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Is the GC the Conscience of the Company? Maybe Not

January 24, 2013

4.Finally, always remember who the client is and be an advocate for the best long-term interests of your client.

Just as the conflation of legal advice with business advice easily entraps many in-house lawyers, so too do many lawyers cause themselves much trouble by forgetting who the client is. Your client is the company, period, full stop. Not the business leader you counsel, not the business unit you advise, not the transaction on which you work. In my years of practice I can say with certainty that more trouble, consternation, and ruined careers have come from violating this one rule than any other.

Now, let me touch on the final topic: This new notion that the general counsel should be the conscience of the company. Everyone now accepts that the general counsel should be an essential adviser at the senior executive table. As with many good ideas, however, this description has become, for some people, merely a launching point for a very different and more expansive vision.

Like the proverbial frog in the hot water who does not realize his peril until it is too late, I think that some of these descriptions of the general counsel will, by increment, create a distorted set of expectations that may actually diminish her voice. Consider Ben Heineman's belief that the in-house counsel should be a lawyer/statesman. I confess to being slightly uncomfortable with this notion, but I can accept that term insofar as it attempts to capture the idea that the general counsel can play a special role as the executive suite's honest broker. After all, a trusted general counsel is often the natural intersecting point for the resolution of disagreements among other senior executives—not only because the CEO often views such disputes with all the enthusiasm of a parent asked to resolve a fight between children about crayons, but also because the other executives come to the general counsel in what they believe is a protected, perhaps even privileged, context.

My discomfort increases considerably, however, with those who describe the modern general counsel as the "guardian of corporate integrity," primarily because I have no idea what that means. And I explicitly part company with those who now assert—and there are many—that the general counsel serves as "the conscience of the company."

Few concepts could be as destructive to the lawyer's right to sit at the senior table as to place around the lawyer's neck the millstone of being the company's "conscience." And even more debilitating would be the senior team's perception that a general counsel actually believed it, or even worse, acted like it. I cannot imagine what it would be like to act that way, but it certainly takes no imagination for me to say that if I did, my tenure as general counsel would be short-lived—and justifiably so.

This notion of being the company's conscience is flawed in so many respects that it is hard to know where to start, but let me try. First, despite appearing to be the product of modern thinking about the lawyer's role, it actually reflects the long-rejected thinking of lawyers as some elite group of illuminati or philosopher kings, dispensing rules and prescriptions to the benighted. It reflects a lawyer-centric view that assumes we have special insight into, or perhaps even a monopoly on, ethical rights and wrongs.

There is nothing in my training as a lawyer that makes me better or worse suited on matters of conscience than any other senior leader at my company. For me to claim such a position, or pretend to take such a role, would give rise to well-founded resentment and criticism from my peers. At the senior table at our company I see a number of gifted men and women, each of whom has, among other positive attributes, a well-formed conscience and a personal compass well attuned to our company's values and beliefs. They need me to be many things for many reasons, but serving as their conscience is most definitely not one of them.

I am in no way eschewing a lawyer's ethical responsibility, nor am I ignoring the fact that legal ethics are often wholly consistent with broader ethical principles. I am merely recognizing that when it comes to business or societal ethics, a lawyer is but one voice, and not necessarily the authoritative voice. The company's ethos, its moral compass, should be ingrained in every person and every function, as part of the corporate DNA. Everyone is part of the institution's moral construct, and everyone is responsible for the execution of the company's values.

Robert Weber has been IBM's general counsel for the past seven years. Before moving in-house, he spent 29 years in active trial practice at a large law firm.

This article originally appeared in Corporate Counsel under the headline “Declaration of Independence.”

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