GCs increasingly face ethical dilemmas, survey finds

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A new study has opened up the ethical discussion around the role of GCs.

The study by legal academics in the UK has found that general counsels are increasingly finding themselves in situations that compromise their ethical obligations.

The report by Professor Richard Moorhead, director of University College, London’s Centre for Ethics and Law and Birmingham was based on a series of interviews with senior in-house lawyers, and painted a harsh picture of in-house lawyers struggling to maintain professional independence. 

Trish Hyde, CEO of the Australian Corporate Lawyers Association, said that ethical conflicts arise in-house as a result of lawyers’ dual responsibilities.  She said that while in-house lawyers face this conflict regularly, GCs are good at standing their ground when faced with an ethical dilemma.

“But the evidence that I do know from our research is that in-house counsel are very aware of their obligations, very aware of the consequences,” said Hyde.  “That highly tunned sense of obligation and responsibility actually adds a layer of value to an organisation because they’re bound to be independent and to give honest and fearless advice.”

She said a common ethical dilemma can be the requirement to opinion shop when the business doesn’t like the advice in the first instance.
Hyde suggested that in-house counsel can have causes of action written into an employment contract should a conflict arise.

Hyde strongly disagreed with the report’s suggestion that in-house lawyers can be faced with ethical dilemmas that could make them act unlawfully , but said that opening up the discussion is a good thing, and emphasises that the importance of in-house counsel using their networks to confidentially discuss the issues they are facing.

“When you’re talking the risk appetite of a business, you’re talking about things within the law, you’re not talking about constructing a crime or preparing to commit an unlawful act,” she said.  “I do actually think that the discussion that they are raising is incredibly important because it does need to be talked about and having some evidence and discussion is very valuable.”