Just before completing this column, I read that the general counsel of Yahoo Inc. announced his resignation effective July 9. The article about the resignation states, “with the general counsel’s impromptu exit, all eyes are back on the company.” As resignation has to be the last resort for any general counsel, I wonder how many people have any appreciation for the internal battles fought and the pressures faced by any GC in the period before he or she makes the decision to resign.
We see much in the media about relationships between powerful people (such as Rupert Murdoch and Tony Blair) and old boys’ networks as having a profound effect on whether or not individuals are investigated or held accountable. What is more difficult to pin down and quantify is how the daily social pressures at the office affect our ability to do the right thing at work, to confront others when necessary, and to call things out as being ethically wrong.
In-house lawyers have legal, professional, and ethical obligations to their organizations and fulfilling these obligations is an ongoing challenge requiring vigilance in all aspects of the in-house lawyer’s work life.
One of the most difficult things about being an in-house lawyer is the realization that these obligations make it difficult, if not impossible, to have close friends in the workplace. Where the interests of the organization conflict with the interests of a workplace friend, the obligations to the organization for which we work necessarily trump the obligations of trust and loyalty to any workplace friends.
If we make friends and those friends err or are guilty of misconduct, in-house lawyers must be able to do the right thing by the organization. As importantly, we must be seen by our colleagues as being able to do the right thing. We cannot afford to have our internal clients either avoiding us or doubting our advice because we are not perceived as capable of being objective because of our relationships with one or more of our colleagues.
Our colleagues’ behaviour will challenge us daily and there are a variety of ways in which a lawyer’s friendship with a colleague may compromise the lawyer’s ability to do her work.
Colleagues who perceive themselves as friends may take liberties
Several years ago, my former organization was planning a round of employee terminations. Despite best efforts, there was much activity between the legal and human resource departments and rumours were circulating about the impending layoffs.
One morning, a fairly senior employee came into my office — let’s call her Sandra. Sandra was someone with whom I had socialized on occasion. She asked me a question about resourcing on a long-term project we were working on. I answered the question, and then she left my office. Later that morning, a friend of Sandra’s stopped by to say that as I had confirmed that Sandra wasn’t going to be fired, could I do the same for her.
I quickly realized that Sandra hadn’t really been asking about the project at all — her questions were designed to gauge my reaction. Sandra judged (rightly or wrongly) that if her employment was being terminated, she would have been able to tell by my reaction to her question. Needless to say, I responded to Sandra’s friend by saying that I had shared no information with Sandra and that I had none to share with her either.
Colleagues who perceive themselves as friends may press for the “inside scoop”
At least two of my previous boards have preferred that I remain during in camera sessions to provide legal advice or simply just to ensure I understand the context of decisions later taken on the record. As in-house lawyers, there are many situations in which we have access to highly confidential information, including the pending termination of the employment of fellow executives and even the CEO.
Being in possession of confidential information means that in-house counsel will face pressure from their colleagues and their managers to share confidential information “just between us.” Where colleagues feel threatened, they have a greater need for information and are very willing to apply increased pressure to get that information, including playing the “I thought we were friends” card.
Colleagues who perceive themselves as friends may feel they are immune from scrutiny
I have been involved in a variety of situations that put me in uncomfortable situations with my colleagues. These situations include interviewing colleagues about the circumstances giving rise to threatened or actual litigation, where getting the full facts is essential to making an informed assessment of the strength of the legal case.
In these situations, employees feel threatened and invariably wish to present the information in a way that puts them in the best light. These situations also include internal investigations where there are allegations of harassment or discrimination, or where a third-party agency such as a securities commission has requested information relating to potential breaches of the company’s obligations.
I have had to confront colleagues about inconsistencies, omissions, and lies. Where these interviews or confrontations involve colleagues with whom I have friendly relations, I have encountered pressure to forgo rigorous questioning on the grounds that “this is me you’re talking to . . . surely you don’t believe . . .”
Build relationships but don’t lose perspective
If you have read my previous columns, you will know that I am a strong believer in building relationships in the workplace. This column should not be read to suggest otherwise. Instead, it really is a call to in-house counsel to be aware of negative consequences arising when good workplace relationships turn into friendships.
I have friendships with work colleagues who understand my professional obligations and who value the friendship enough that they work hard to ensure that they don’t put me in a difficult position — they don’t ask for confidential information and they don’t look for special treatment. The other side of the coin is that the in-house lawyer has to be aware of his feelings and has to do his best to ensure that those feelings don’t cloud his judgment about a colleague who is also a friend. Any lawyer who feels his or her judgment is compromised must seek objective input before advising.