter while serving as a partner to the business.
In the name of stemming the list of in-house counsel who find themselves under scrutiny, let's, as a community, exchange ideas and identify best practices. Assuredly, keeping colleagues out of trouble is not a competitive advantage for any of our clients.