If general counsel advise an ethical response to wrongdoing and are ignored, it undermines their ability to do the core job of managing risk.
Here’s something that’s easier said than done: being prepared to walk away from, rather than be complicit in – or even turn a blind eye to – something unethical. But unless one is willing to, it’s questionable how much value you bring to the table as a lawyer – your industry only, but not your judgement also.
I hadn’t realised how strongly I felt on this issue till a roundtable discussion I took part in about four years ago involving general counsel, and chaired by Gazette columnist Joshua Rozenberg.
The conversation turned to instances of wrongdoing – in particular what to do if you advise or recommend an ethical response to wrongdoing, and are disregarded.
Rozenberg asked what I thought. ‘You have to resign,’ I replied. This seemed unfair to some present – after all, as the person paying the penultimate price you were also the good guy.
But actually I can’t see a way around it. Not as an instant hissy fit performed on the elevated stage of moral high ground.
But really, if as a GC or senior in-house lawyer, you’ve used the considerable skills at your disposal – using political knowledge of the business, advising on risks in commercial language that’s aligned with the company’s stated strategy, or even alerted the CEO (though the CEO may be implicated) or independent board members – then you’re best off getting out, and letting any regulators or the police who may be interested know why you’ve left.
That isn’t just easier said than done because we all have household bills to meet – the pressure corporate counsel I know who have been in this position were put under wider pressure. Colleagues told them they’d be endangering jobs, or a project the lawyer had personally invested time in.
That’s a hard day at the office.
But if, having tried everything reasonable, you’re still not being listened to, you can’t do your core job of managing risk. You lack the ability to add value in a fairly fundamental way.
It is unfair that you have to walk – I can see that. And maybe nothing will happen when you do, which at the time will make you feel doubly impotent.
But the alternative – stuck in a job where you are both deeply compromised and have no real influence – seems by far the unhappiest option of all. Not least it leaves you open to being further undermined in your work.
Eduardo Reyes is Gazette features editor