On privilege and acting with integrity

Jody Wilson-Raybould’s testimony to the House of Commons Justice Committee gives the in-house legal community an opportunity for a healthy discussion about some key common themes. It reinforces the in-house counsel’s connection to the rule of law. It reminds us of the importance of independent thought, truth telling, having the courage to act with integrity and the ability to navigate difficult relationship demands and issues of importance to our clients. This is a valuable opportunity and a valuable story. In light of solicitor-client privilege, in-house lawyers are rarely permitted to share their perspectives and these kinds of stories.

Jody Wilson-Raybould’s testimony to the House of Commons Justice Committee gives the in-house legal community an opportunity for a healthy discussion about some key common themes. It reinforces the in-house counsel’s connection to the rule of law. It reminds us of the importance of independent thought, truth telling, having the courage to act with integrity and the ability to navigate difficult relationship demands and issues of importance to our clients. This is a valuable opportunity and a valuable story. In light of solicitor-client privilege, in-house lawyers are rarely permitted to share their perspectives and these kinds of stories. 

The rule of law: The rule of law is under attack in the United States and elsewhere by those who choose to ignore its importance in favour of short-term partisan gains. Perhaps this has always been true, but in the context of a sense of a heightened attack, each of us as counsel feels a stronger need to do our part to defend and uphold the rule of law. As in-house counsel, we may feel as though our capacity to uphold the rule of law is diminished. However, Wilson-Raybould’s actions remind us that each time we are called upon to advise or guide our in-house clients in legal matters, there is an opportunity to uphold or subvert the rule of law. 

In the early days of in-house practice, in-house counsel were considered “less than” our private practice counterparts because we were beholden to our clients for our livelihoods. This dependence meant that our perceived ability to provide advice that upholds the law was compromised. Thanks to thought leaders such as Ben Heineman, we now recognize that although the in-house counsel role requires careful navigation of complex issues, relationships and sometimes competing obligations, we are uniquely positioned to uphold and advance the rule of law. In fact, having in-house counsel means that legal obligations and the rule of law have a seat at the organizational decision-making table.  

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Multiplicity of roles: As a minister of parliament, justice minister, member of cabinet, Liberal and attorney general, Wilson-Raybould was called upon to play multiple roles each with their own particular and competing interests. In-house lawyers face similar demands. For example, as a public company GC, we may navigate situations where the CEO with whom we have a good relationship, maybe consider a friend, a person who has helped us personally and professionally, asks us to help solve a problem in a way that contravenes securities laws. The choice may be to expose the CEO in order to uphold the law. There may be consequences for customer relationships and the business. There may be consequences for other colleagues. 

As in-house lawyers, we have an obligation to explore every possible option to solve the problem in a way that upholds the rule of law. This involves the highest level of problem-solving skill. At the end of the day, however, if, after fully exploring all options and understanding all of the interests, we conclude that there is no way to solve the problem in a legally compliant way, we have an obligation to do what Wilson-Raybould did: Be clear that the real client is the corporate entity; understand that the corporate entity’s interests are longer term and that compliance with the law is in the longer-term interests of that entity; take all reasonable steps to encourage the client to comply with the law, and; where the client refuses to act legally, withdraw our services. In the case of the in-house lawyer, this means following the path of Wilson-Raybould and resigning.

Truth telling and the courage to act with integrity: In an understated yet inspiring conclusion to her remarks, Wilson-Raybould said:

So when I pledged to serve Canadians as your minister of Justice and attorney general I came to it with a deeply ingrained commitment to the rule of law and the importance of acting independently of partisan, political, and narrow interests in all matters. When we do not do that, I firmly believe, and know, we do worse as a society. I will conclude by saying this: I was taught to always be careful of what you say because you cannot take it back. I was taught to always hold true to your core values and principles and to act with integrity. These are the teachings of my parents, grandparents and my community. I come from a long line of matriarchs and I am a truth teller in accordance with the laws and traditions of our Big House.

As in-house counsel, we are not independent and we must navigate many personal and professional obligations and interests. This lack of independence does not preclude independent thinking. Nor does it preclude a commitment to truth telling, holding true to values and principles and acting with integrity. Within all of our organizations, we as in-house counsel (particularly those of us in chief legal officer roles) are the voices of the law at the decision-making table. Like Wilson-Raybould, we should carry that mantle with a clear sense of the obligations it imposes.  

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