Stuart Ponting, partner at Walker Morris, discusses the top three tips for lawyers’ ethical obligations and how to ensure the business is following their lead.
Recent events and scandals have highlighted how easily in-house lawyers and general counsel can find themselves in the spotlight defending their own ‘ethical approach’. We’ve heard a lot of ‘that could have been us’ from our clients and we’ve seen a lot of public criticism of lawyers (and their employers) failing to meet the ‘ethical standards’ expected of them.
The role of a senior in-house lawyer is evolving. Once primarily focused on legal advice, you’re now involved in all areas of the business – compliance, ethics, risk, and client engagement to name but a few. Who knows, you might have even been referred to as the ‘ethical guardian’ for your organisation once or twice.
Lawyers’ ethical obligations are not new, but the acute focus on them is. So, how can you get to grips with the attention this ‘new’ ethical dimension your work has and, perhaps more importantly, how do you ensure your business is following your lead? Here’s our top three tips:
1. Know your own ethics
Commentators often talk about ethics as if there is an oracle that you can consult and pick up a handy set of prepacked ethics. Bad news. This assumes everyone’s ethics are the same and clearly, they aren’t. So, you have to define (at least your own) ethical standards, from the outset.
However, for lawyers, this can be pretty straightforward. Make sure you’re 100% on top of the SRA Code of Conduct because this is your baseline. As a GC or senior in-house lawyer your professional conduct rules provide your mandatory ethical standards. So whatever other standards and requirements you set, understanding and meeting the requirements of the Code is a fundamental requirement.
However, for many lawyers, their familiarity with the Code will have diminished over time. If you lead a team, you need to ensure they remain familiar with the Code as well – you are only as strong as your weakest link.
Alongside the Code, your organisation may have its own set of ethical standards. That’s great, but when business goals conflict with the Code and its ethical standards, you must prioritise the latter. If your business doesn’t have its own, you could use the Code as the basis for a business discussion about what its ethical standards might be, thus avoiding an unhappy divergence down the line.
2. Foster a visible ethical culture
Whilst ethical standards are not new, their prevalence in conversations certainly is, and this might trigger some resistance. To manage a looming potential conflict in this area, given this issue isn’t going away, now might be the time to take the bull by the horns. Start early and lead by example. Try and stimulate the ‘ethical debate’ now so it has a real purpose.
Don’t worry about giving everyone a copy of the Code, that’s probably not going to help much, but if you do the right thing, and can be seen to do the right thing, it will be noticed. Talk about ethics as part of your ordinary conversations – using words like ‘ethics’ and ‘standards’ might put people off (for now), so adapt your language and talk about ‘doing the right thing’, ‘ accepting responsibility’, and ‘guiding principles’ instead.
Demonstrate that you walk the walk. Share your experiences and judgements with colleagues. Ask for them to contribute to your own ethical tug-of-war when those rather tricky questions arise – share your thoughts and get theirs too. Leading and fostering a culture where these issues are prioritised, and shared positively, encourages others to take the same approach, with confidence.
Find ways to make it known that you value transparency, integrity, and accountability within your team and the broader organisation. Importantly, you should create channels for reporting concerns without fear of judgement or retaliation.
Consider developing a training programme that emphasises ethical decision-making – definitely for your team, but potentially for the rest of the business, but again, perhaps one step at a time so you can control some of the narrative.
Use case studies to encourage people to apply thinking to scenarios that feel very real and give them the time and space to think critically about ethical dilemmas. Reinforce the message that ethical behaviour benefits everyone in the long run – there are enough real-life examples of where behaviour has damaged reputations and lives to bring the point home.
And don’t be tempted to assume that this is an easy or straightforward subject. Its not. It needs careful management and strong leadership to achieve positive progress.
3. Collaborate with the board and senior leadership
You need to bring the team with you. Engage with the board and your executive leadership on the topic and be an advocate for ethical decision making. If this is all a bit too radical, build up slowly, bring them on the journey with you. You might want to start with some hypothetical situations and explore the ethical dilemmas they raise before you start the ethical revolution.
Be a consistent ‘voice’ on these matters whenever you can. You might even want to undertake an exercise to ensure that all corporate policies align with your developing ethical framework. Bring to leadership’s attention any conflicts with existing policies. Where you identify possible conflicts, be robust in addressing them, and be explicit in describing what the potential consequences could be if things are left as they are but don’t forget this is a journey that some will make far more quickly than others.