Juliet Oliver, general counsel of the Solicitors Regulation Authority
A panelist at our recent conference for in-house solicitors compared the client-lawyer relationship to a romantic one. If private practice is a fling, working in-house is a marriage.
As someone who has worked both in-house and in private practice, I can say that both rely on the ability to build and maintain strong long-term relationships, balancing the need for familiarity with independence, trust with due inquiry.
But there is no question that the more embedded, permanent nature of the in-house role creates a different dynamic to that experienced in private practice, and comes with its own, distinct pressures and challenges.
Challenges around independence
Some of the problems facing in-house teams have been highlighted in recent high-profile scandals, such as those involving the Post Office. These have focused attention on the role and actions of in-house solicitors when something goes badly wrong in an organisation. They have placed the challenges to independence and the pressure to compromise ethics and regulatory obligations under the spotlight.
The critical issue of independence came out powerfully in our recent thematic review into in-house practice. We surveyed more than 1,200 in-house lawyers and conducted in-depth interviews with those working in both the public and private sector. We found that most in-house solicitors are valued for their independence and the objective, impartial advice that they give. Importantly, the majority reported that they feel able to withstand commercial and political pressures within an organisation which is contemplating taking decisions that do not align with legal or regulatory obligations.
Yet some struggle. And concerns have been raised by some GCs that the pressures on in-house lawyers are more intense and prevalent than reflected in the thematic review. We take those concerns seriously.
Supporting in-house lawyers
We recognise the challenge for in-house lawyers facing those difficult conversations with someone who may be a close colleague, or direct manager with power over their employment conditions. And that there are areas where in-house solicitors want more support. For those facing the sharp end, we are working on guidance highlighting how and when to disclose wrongdoing – reporting within and outside your organisation – and how solicitors can navigate the tricky risks and issues they face when conducting an internal investigation.
On a practical level, we know that too many of those working in-house feel that their employers don’t understand their professional obligations and how best to support them in meeting these. This can range from adequately supporting them with training and systems to ensuring they are able to provide advice freely to having direct and independent reporting lines when needed.
So, we will be producing guidance targeted at employers which lawyers can point to if needed. It is vital that in-house lawyers feel able to define their roles clearly in their organisation and set boundaries and expectations together with their CEOs and other senior leaders.
Knowing your client
Another area where some struggle is in relation to knowing your client. The common scenario of being approached for help by individual colleagues – or separate members of a board or parts of an organisation – is familiar to me.
We are providing guidance to help in-house solicitors identify in whose interests they are advising, and where conflicts may arise – and to establish systems and processes to help avoid problems arising. The issue is compounded with the rise of the GC, who may be a member of the board or decision-making body it is advising. Our guidance will help solicitors know when to wear which of their various hats.
Conversations are key
We are determined to ensure that the concerns of in-house solicitors are heard and reflected in our work.
This spring we held a well-attended conference for in-house lawyers. Discussion among delegates was animated and robust. One thing that came across clearly was the danger of professional isolation. This is especially acute where a solicitor is the lone lawyer in an organisation of non-lawyers, but also appears an increasing risk even in larger organisations where homeworking is now prevalent. Professional networks and face-to-face events are good ways to tackle this – and can provide a cost-effective way of maintaining ethical awareness and continuing competence.
This is even more important given the challenges we heard, particularly in the public sector, around funding and resources. The public sector struggles to compete with the private sector in recruitment. Whether it’s targeting recruits who need greater flexibility or promoting the public good of this work, these teams are having to think smartly about how they can attract the right talent.
There was lively debate about whether in-house lawyers should be the ethical conscience of their organisation. While views differed, most agreed that the GC role presented an opportunity to influence and shape its ethos and values, and its business practices and those of others through the supply chain with their purchasing power.
Through roundtables and events, we will continue these conversations with the in-house sector. Please join us for our next one – an online discussion about our new strategy in July.
The value of in-house solicitors
I have focused more on the challenges of working in-house, so will finish on a positive note. I have found the role hugely rewarding, affording me the opportunity to do fascinating work and to make an impact on the things that matter to me. In the last decade, the number of in-house solicitors has grown by a third to 34,500. Increasingly businesses and other organisations are recognising the value of in-house legal teams.
They see the value of having lawyers at the top table. Our expertise, problem solving analytical and strategic skills can help drive the success of the business or organisation – we are not just someone to call when a legal problem emerges. Organisations clearly value lawyers embedded in their business and with knowledge and skills tailored to their specific needs.
Ultimately, they recognise the value of a marriage. We will continue to offer support to make sure that relationship works as well as possible.
