In-house lawyers are often called upon to advise in short time frames, have their budgets restricted but at the same time are required to give critical business and legal advice.
Pressure can be applied to find solutions and not say “No” to what their commercial colleagues want.
So, how do you respond without crossing an ethical boundary?
Also, and perhaps just as importantly, how do you navigate those situations without getting fired in the process?
Know where to draw the line
The starting point is you are a lawyer, first and foremost, and that with that professional status, comes overriding ethical obligations.
As an in-house lawyer, you provide advice independently, honestly, and fairly and must be confident in what is right and what is wrong. Your ethical priorities are the same as any other lawyer.
Rule 3 of the Australian Solicitor’s Conduct Rules relevantly provide that a solicitor’s duty to the court and the administration of justice is paramount and prevails to the extent of inconsistency with any other duty. Rule 4 of those rules also relevantly provides that a solicitor must also avoid any compromise in their integrity and professional independence.
And, as such, you must always remember that your first duty is to the Court and to uphold the law and then next to your client.
Knowing who your client is therefore becomes very important. You must always remember that your first loyalty as an employee [as distinct from your overriding duties as a lawyer] is to your employer if they are a company, not your immediate manager or a company director.
There have been any number of instances where in-house counsel have been asked to authorise commercial activities of a company.
Sometimes, this is merely a legal “sign off” role where the lawyer is expected to advise that the proposed transaction is legal and that all legalities have been observed. Obviously, in that situation, the lawyer needs sufficient information to enable them to form an opinion that the transaction is legal and it would be unprofessional and negligent of the lawyer not to seek such information.
But there are also situations where the in-house lawyer may be acting outside their role as lawyer. They may be acting as a company secretary or simply as an officer of the company in some other capacity. In those circumstances, it is equally important for the lawyer to seek and obtain sufficient information to form a proper opinion about the transaction.
Alternatively, if it is beyond your role to authorise the transaction, let the person who asks you to authorise it know this.
As an in-house counsel, a large part of your role will be helping your employer company manage risks. If there is not a clear line of authority for authorising transactions then you need to step in and help the company create systems and processes to manage authorisations.
A good place to start
Professor William Ury’s seminal work, “Getting Past No: Negotiating with difficult people” should be on your “go to” reading list.
He advises a 5 step process for dealing with difficult people that is equally effective when managing the pressures that you can be placed under as an in-house counsel.
In summary those steps are:
- Do not react to bad behaviour – control your response;
- Don’t accuse – try to illicit a “yes” to what you say;
- Reframe the issue in terms of interests not positions
- Make it easy for people to move to your point of view by building a pathway for them to agree;
- Offer why it is hard to disagree with you.
4 observations that may help.
Communicate and reframe rather than just saying outright “No”
Communication is the key and the key to communication is active listening. As an in-house lawyer you will need to deal with the people who raise issues that may put you under pressure.
Often the best way to do this is to listen attentively and actively to what they are saying – repeating the request to them. This will help you clear up any ambiguity in what they have said and help them to see that you fully understand the request being made of you.
At that stage you can then correct the person making the request by properly advising them based on the briefing they have given you. People will often react better to you denying them what they want when you show them that your response is considered and thought-through rather than a quick dismissal of the request.
Educate stakeholders in your organisation by regularly communicating the legal standards, regulations, and potential risks to your business partners. This helps them understand the rationale behind your advice.
Ensure that you frame responses that you give to people in a constructive manner. Instead of a flat “no,” explain the reasoning and offer alternative solutions or ways to mitigate risks.
For example consider using language like:
“I can’t approve this as is, but if we make these changes, we can move forward.”
“Here’s how we can make this work whilst mitigating risk.”
“I see the business need – let’s structure it in a way that protects the company.”
Show confidence and be assertive when required
Sometimes people just don’t want to take “No” for an answer, no matter how diplomatically or logically that is presented to them. In those circumstances, you just have to stand firm.
When faced with high-stakes issues, stand your ground, even if it’s uncomfortable. Remain calm, confident, and assertive in your communication.
People respond to logic and evidence. So, do your best to support your position with data, past experiences, or precedents. This can make your advice more compelling.
You are an important part of the company and you sometimes need to use that power and influence.
Ask them – are they authorised to make the decision – which may result in a change of attitude and a willingness to get past a “Yes” or “No” approach to an issue.
Be a Trusted Advisor
Ultimately, you want to make sure that your colleagues continue to want you in conversations, seek your advice and not see you as the “roadblock”.
Accordingly, foster strong relationships with key stakeholders by being approachable and understanding their business needs. When they trust you, they’re more likely to respect your advice.
But how do you achieve that – well it takes effort and a principled approach to your work life dealings. It requires consistency and long term commitment and the desire to reciprocate with others.
David Maister, the famous professional management consultant, wrote this about being trusted:
“People will trust you, be they client, colleague or employee, to the extent that they know what your principles (or deeply held values) are, and to the extent that they know you can be relied on to act in accordance with your principles. If people don’t know what your values are, or worse, suspect that you have none beyond your own short-term self-interest, they will not trust you with their business, their loyalty or their cooperation
Know When to Escalate
If the issue involves significant risk or ethical concerns, don’t hesitate to escalate the issue to higher management or the board.
If the issue touches on compliance, involve the relevant teams to reinforce your position.
Remember, your client is the company and sometimes you need to “go over the head” of someone if they insist that you engage in behaviour that is inappropriate.
Some concluding remarks
By being a strategic partner and a strong communicator, you can navigate these challenges effectively.
You can also make sure that you protect yourself and make the place you work more enjoyable and the work that you do, more rewarding.
We all spend a large part of our lives at work – so it is worthwhile considering some of the strategies that have been explained to help you in your journey as an in-house counsel.