Over the past two decades, a number of countries have passed laws that have sought to make “gatekeepers” – lawyers, accountants, auditors, and other professionals, accountable for alleged wrongdoing by their organizations. ACC believes that in-house counsel should not be prosecuted simply for representing their clients. Instead, gatekeeper liability should only apply if the in-house counsel is willfully participating in the unlawful activity.
About in-house counsel
Most in-house counsel work in small legal departments where they field a variety of legal requests. According to ACC’s 2024 Benchmarking Survey, 56 percent of companies employ nine or fewer in-house counsel. Companies with annual revenue of less than $1 billion generally employ two lawyers and have a total legal staff of 4. As such, most in-house counsel are generalists, especially at smaller companies.
In addition to legal advice, in-house counsel frequently participate in business and strategic planning discussions. The ACC 2025 CLO Survey reported that nearly 70 percent of chief legal officers have oversight over two or more non-legal departments, including compliance, privacy, human resources, and government affairs. In-house counsel are expected to be both legal experts and deeply knowledgeable about the business.
In-house counsel are also called upon to quickly provide legal advice on a wide variety of topics to management and employees who have varying levels of legal sophistication.
Hiring outside counsel is commonplace for legal issues that require specialized knowledge, or when litigation is anticipated. However, using external counsel for every request is cost-prohibitive and not in alignment with the real-time needs of companies.
In-house counsel should not be prosecuted for providing legal advice in good faith
Unless there is intent to commit a crime or willful disregard of legal obligations, in-house counsel should not face criminal or civil legal action for advice giving in good faith and based on the information available at the time.
Criminal prosecution of in-house counsel for providing legal advice is likely to result in less guidance to company executives and employees on the company’s ethical and legal obligations. This chilling effect on client communications will have the unintended consequence of reducing legal guidance to organizations and diminishing the important role in-house counsel play in fostering legal and ethical compliance.