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The GC's role in ethics can be lonely

Serving an ethical company and getting support from other lawyers is invaluable

I teach law students about the role of in-house lawyers. Most of my students will not move in-house upon graduation, but a primary objective of the class is developing them into empathetic outside counsel. Through role-playing exercises, I try to bring the law students into the rarefied and often conflicting environs of the boardroom, the executive suite and corporate conference rooms. The in-house counsel’s art of managing business imperatives, legal compliance mandates and ethical obligations is as compelling as it is mystifying to the students. One student remarked that the in-house role seems lonely. I confessed that at times it was.

The inspiration for this column was to take the lonely out of managing the unique ethical issues that arise inhouse. Law firms often have an in-house resource to counsel attorneys on ethical issues; corporate law departments generally leave these matters to the individual lawyers to figure out. That is why I began writing this column, not as an expert but as someone who was willing to lead a discussion, identify best practices and face common ethical issues as a community.

But alas, this is my last regular ethics column for InsideCounsel. I confess that after a few years, fresh ideas for the column are fleeting and it’s time to step back. I thank all of you who participated in this dialogue. Your notes and requests have challenged me and fueled this column.

This exploration has revealed several strategies and tactics for dealing with ethical issues but only one inescapable conclusion: You must pick an ethical company to serve. I know this sounds trite, but the best way to manage the vexing ethical issues that may arise in the corporate setting is to avoid them altogether. Once enmeshed in a significant ethical tangle, the Hobson’s choices available to in-house counsel are agonizing: escalate (go over someone’s head), report out (where permitted), resign (“Hi Honey, I’m home.”) or stay quiet (which may be seen as tacit approval of the conduct). This is the point of my class, where a student will ask why anyone would want to be an in-house counsel.

My response is to assure the students that there are companies that cultivate a culture that inhibits the outbreak of major ethical and compliance dilemmas or at least makes the resolution of them less painful. Ethical companies embrace an in-house counsel’s need to speak up, escalate, gatekeep and counsel toward compliance. Companies and executives who view these in-house counsel practice mandates as dangerous are toxic, and they don’t deserve you.

Diligence on a company’s culture is possible and essential. The interview process is a valuable opportunity to assess a company’s culture (check out a previous column where I offered some interview questions to help with your cultural diligence).

Before you hook your career to a company, assess whether the company embraces and nurtures the role of the inhouse counsel. If you sense it does not, then wait for the next opportunity. Taking an in-house counsel job with a company that has a suspect culture is dangerous and could result in serious damage to your career and worse.

I will close with one last comment. I am proud to be part of a vibrant community of in-house counsel. Our practice is substantively complex, politically intricate and increasingly indispensable to our companies.

This community flourishes from peer support and investment. The unique ethical issues facing in-house counsel are topics around which we should educate, challenge and protect one another. This is the last area that an in-house counsel should feel alone.

Brian Martin is SVP and general counsel of KLA-Tencor Corp. Send your comments and best ethics practices to him at insideethics@gmail.com.

Brian Martin

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