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Junior in-house counsel: Ethical challenges and professional obligations to consider

|Written By Barbara De Dios
Junior in-house counsel: Ethical challenges and professional obligations to consider

Working as in-house counsel could mean you might wear many different hats for the benefit of your client. You may be legal counsel on top of other responsibilities — marketing consultant, human resources advisor, corporate speechwriter and note-taker, among other roles.

As junior in-house counsel, you may often notice that, while the training you received in law school could easily be applied to private practice, it isn’t so easily applicable to an in-house environment where relationships and political obligations may be strong considerations in decision-making. As a junior lawyer in this scenario-specific work environment, working in-house might, therefore, be an interesting beast to face, with certain pressures that could possibly cloud the fulfilment of professional obligations.

When faced with an issue surrounding ethics or professional obligations in-house, a junior lawyer may run into certain doubts when considering raising an issue. Will anyone listen to me? Or, I’m a junior way down the totem pole, does my opinion even matter? Or, I’m pretty sure this contract doesn’t protect us, but the operations team really wants to work with this company — will operations be upset if I advise not to go through with it? Or, the general counsel doesn’t even know my name, will they believe me if I report suspected wrongdoing? Or, I just graduated law school with debts to pay, what if I lose my job if I say something?

As a junior lawyer, it may be very easy to merely go along with your superiors’ say-so. So often, our inexperience and need to please, to impress, to secure further training, to hold on to certain roles and promises of promotions are all factors that could possibly, and easily, cloud professional judgment.  

But importantly, despite inexperience or professional naiveté, ethical decision-making in the workplace, in-house or not, is a professional obligation we have agreed to from day one, and it is a consideration to be aware of not just in private practice but just as much for lawyers who work in an in-house environment, albeit in more specific ways.

Junior counsel should, therefore, be cognizant of various scenarios that may be presented in an in-house setting where ethical considerations or professional obligations could be an issue. Certain scenarios may arise where junior counsel may be asked to engage in actions “for the good” of something else and not necessarily for the good of your client, the company:

      For the good of business operations

[em]You’re asked to put together a contract for a new business relationship, but your operations team asks you to “Keep it to a page or less — we don’t want to scare them away!” Yet, after examining the situation, you realize that the circumstances are more complicated than you thought, that a number of clauses should be included for the protection and benefit of the company. However, the operations team insists you cut it down to the length they want, period.

[/em]

Very often, junior in-house counsel are faced with a combination of concerns: a lack of seniority, the belief that no one will listen to what they say and it’s easier to go along with what executives and operations teams want. However, it’s important to find the balance between following business directives and ensuring fulfilment of professional obligations. While you may not want to overly legalize agreements you are asked to put together, your obligation to ensure your client is protected is just as important.

      For the good of individuals, not the company itself

During social conversations, you become aware of issues that could present harm to the company — the threat of key management quitting or launching legal action against the company if certain decisions aren’t made, that personal vendettas clouded decision-making and are now negatively affecting the company. You are asked to keep information about these personal vendettas confidential. You have the trust of management, but you are aware that these self-serving actions could potentially harm your client.

Despite the relationships you may have with individuals in the company, an understanding that your client is the company itself and not the individuals who work for it might not be the easiest pill to swallow. However, should there be a potential for serious threat against your client, the obligation to speak up and protect your client may still be considered your responsibility, particularly if you are very much aware of the issue.

      For the good of a deal or transaction

You are working on various transactions that could help your client financially. However, after speaking to various internal teams, there are concerns that transaction documents are not accurate and could quite possibly be dishonest. Yet, your client has asked you to move along with the transaction, saying it’s important for the company to close the deal as soon as possible.

Despite client instruction, junior lawyers should consider the professional obligation to act with honesty and integrity, despite how unpopular blowing the whistle might be. Speak to key executive management if there are concerns of wrongdoing, and speak with the board of directors should management ignore your concerns.

Your duty, your professional obligations

As a junior lawyer, it’s understandable to highly value your job, particularly if it holds a promise to something more — a promotion, career development, salary increases, seats on boards, positions a step above junior associate, referral sources. Much of what young lawyers worked so hard for, and much of what they hope to achieve, may be on the line.

However, while these concerns could be of great importance to any lawyer, junior or otherwise, an important consideration above all else is this: We have chosen to enter a profession that holds us to a high bar when it comes to ethical standards, choices and behaviour — a valuable consideration for in-house counsel, particularly when faced with internal pressures.

Barbara De Dios was called to the Ontario bar in September 2016. She can be reached at barb.dedios@gmail.com


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