The role of the in-house solicitor
Introduction
The in-house solicitor's role is as challenging as it is rewarding.
Effective and ethical in-house solicitors need a firm grounding in the law.
They also need high emotional intelligence, bravery, independence of mind, creativity, strong communication skills and the ability to think on their feet.
They must be able to build strong relationships and to deliver sometimes unwelcome messages diplomatically, while maintaining high levels of trust within the organisation.
The in-house solicitor stands at the intersection of the legal and corporate worlds.
They must make the law meaningful to those without a legal background, responding to queries that are varied and not always fully formed, identifying points of risk and providing advice focused on the interests of the organisation, while never losing sight of the public interest and their professional obligations.
The in-house solicitor will need to be comfortable with being uncomfortable. They may never come to the end of their 'to do' list.
In some ways, it can be a lonely job – especially where one is the sole solicitor.
There is a pressure of responsibility and a sense of being 'other' within the organisation and there can be little opportunity to discuss the pressures of the job with other solicitors.
In return, however, the in-house solicitor has the satisfaction of being closely involved with the work and culture of the organisation, seeing the immediate impact of their advice and living with projects from beginning to end.
Good in-house solicitors thrive on influencing for the good of the organisation and the public interest through professionalism and the cultivation of trust.
Professional obligations and the public interest
The Solicitors Regulation Authority (SRA) is the regulator of solicitors in England and Wales, including in-house solicitors.
The SRA Principles set out how solicitors should work. Crucially, these stipulate:
“Should the Principles come into conflict, those which safeguard the wider public interest (such as the rule of law, and public confidence in a trustworthy solicitors' profession and a safe and effective market for regulated legal services) take precedence over an individual client's interests.”
In other words, the duty to the public interest is overriding.
If the in-house solicitor breaches principles that are there to safeguard the public, the claim that they were motivated by their client's (their employer's) interests, whether it is true or not, will not be an adequate excuse.
The in-house solicitor (or the legal function as a whole) has a critical role in taking all possible measures to ensure that the organisation operates within the bounds of legality.
Whatever else the solicitor does for the organisation, they must not lose sight of this important aspect of the role.
Given the complexity of legal and operational environments in which organisations operate, much of the in-house solicitor's role is a matter of understanding and articulating legal risk.
This requires an understanding of risk and an ability to be comfortable working with risk, steering the organisation within acceptable parameters.
The SRA has a suite of guidance for in-house solicitors.
The materials in this framework are intended to be in line with this guidance, and to support in-house solicitors in meeting their professional obligations as set out by the SRA.
Influence and independence
Perhaps the two most important attributes for an in-house solicitor are influence and independence.
These two things can easily be in tension with each other.
In the research carried out to inform the development of this framework, one participant remarked:
“The best thing about being an in-house solicitor is you’re very close to your client; the worst thing about being an in-house solicitor is you’re very close to your client.”
In fact, there is a sense in which you are your client, because your client is the organisation of which you are part. But there is a balance to be struck.
If the solicitor is at too much of a distance – conceptually and functionally distinct from the organisation's decision-making brain – it can be difficult for them to perform their function of providing constructive challenge.
If they are too close, they can lose sight of the fact that their overriding duty is to the public interest.
These two considerations have implications for the way the legal function should be situated in the organisation, including reporting lines and access to the board (or equivalent governance entity).
You will find these reflected in elements of this framework, including the:
But influence and independence also have implications for the way individual solicitors (and the whole team, if there is one) should approach their jobs.
Building strong relationships with stakeholders across the organisation allows the solicitor to:
- identify issues
- understand the context of request, and
- work flexibly with others to find legally and ethically acceptable situations
Building strong relationships requires a friendly and approachable manner, while maintaining independence of mind and the ability to give advice on occasion that might not make the solicitor immediately popular.
A critical friend
In-house solicitors are often told they must be ‘enablers’ and not ‘blockers’.
There are good reasons for this advice, including pragmatic ones.
If the legal function gets too much of a reputation for being ‘the department of “no”’, then it may lead to them being sidelined, disempowered and prevented from fulfilling their function.
But too extreme an interpretation of the advice (barring solicitors from ever resisting an action which stakeholders want to take) will also prevent them from fulfilling their function.
This is because their function is to enable the organisation to meet its objectives within the law, to manage legal risk and perhaps also to contribute in a significant way to the management of ethical risk.
A different conception of the in-house solicitor’s role is needed.
Being a critical friend to the organisation involves the right combination of enablement and challenge, and balance between helping the organisation while maintaining critical distance.
For most in-house solicitors, an outright ‘no’ in response to a stakeholder request will be rare.
More commonly, the solicitor might offer to work collaboratively with the stakeholder to find an acceptable solution.
A good adviser will present a range of options that indicate associated risks and possible mitigations.
But in situations in which, in their judgement, a proposal is legally or ethically unacceptable, they must be willing to be fearless in pointing that out to the organisation.
This is an important part of the duties to:
- uphold the rule of law and the proper administration of justice
- uphold public trust and confidence in the solicitors' profession and the services provided by authorised persons, and
- act with honesty and integrity
Our guide to working effectively and ethically as an in-house solicitor sets out some thoughts on how to do this.
General practice
One of the key ways the work of in-house solicitors differs from private practice solicitors is the wide range of legal issues on which the in-house solicitor is typically expected to advise.
Variety is one of the attractions of the job, and good in-house solicitors thrive when working in this way. But this aspect of the role also carries risk.
In some ways, the in-house solicitor's role is equivalent to general practice or primary care in the medical profession.
The in-house solicitor is the first person to be consulted about a wide range of legal issues.
Just like a GP, they will need to draw on a range of expertise to deal with many of these problems themselves.
