In-house counsel wanted: lawyers without courage need not apply

Cheryl Foy
Each time a corporate scandal hits an organization like a tsunami, think about what the in-house lawyers were doing before, when it hit, and after.

As our obligations of confidentiality prevent us from telling our side, it will be difficult to build an archive of experience and advice from which to draw.

As interested as I am in advancing the profession and in building a common understanding of the pivotal role in-house lawyers play in building a culture dominated by positive values and a respect for both the spirit and letter of the law, I am also cognizant of our humanity and our limitations. It is too much to expect in-house lawyers to be the only gatekeepers.

Having said that, however, I do expect a lot from us — and I think we should all expect a lot from us.  No lawyer should turn to in-house practice unless he or she has the capability and the willingness to push back against unethical behaviour and to be a leader promoting positive values and a respect for the law.

Because we are in the “house,” we often find ourselves resident in an organization at the beginning as things start to head toward the slippery slope. If we can divert the traffic at the point before others are too invested, and there’s too much at stake, we can do so with the least damage to relationships, egos, and with the least conflict.

I learned many valuable things in law school and one of them was from a brilliant administrative law professor, Sheila McIntyre. I remember, in particular, one lesson in which she talked to us about the scope of our ability to have influence even in situations where we felt we had no power. She told us even in those situations of powerlessness we should not underestimate the potential impact of speaking up. She was absolutely right. A few carefully chosen words can change the direction of a whole meeting and in some cases, perhaps, the direction of a whole organization.

The author of Willful Blindness, Margaret Heffernan, recently blogged: “What academic research into organizational silence shows is that people silence their fears and concerns either because they are afraid of retribution from bosses or co-workers (this is the chief cause in the U.S.) or they feel speaking up would be futile because nothing would change (this is the chief cause in Europe).”

In Willful Blindness — a book that should be mandatory reading for chief legal officers — Heffernan explores how it is so many of us are blind to things we don’t want to see. Of most interest is how employees within organizations acquiesce, whether through action or inaction, to unethical or illegal conduct. Willful blindness is a legal principle in which individuals deliberately close their eyes to a truth or fact. The willful blindness Heffernan describes in her book is at once more complex and more insidious than the straightforward legal principle might suggest.

Heffernan’s book gives many examples and references in describing willful blindness as a psychological phenomenon by which human beings, through a series of small decisions made over a period of time, unconsciously choose to perceive a reality that preserves their own interests. This phenomenon is a powerful defence mechanism allowing us to live with ourselves and preserve our status while permitting unethical and illegal activities to carry on around us.

Heffernan would have us believe willful blindness is endemic in all aspects of our lives — whether it’s the refusal to believe our spouse is having an affair, or to see illegal misconduct in the workplace. She certainly makes an excellent case to support this statement and my personal experience leads me to agree. As in-house lawyers we have to understand the phenomenon in order to help our organizations.

Just as we must be alive to and avoid conflicts of interest, we must be hypersensitive to situations in which we — or others — may be willfully blind. This means understanding our own and others’ innate drives to conform and to obey. Understanding the extent to which we are influenced by others’ perceptions is a powerful tool that allows us to question and re-examine decisions we make in a group context.

As in-house lawyers, it is particularly important for us to think critically but as Heffernan notes (on p. 232 of the book), “such critical thinking is pointless and frustrating without the courage to act on it.”

Yes, we’re back to that again — courage is a pre-requisite for good in-house lawyers. HR professionals and hiring managers should consider how you test the courage and the willingness to dissent of candidates for legal roles within your organizations.

In addition to an awareness of the phenomena, there are other ways to combat willful blindness. In the blog referenced above, Heffernan underscores the importance of corporate culture arguing a culture that encourages dissent and a variety of viewpoints is a culture less likely to fall prey to the dangerous effects of the human propensity to be willfully blind. Again, courage is a necessity.

Organizational leaders must be confident, secure, and willing to accept dissenting opinions in order to create such a culture. Furthermore, these leaders have to have vision and an understanding that disagreement is not disloyalty and an employee’s commitment to doing the right thing for the organization is a commitment to be fostered above all else.

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