In-house must stand up to groupthink

Joshua Rozenberg’s 5 January article – ‘Post Office scandal: lawyers in the frame’ – asks the question who was to blame. He too easily excuses the in-house Post Office lawyers when noting that ‘some had spent decades working in an organisation that had been prosecuting people for hundreds of years, [and] had very little idea of the safeguards that had become standard practice in the rest of the criminal justice system’.

 

This analysis does not compute. Lawyers are trained professionals. They are trained to ask the difficult questions and carry out due diligence before forming their own opinions. It naturally flows from the value of integrity (a cornerstone of the profession) and a level of independence that must exist even as an in-house lawyer. In-house counsel do not prostrate themselves at the foot of their employers and simply do their bidding. The fact that they have been steeped in an institution and its practices for a long period of time does not exonerate them from examination.  

 

As a former general counsel I can comment with some ‘inside knowledge’. I always saw myself as the backstop to many executive decisions. I had the power to say ‘no’. And while it is not my role to judge who is to blame in this current crisis, my key point is that there is now a real opportunity for the Solicitors Regulation Authority to ask whether the relationship between in-house counsel and the business is sufficiently robust.  

 

There have been too many corporate scandals throughout the decades. We must question whether these could have been avoided, or at least mitigated, if a clearly defined oversight and guardian role was embedded into the role of the in-house general counsel.

 

The in-house general counsel needs to operate with a level of independence from the executive, a role not unlike that of the internal audit function. This would underpin their ability to question, challenge and, refreshingly, to say ‘no’ to a demanding CEO/member of the C Suite. There needs to be someone who can stand up to the systemic and often illogical groupthink that pervades corporate life and they need to know that the regulator has their back.

 

I know that many in-house counsel may disagree – they are probably members of the executive team, remunerated and incentivised in the same way as their fellow executives – but corporate failures where all stakeholders lose out (and society as well) provide sufficient reason to take a closer look. As this Post Office Horizon debacle unfolds, surely someone in the SRA must be asking this question.

 

Nicholas Deeming

Solicitor and former general counsel

Kew, London

 

 

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