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Ethics For In-House Counsel: Navigating The Ethical Responsibilities Of In-House Counsel To The Organization And The C-Suite – Above the Law

The
greatest
challenge
for
the
in-house
lawyer
today
is
reconciling
the
role
of
being
a
corporate
business
partner
with
the
role
of
being
the
corporate
guardian.
Balancing
these
roles
can
be
fraught
with
ethical
pitfalls.
To
navigate
these
pitfalls,
it
is
important
for
the
in-house
lawyer
to
know
and
understand
the
ethical
rules
that
have
been
adopted
to
guide
their
work
and
why
they
have
been
adopted
in
the
first
place.


Background

The
modern
corporate
in-house
counsel
faced
significant
criticism
during
the
early
21st
century
in
the
wake
of
scandals
that
involved
the
collapse
of
corporate
giants
like
Enron
and
WorldCom.
The
failures
of
in-house
lawyers
during
this
period
were
largely
the
result
of
their
inability
to
effectively
serve
as
ethical
gatekeepers,
a
responsibility
that
should
have
helped
prevent
the
fraudulent
activities
that
led
to
these
catastrophic
corporate
downfalls.


The
Wave
Of
Scandals

Enron’s
collapse
was
a
result
of
widespread
fraud,
particularly
through
the
manipulation
of
accounting
practices
and
the
creation
of
off-balance-sheet
entities
to
hide
debt.
The
in-house
lawyers
at
Enron
failed
in
several
critical
ways:


  • Failure
    To
    Challenge
    Questionable
    Practices.

    Despite
    clear
    evidence
    of
    unethical
    and
    illegal
    practices,
    such
    as
    the
    creation
    of
    complex
    financial
    structures
    designed
    to
    mislead
    investors
    and
    regulators,
    the
    in-house
    lawyers
    did
    not
    take
    meaningful
    steps
    to
    challenge
    or
    stop
    these
    practices.
    In
    fact,
    the
    in-house
    lawyers
    often
    worked
    to
    facilitate
    these
    schemes,
    interpreting
    the
    law
    in
    ways
    that
    allowed
    the
    company
    to
    conceal
    its
    financial
    problems.

  • Conflicted
    Loyalties.

    The
    general
    counsel
    (GC),
    as
    a
    senior
    executive,
    had
    a
    duty
    to
    the
    board
    and
    shareholders
    to
    protect
    the
    integrity
    of
    the
    company.
    However,
    the
    GC
    at
    the
    time
    appeared
    to
    prioritize
    the
    interests
    of
    the
    CEO
    and
    other
    senior
    executives
    over
    the
    interests
    of
    shareholders
    and
    the
    company’s
    long-term
    health,
    creating
    a
    conflict
    of
    interest.

  • Ethical
    Blind
    Spots.

    The
    in-house
    lawyers
    failed
    to
    recognize
    or
    act
    on
    the
    broader
    ethical
    implications
    of
    the
    company’s
    actions,
    focusing
    on
    legal
    technicalities
    rather
    than
    the
    spirit
    of
    the
    law
    or
    the
    company’s
    ethical
    responsibilities.

WorldCom’s
scandal
involved
the
fraudulent
inflation
of
assets
by
$11
billion,
which
led
to
the
largest
bankruptcy
in
U.S.
history
at
the
time.
The
failure
of
WorldCom’s
in-house
lawyers
highlighted
similar
issues:


  • Lack
    Of
    Oversight.

    WorldCom’s
    in-house
    lawyers
    failed
    to
    establish
    or
    enforce
    appropriate
    oversight
    mechanisms
    within
    the
    company
    where
    the
    fraud
    was
    taking
    place.

  • Failure
    To
    Protect
    Whistleblowers.

    Employees
    who
    had
    suspicions
    about
    WorldCom’s
    financial
    practices
    found
    little
    support
    from
    the
    in-house
    lawyers
    who
    were
    responsible
    for
    ensuring
    that
    whistleblower
    protections
    are
    enforced.
    This
    lack
    of
    support
    contributed
    to
    a
    culture
    of
    silence,
    which
    allowed
    the
    fraud
    to
    grow
    unchecked.

The
Enron
and
WorldCom
cases
were
emblematic
of
a
broader
crisis
of
corporate
governance,
where
in-house
lawyers
failed
in
their
role
as
ethical
stewards.
Several
common
factors
contributed
to
these
failures:


  • Overemphasis
    On
    Legalism
    Over
    Ethics.

