Maybe it was easier in the old days for in-house lawyers to be the de facto conscience of their client organizations. Lawyers have a keen sense for the peril and risk that lurks just past the next opportunity, and accordingly had a great influence on how their organizations exercised their discretion. Wise counsel was both sought and dispensed by general counsel for decades. Assuring corporate compliance with governing law and regulation was a natural part of a corporate lawyer’s duties.
Many corporate counsel still serve this traditional function, yet with increasing frequency, lawyers are succumbing to economic, structural and behavioral pressures to stay in an increasingly narrow lane demarcated by the law’s four corners. There is an emerging consensus that lawyers have become the “loophole finders” within organizations. The growing academic literature on the shifting landscape for lawyers is well documented (and produced) by the Center on the Legal Profession at Harvard Law School. The authors of the paper “Lawyers as Professionals and as Citizens: Key roles and responsibilities in the 21st Century” mark the various contextual challenges lawyers confront in the current marketplace. Their analysis highlights that one consequence of the increasing competition in the legal profession is the pressure on lawyers to deviate from the ethical duties of lawyering. In particular, the rise in size and prominence of in-house legal departments is at the center of the continued shift in legal practices. Initially, departments were expanded as a response to increased costs of services offered by law firms, and now they pressure those law firms to increase their own efficiencies and reduce their costs.
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