Are GCs More Than Just Legally Trained Executives?
This commentary is a response to previous CorpCounsel.com articles discussing the ethical responsibilities of the general counsel within the corporation.
Truly independent professional judgment can be best given in an atmosphere in which the lawyer is truly independent.
In re Drake, 642 P.2d 296 (1982)
Based on my work for the Lawyer Independence Project (LIP), Id like to join the discussion about the role of the general counsel in corporate ethics and offer my views regarding the recent contributions to CorpCounsel.com by Robert C. Weber (Is the GC the Conscience of the Company? Maybe Not) and Ben Heineman Jr. (General Counsel are One Conscience of the Company).
LIPs work is built on two basic and interrelated principles, both of which are firmly rooted in the literature and the codified ethical norms of the legal profession:
- Due, among other things, to the Officer of the Court (OC) status of the American lawyer, we are uniquely charged with maintaining our intellectual, moral, and practical independence from our clients and from all other inappropriate influences.
- Apart from the context of ongoing litigation, U.S. lawyers are prohibited from engaging in zealous advocacy on behalf of our clients, as that phrase is commonly understood. Instead, in the context of the work that is undertaken by the vast majority of lawyers (particularly in-house counsel)transactional and regulatory issues, along with forward-looking structuring and planningwe are charged with balancing the interest of our clients with the legitimate interests of any and all other stakeholders, including government and society at large, and serving not only the letter of the law, but its spirit as well.
With regard to Webers article, I note the following:
His central point appears to be that in-house counsel should not be viewed as the conscience of their company, because requiring such a high level of accountability to the greater society would result in the in-house lawyer losing his or her place at the senior executive table. Weber describes a corporate environment where a lawyer acting out his or her OC role is justifiable grounds for dismissal. Exercising actual professional independence, he appears to argue, is an untenable millstone for the lawyer in the corporate setting.
Thats a sad view indeed.
In his response to Webers assertion that in-house lawyers are not their corporations conscience, Heineman advocates a slightly more moderate view. While he maintains that the CEO or the board of directors, in their role as a companys substantive deciders, are the true conscience of the company, Heineman allows that the general counsel can play some ill-defined role in guiding the ethics of the company. They, seemingly along with every other employee of a company, can raise issues, set out options, make recommendations, and guide the culture, values, and integrity of the corporation. But ultimately, according to Heineman, unless the action is unlawful, general counsel, having spoken their piece, should defer to the CEOs discretion.
From LIPs point of view, both writers miss the fundamental issue. They are trying to pound a square peg into a round hole.
In the end, there is no difference between Webers view that GCs are decidedly not the conscience of the corporation, or Heinemans view that GCs are maybe a bit of the corporate conscience. The distinction doesnt matter, because neither Weber nor Heineman is describing lawyers acting in their role as lawyer. And if that is understood, it doesnt matter what they do in the context of legal ethics. They are businesspeople, and their role is to further the interests of the corporation in any arguably lawful manner they see fit.
There can be no doubt that intelligent, experienced, well-intentioned, legally trained executives have a positive role to play in the corporate arena. They, to parrot Heinemans approach, can raise issues, set out options, make recommendations, and influence corporate policy. But by the same token, there is no rational basis to conclude that these executive are lawyers in any but the most superficial sense.
While this distinction may appear meaningless or even insulting to these executives who view themselves as lawyers or even attorney/statesmen, I suggest that the distinction is crucial. It is axiomatic that with great rights come great responsibilities. And if Weber and Heineman stand for the proposition that GCs have no unique, identifiable responsibilities to society at large, then neither these GCs nor their clients should enjoy the rights of, say, the attorney/client privilege, or the advice of counsel defense. GCs that function this way are no better (or worse) than the MBA down the hall.
Thats no sin. They just arent lawyers.
Nicholas D. Thomas is a lawyer, mediator, and the creator of the Lawyer Independence Project, an advocacy and education venture. Contact him at email@example.com.