In-house lawyers are not ‘gatekeepers’ of corporate conscience
Speaking to Lawyers Weekly, Canon Australia chief legal counsel David Field said the primary role of in-house lawyers is to positively influence for better business outcomes and culture, rather than being an arbiter of what gets done.
“I think it’s probably both arrogant and somewhat dangerous for in-house counsel to think they can act as the gatekeeper of corporate ethics,” Mr Field argued, referencing a discussion that has emerged in corporate counsel circles.
“They obviously play a very important role in helping the business understand the ethical ramifications of what it’s doing, but we don’t own the business. We’re critical stakeholders, but it doesn’t make sense for us to be the final determinant of what does or does not get done.”
Not only this, but it is dangerous for businesses to delegate their corporate consciences to in-house counsel, he added.
“That suggests they don’t have to worry about that stuff because they’ve given that function to you, and [you’d be the] final arbiter of whether or not something gets done, whether something is ethical,” he mused.
“I think the critical role that lawyers play is being able to reflect back to the business, with clarity, what the ethical ramifications are of things that the business is proposing to do.”
Ultimately, the role of the in-house counsel is to be an influencer for good quality outcomes and better workplace culture, Mr Field said.
“It’s inevitable that in different organisations the in-house legal team will play different roles and have different levels of influence, but the aspiration should be to be a critical stakeholder regarding ethical ramifications of decisions that are being made,” he said.
What this means, he noted, is that those in-house must highlight the importance of compliance.
“It’s very inefficient for a business to rely on the lawyers being there with every decision, every piece of marketing, every decision, meeting, and email. You could never possibly employ enough lawyers to be out there vetting everything and being the corporate conscience,” he said.
“So, it really only works if you have the right cultural settings in place. The legal team has a critical role in relation to the cultural settings, and this has to come from the top down … the general counsel has a strong role to play.”
Mr Field pointed to the Australian men’s cricket team as an example of culture flowing from those in leadership positions, and how the recent ball tampering scandal reaped serious consequences for the careers and reputations for numerous individuals, including junior player Cameron Bancroft.
“As a leader, it’s important to recognise the responsibility that you’ve got to your customers, but also your team members in setting the right example and guiding them, showing them how critical decisions should be made and guiding values,” he concluded.
“As a leader, it’s not just what you do, it’s also what you walk past. The behaviour you walk past is the behaviour you condone, and leaders have obligations to draw a line where necessary.”