However, it is also critical they recognise when they are at the limit of their technical expertise and can bring in external resource to help in more challenging situations.
This requires not only that the solicitor knows when to ask to engage external counsel, but also that they are in a position for this request to be granted.
Our protocol for employing organisations makes the point that access to external counsel will sometimes be necessary, but the in-house solicitor may also need to be ready to make the argument for this resource when internal stakeholders are resistant.
Who is the client?
The simple answer is that the client is the organisation, at least insofar as it is a question about whose interests the in-house solicitor has a duty to act in.
But there are some caveats.
In public sector organisations, the duty to act in the interests of the client should be interpreted as a duty to act in the interests of the public whom the organisation is there to serve, not of the organisation itself.
Similarly, third-sector organisations (such as charities) have a purpose that supersedes the organisation's interests.
A further complication arises where the organisation is part of a group of associated organisations, for example, where a commercial business is part of a group.
In these cases, the solicitor will need to be clear about who their client is for the purposes of a particular piece of work or advice.
In any case, the solicitor should keep in mind that the interests of the organisation (or its beneficiaries) are separable from what stakeholders might consider those interests to be, and are certainly distinct from those stakeholders' own interests.
Individuals may represent the client, in the sense they have the authority to speak on the organisation's behalf in a given context.
However, the solicitor might sometimes judge the individual has misconstrued those interests and may need to insist others are consulted to reach a better understanding.
Adviser or decision-maker?
A key question is whether the in-house solicitor is an adviser only or can also be involved in decision-making.
In practice, organisations and their solicitors may come to different agreements about the extent to which the solicitor should be involved in decision-making.
In some cases, the solicitor may also hold another role that inherently involves decision-making, such as:
- company director
- company secretary
- senior manager
- other regulated role such as data protection officer
Expectations may differ among organisations. However, two things can be stipulated.
Firstly, it is important to clarify expectations, partly because clarity aids accountability.
Consider the case where, following a corporate scandal, the executives say, ‘We were just following the solicitors’ advice’, while the solicitors say, ‘We just advise, the executives decide’.
Secondly, it is important to maintain space within the role to give formal, documented legal advice, which the organisation must take seriously.
When doing this, the status of the advice as advice, as well as its basis and limitations, must be made clear.
Stick to the law?
Another key question about the boundaries of the in-house solicitor’s role is whether their input should only be on legal questions, or also on other matters.
The law is, of course, the core of the role. But restricting the role purely to legal advice (at least very narrowly construed) is rare.
Even giving good legal advice (particularly but perhaps not exclusively when working in-house) involves being aware of organisational objectives and constraints, so advice can be contextualised in a useful way.
This might involve pointing to financial or reputational considerations as well as legal ones in favour or against a given option.
Another key question is whether, or to what extent, in-house solicitors should be asked to advise on organisational ethics matters as well as the law.
Some go as far as to call the in-house solicitor ‘the conscience of the organisation’, but we should perhaps be cautious here.
On the one hand, the in-house solicitor has a set of skills that enables them to have an eye for ethical considerations, and their cross-functional position allows them to see a broad range of issues.
On the other hand, describing the solicitor as the sole conscience absolves others in the organisation of responsibility for embedding ethical considerations in their own decision-making.
In any case, the idea that ‘solicitors do law, not ethics’, goes too far. Solicitors are required to behave with honesty and integrity.
Good law tracks ethics, and the law needs to be implemented in an ethical way.
Legal expertise and ethical expertise are at least overlapping, and good legal advice cannot be given in isolation from ethical considerations.
The needs of the in-house solicitor
There are six factors the in-house solicitor will need to meet the ethical challenges inherent in their role:
- influence
- independence
- knowledge and skills
- support from the organisation
- peer support
- professional support
Influence and independence
We have already seen above how influence and independence are essential to the role.Knowledge and skills
An in-house solicitor needs excellent ethical reasoning skills and judgement, to balance the competing considerations intrinsic to the role and reach reasoned and justified conclusions.
But they also need excellent networking and relationship-building skills to:
- understand how to have difficult conversations without alienating stakeholders, and
- manage the varied demands of the role through good working practices so they can effectively deal with issues and manage risk
Support from the organisation
Support from the organisation is essential.
Without this, the in-house solicitor will not be able to perform their role effectively.
Where the solicitor is undervalued or marginalised, or the organisation finds their advice easy to ignore, or they are pressured to ‘be commercial’ at the expense of professional obligations, problems for that organisation are likely to follow.
Peer support
Peer support from others in the profession is important as a ‘reality check’ when the solicitor finds themselves asked to do, or live with, something they are uncomfortable with.
Informal networks allow for issues to be talked through to find a solution.
Professional support
Finally, the in-house solicitor needs the support of their professional body, to advocate on their behalf and articulate best practice across the profession.The in-house ethics framework is not legal advice but represents the Law Society’s view of good practice in this area.
It is not intended to be the only standard of good practice that can be followed and it is not a requirement that it must be followed.
The in-house ethics framework does not necessarily provide a defence to complaints of misconduct.
While we have taken care to ensure the framework is up to date and useful, we will not accept any legal liability in relation to it.
In this framework
Explore the in-house ethics framework
Each element of the in-house ethics framework has been designed to offer structured support for different aspects of ethical practice.
The framework is intended to be a flexible and adaptable resource for your context and needs.
It can be used flexibly, whether as a reference tool, a basis for discussion within legal teams or various corporate support groups in your organisation, or a foundation for organisational policies and procedures.
We recognise that not every element will be useful in every organisation. You should use discretion in deciding which elements to use.
The elements can be viewed in any order, but you may wish to read the protocol for employing organisations next.
The protocol outlines the role, value and ethical obligations of in-house solicitors, intended for board-level sign-off to ensure clear reporting lines, independence and resourcing.