    In-house
    lawyers
    during
    this
    era
    tended
    to
    focus
    on
    what
    was
    legally
    permissible
    rather
    than
    what
    was
    ethical
    or
    in
    the
    best
    long-term
    interest
    of
    the
    company
    and
    its
    stakeholders.
    Many
    of
    the
    financial
    maneuvers
    used
    by
    companies
    like
    Enron,
    WorldCom,
    and
    others
    might
    have
    been
    legally
    defensible
    but
    were
    deeply
    unethical
    and
    unsustainable.

  • Weak
    Or
    Compromised
    Independence.

    In
    many
    companies,
    in-house
    lawyers
    were
    heavily
    influenced
    by
    the
    executive
    team
    and
    did
    not
    have
    the
    independence
    necessary
    to
    stand
    up
    to
    improper
    or
    unethical
    demands
    from
    CEOs
    or
    CFOs.
    This
    compromised
    their
    ability
    to
    serve
    as
    independent
    guardians
    of
    corporate
    integrity.

  • Lack
    Of
    Communication
    With
    The
    Board
    Of
    Directors.

    In-house
    lawyers
    often
    failed
    to
    adequately
    communicate
    legal
    and
    ethical
    risks
    to
    the
    board,
    either
    because
    they
    were
    sidelined
    or
    because
    they
    downplayed
    risks
    in
    favor
    of
    short-term
    financial
    performance.
    In
    some
    cases,
    in-house
    lawyers
    were
    complicit
    in
    keeping
    boards
    in
    the
    dark
    about
    major
    red
    flags,
    such
    as
    significant
    off-balance-sheet
    liabilities
    or
    aggressive
    accounting
    practices.


Response
To
The
Wave
Of
Scandals

The
Enron
and
WorldCom
scandals
prompted
the
American
Bar
Association
(ABA)
to
tighten
its
ethical
rules
by
clarifying
the
in-house
lawyer’s
duty
to
the
organization,
strengthening
reporting
obligations,
and
emphasizing
the
in-house
lawyer’s
role
in
preventing
corporate
fraud.


Impact
Of
These
Changes


Prevention
Of
Future
Scandals.

The
ABA
sought
to
prevent
lawyers
from
becoming
complicit
in
corporate
fraud
by
imposing
clearer
reporting
duties
and
enabling
in-house
lawyers
to
break
confidentiality
in
certain
cases.


  • Increased
    Accountability.

    The
    ABA
    sought
    to
    hold
    in-house
    lawyers
    more
    accountable
    for
    addressing
    and
    preventing
    misconduct
    within
    organizations.

  • Stronger
    Ethical
    Culture.

    The
    ABA’s
    rule
    changes
    were
    part
    of
    a
    broader
    movement
    toward
    enhancing
    the
    ethical
    culture
    within
    both
    the
    legal
    profession
    and
    corporate
    America,
    emphasizing
    transparency,
    integrity,
    and
    the
    in-house
    lawyer’s
    role
    as
    a
    gatekeeper.

In-house
lawyers
play
a
crucial
role
in
driving
business
success,
but
they
also
bear
the
weighty
responsibility
of
safeguarding
the
organization’s
ethical
integrity.
While
it
is
essential
to
support
innovation
and
growth,
the
in-house
lawyer
has
an
ethical
duty
to
protect
the
company,
a
duty
that
can
never
be
compromised.
In-house
lawyers
must
always
remain
vigilant,
ready
to
speak
up
when
legal
or
ethical
boundaries
are
crossed.
When
necessary,
in-house
lawyers
must
even
speak
out
to
ensure
the
organization’s
long-term
health
and
compliance.
Staying
grounded
in
the
ethical
rules
is
not
just
a
professional
obligation

it’s
a
critical
safeguard
for
the
organization
and
the
lawyer’s
career.
Ultimately,
failing
to
uphold
these
responsibilities
could
result
in
more
than
just
a
business
failure

it
could
cost
you
your
bar
license.

If
you
are
interested
in
hearing
more
on
this
topic

check
out

Ethics
for
In-House
Counsel:
Navigating
the
Ethical
Responsibilities
of
In-House
Counsel
to
the
Organization’s
President,
Board
of
Directors,
and
Employees,
available
only
via
IHC
On
Demand
(with
CLE!).




Lisa_Lang_2Lisa
Lang
is
an
in-house
lawyer
and
thought
leader
who
is
passionate
about
all
things
in-house. 
She
has
recently
launched
a
website
and
blog
Why
This,
Not
That™
(www.lawyerlisalang.com
)
to
serve
as
a
resource
for
in-house
lawyers. 
You
can
e-mail
her
at





[email protected]



,
connect
with
her
on
LinkedIn 
(
https://www.linkedin.com/in/lawyerlisalang/)
or
follow
her
on
Twitter
(@lang_lawyer).