Reaching a tipping point

In a historic move, the Commons justice select committee has acknowledged the importance of addressing the needs of in-house lawyers, and made a recommendation to the justice secretary that the Solicitors Regulation Authority and Law Society must do so.

This is not a subject that has attained such a profile before. In-house lawyers have been largely ignored by policymakers and regulators. In fact, a letter of complaint written to the SRA by a group of 33 general counsel in March 2023 was never acknowledged – not, that is, until recently, when it was produced by the committee to the SRA chief executive for his comment. That letter was a call for honesty about the pressures in-house lawyers and their duty of independence come under, and a plea for professional and regulatory support.

Work without fear

So what do in-house lawyers need? The core requirement is articulated in the Mayson Independent Review of Legal Services Regulation. This stated that in-house lawyers ‘have to be able to sound alarm bells without the chilling effect of potential reprisal’ and ‘should not be at risk of dismissal or disadvantage simply for observing their professional obligations’. When in-house lawyers can do their jobs without fear, it is more likely that societal detriment in the form of corporate and institutional misconduct will be avoided.

The Post Office Horizon scandal has gripped the nation. Collective focus is turning to the role of lawyering in enabling the harm that came to hundreds of sub-postmasters, their families and communities. There is anger, sorrow and disgust. Post Office in-house lawyers will soon give evidence to the public inquiry and the heat will rise further. Enforcement action seems inevitable. In-house lawyers are at the very heart of this story. What did they know and when? What did they say and do? Were they heard?

These are not new issues. There have been corporate and institutional scandals for decades. Commentators and private general counsel groups have been covering this for years, including in my early career back at Yahoo! in the 2000s. Professors Moorhead, Vaughan and Godinho published the book In-house Lawyers’ Ethics in 2018, containing extensive research showing that behaviour is linked to incentives and cultural influences (not that we can neatly ascribe bad behaviour to ‘bad people’).

The Mayson review was reported to the then lord chancellor in 2020. Why none of this prompted determined action from public and professional bodies must surely be the subject of a formal evaluation in time.

Adding to the impetus for action are prevailing anti-corruption sentiment in society and calls worldwide for greater responsibility in business and government. The UK legal community is also reeling from the excessive demands, lack of care and toxic culture we all know well.

Then there are the developments in generative artificial intelligence and the increasing realisation – also seen with the Horizon software – that for lawyers to have insufficient interest in or grasp of relevant technology is demonstrably unviable.

There is a Zeitgeist landing. The standards we once accepted will no longer hold.

This is not about well-paid professionals complaining about how hard their life is or bashing lawyers or those who employ them. Nor is it about turning in-house lawyers into the ‘police’ when their sense and commerciality is so critical to sustainable growth. It is about the importance of in-house counsel having what they need to do their jobs well and meet their legal and professional obligations, and the societal harm that can arise if they do not or cannot do so. Not all in-house lawyers experience this in their work, but many do and many will.

So what comes next?

In its recommendation, the justice committee put this issue squarely before the lord chancellor.

Current SRA activity, meanwhile, centres on website guidance, framed as useful rather than mandatory. It is hard to see this satisfying ministers, particularly when the SRA itself reported that 10% of 34,500 in-house solicitors experience pressure to compromise their regulatory duties (one of many such statistics). That alone should be cause for collective alarm, necessitating an independent assessment to understand the nature and impact of that pressure and how to address it.

It is also worth noting that this is not just about solicitors; about 10% of in-house professionals are barristers or from other backgrounds.

Help needed

Alongside guidance, in-house lawyers need support of a practical kind: training; easy access to advice; a willingness on the part of their regulator to back them in a crisis; governance around their reporting, and hiring and firing; putting decision-making in the hands of the client entity, not a single executive, as is the case for data protection officers and company secretaries; and an employment contract that sets the stage and provides a backstop.

Such measures are not complicated, but need focused evaluation, prioritised implementation and ongoing review.

Alongside the inevitable increase in focus on in-house lawyers, what is coming next may well be a growing revolt – from the 33 general counsel who felt able to speak out when many did not, to many in the legal community and beyond calling for systemic change. Tipping points for such movements take only 10% of a cohort, which in the case of in-house lawyers is 3,450 people – exactly the number the SRA reported as being under pressure to compromise their duties.

Jenifer Swallow is a lawyer and adviser to technology and legal businesses, former GC at the fintech unicorn Wise, former CEO of the government-backed organisation LawtechUK, advisory group member of the Post Office Project and the IRLSR, and co-author of the GC 33 letter to the SRA