The role of the in-house solicitor: protocol for employing organisations

Introduction

This protocol clarifies expectations between the in-house solicitor and their employing organisation.

It represents the Law Society's view of best practice for the employment of in-house solicitors.

We recommend this protocol is presented to the central guiding entity within the governance structure of the organisation for sign-off.

In the private sector, this is typically the board of directors.

This protocol:

• clarifies the role of the legal function and its value to the business
• enables solicitors to reference an agreed framework when the business makes demands that could conflict with legal, professional or ethical obligations

The role of the legal function

The legal function in an organisation could be a legal team or a single solicitor.

In either case, the role of the legal function is to:

• support organisational decision-making and success, responsibly and in line with the law
• ensure the efficacy of the legal function and related process across the organisation, and
• manage legal risk within the organisation, also taking into account financial, reputational and ethical considerations

In doing so, it supports the whole organisation, both at an operational and a strategic level.

The solicitor acts as a critical friend to the organisation, represented by the board or equivalent (if there is one) or its owners (if there is not), enabling it to meet its objectives within the law.

Professional obligations

Solicitors have a duty to act in the best interest of their client, which for in-house solicitors is the organisation, not any single leader within it.

(In public and third-sector organisations, the situation is more complex. The client is still the organisation, and the solicitor still takes instructions from the client.

But the solicitor will also take into account the interests of the people the organisation is there to serve (for example, the general public or the beneficiaries of a charity) and in the case of the civil service, the Civil Service Code.)

Solicitors also have professional duties. These include a duty to uphold the SRA Principles, which safeguard the public interest.

Where these conflict with the duty to act in the client’s best interest, the duties which have the purpose of safeguarding the wider public interest take precedence.

A more comprehensive explanation of solicitors’ professional obligations is available on the SRA website.

Best practice

To enable the legal function to fulfil its role in accordance with professional obligations, the Law Society recommends:

1. The employer does not ask solicitors to act in a way that conflicts with their professional obligations. Such commitment is included in employment terms, alongside the commitment to provide insurance and/or costs coverage for claims and detriment suffered by lawyers in the proper fulfilment of their duties
2. The legal function has reporting lines which empower it to advise the organisation directly and effectively on legal matters. Ordinarily, this will mean the most senior lawyer reporting to the most senior executive within the organisation (for example, the chief executive officer or managing director)
3. The most senior solicitor has access to the governing mind of the organisation. Where the organisation has a board of directors, the solicitor should have:
   • access to board information
   • the option to attend board meetings in full, and
   • an open channel, or where practicable a reporting line, and regular access to the chair and the most senior independent director, including one-to-one meetings on request
4. The organisation will not seek to terminate the employment of the most senior solicitor without the agreement of the organisation’s governing mind (for example, the board)
5. The legal function should:
   • be provided access across the organisation
   • be consulted at an early point on significant projects and programmes with potential legal implications, and
   • have continued input into these projects and programmes at their discretion, including providing a view on whether or not a project has legal implications
6. The legal function should be granted access to the resources it requires to perform its role effectively. This includes:
   • staffing proportionate to its responsibilities
   • access to legal databases, technology solutions and similar resources as required (for example, Practical Law, PLC Magazine, LexisNexis)
   • funding for continuing professional development (CPD) in accordance with the requirements of the SRA and the ability to carry out CPD in work hours
   • resources to engage external legal counsel on matters where the relevant expertise does not exist in-house
7. The legal function, under the supervision of the most senior solicitor, should compile and retain a record of material legal and ethical issues encountered as part of an annual learning and development record, and this should be reviewed by the board (or equivalent) at least annually