In-House Lawyers’ Ethics: Institutional Logics, Legal Risk and the Tournament of Influence

Description

This book provides an empirically grounded, in-depth investigation of the ethical dimensions to in-house practice and how legal risk is defined and managed by in-house lawyers and others. The growing significance and status of the role of General Counsel has been accompanied by growth in legal risk as a phenomenon of importance. In-house lawyers are regularly exhorted to be more commercial, proactive and strategic, to be business leaders and not (mere) lawyers, but they are increasingly exposed for their roles in organisational scandals. This book poses the question: how far does going beyond being a lawyer conflict with or entail being more ethical? It explores the role of in-housers by calling on three key pieces of empirical research: two tranches of interviews with senior in-house lawyers and senior compliance staff; and an unparalleled large survey of in-house lawyers. On the basis of this evidence, the authors explore how ideas about in-house roles shape professional logics; how far professional notions such as independence play a role in those logics; and the ways in which ethical infrastructure are managed or are absent from in-house practice. It concludes with a discussion of whether and how in-house lawyers and their regulators need to take professionalism and professional ethicality more seriously. Acknowledgements Contents 1. Introduction Context Professionalism Ethics and Lawyers’ Ethics Legal Risk Institutional Logics and Regulation The Structure of this Book and our Conclusions 2. Methods The First Set of Interviews The Second Set of Interviews The Survey Mapping Indicators of In-House Practice Conduct of the Survey and Responses A Note on Terminology Conclusions 3. The In-House Lawyer and Their Place in Networks Understanding In-House Lawyers’ Place in the Profession The Move In-House The Evolution of the In-House Role The Balancing of Roles Structural Predictors and Mediators Presence on the Board Employer–Employee Relations and the Role of the In-House Lawyer Ethical Pressure Conclusion 4. The Tournament of Influence: Saying ‘No’ and The Independent In-House Lawyer The Tournament of Influence The Tournament of Influence Saying ‘No’ Who Says ‘No’ (and When and How)? Getting Comfortable Conclusion 5. Competing Logics – A Look at Risk Risk and Risk Management Logics: An Overview Risk Appetite Who Owns ‘Legal’ Risk? Looking Beyond Risk Appetite and Risk Definition – A Vignette Legal Risk Management Processes Experiential vs Systems Approaches Risk Mitigation Risk as a System of Understanding and Influence within the Company Narrow and Broad Framing: Some Examples From the Vignettes Conclusions 6. Ethics and Legal Risk Management Ethics and Risk Red Lines Utility, socialisation and Biases: the Network of Influence Vignette – The Network Influence Vignette – Dealing with Breaches What Influences Reporting Up or Out An Ethical Space in Legal Risk Assessment? Vignette – Misuse of the Legal Function Conclusions 7. Striking the Balance: Identity and Orientation The Distinctiveness of the In-House Lawyer Role Conception A Closer Look at the Orientations In-House Lawyer Team Orientations Conclusions: Identity, Orientations and the Tournament of Influence 8. Mapping the Moral Compass: Orientations, Infrastructure and Ethical Inclination Professional Orientation Do Employers Understand Professional Obligations? Professional Ethical Infrastructure Metrics for the Moral Compass Which Orientations are Independently Associated with Ethicality? Conclusions 9. The Ecologies of In-House Ethicality Social Trusteeship Ecological Approach Teasing out Institutional Logics The Place of In-Housers in the Network of Influences Independence A Blend of Commercial and Legal Thinking – Risk Broader Influences Law and other Influences Professional Influences Some Final Thoughts Appendix A: Interview Schedules Index