Making the call from inside the house – Ethics and the in-house counsel

The client is pressuring you to change your advice!

First, you will be under less pressure to change advice if you frame it in terms of risk, rather than in absolutes. So instead of telling the client not to proceed with the contract, for example, set out the (legal) risks they will carry if they do. Be aware that the client has other risks to consider, especially in government – so if the contract could be made more watertight, but at the risk of not delivering on a commitment from the Minister, it may be a risk your client is willing to take. 

Ask the client what they consider to be wrong about the advice. If they can offer something, it may be that they have a point, and you can at least consider it. If not, offer to get a second opinion.   

Changing your advice because of the client’s insistence, rather than because you have reason to revise your opinion, will only damage you professionally in the long run. You will be the first person the client points to when things go wrong.

A colleague is asking you to give them personal advice!

It’s very common for in-house counsel to be asked to give minor legal advice to colleagues. A frequent example is when one half of a couple needs a signature to say they have been independently advised in respect of a document their mutual solicitor has prepared. They’re confident they understand the law and don’t see why you can’t just sign the document for them rather than them have to spend several hundred more dollars on another lawyer.

The short answer to this is that your signature won’t satisfy the requirement. Your practising certificate as a government lawyer limits you to providing advice to government. Not only are you breaching it by purporting to have advised a private client, your client won’t actually have received the independent advice they need. And you’re up a very smelly and uninsured creek if things later go wrong for your client and they point at you. If you’re a government lawyer without a practising certificate, your situation is even more precarious. Witness the unfortunate example of Mr Kellahan¹, an in-house lawyer who advised a friend even though his employee practising certificate authorised him only to work for his employer, and lost his ticket for three years.

I have a short list of options ready for my colleague after I’ve explained this to them. Community legal centres can be a good point of call for things like employment, criminal or domestic problems. If it’s a non-profit seeking assistance, the ACT Law Society Pro Bono clearing house might be the place to go, or organisations that provide subsidised assistance, such as the Arts-Law Centre. If you’re feeling particularly helpful, you can help them formulate the questions to ask.

The client wants me to witness a document I didn’t see them sign!

Yes, you’ve seen their signature before and you know that’s it, but who is it really harming, especially when that very senior and busy executive has already put their pawprint on 200 pages of attachments? I’d like to think your client will be sympathetic to the explanation that this ethically considered a dishonesty breach and therefore professional misconduct, no matter how benign it may seem². If not, you can appeal to self-interest by pointing out that if the validity of the document is ever challenged, it will be vulnerable, as will any decisions it purported to authorise.

Yes, yes, I’ve tried all that but the client’s still annoyed I won’t do what they want. How do I protect myself from career ruin?

First, remind yourself that real career ruin is getting yourself struck off or otherwise limited from practice. That’s not something you’ll readily bounce back from.

Next, take file notes. File notes have saved my substantial posterior on more than one occasion over the past 30 years. Email them to yourself so they’re (a) on the internal system, and (b) time stamped.

Third, work out how you can ethically disclose the situation you are in so that you will have some external verification if it comes down to it. Your boss is the first and most important place to go, but if you aren’t getting support there, other options are an ACTLS Senior Counsellor, and the APS Ethics Advisor. 

Most in-house lawyers will find that these situations can be readily resolved and arise from well-meaning internal clients not understanding the parameters of legal professional ethics. A good pre-emptive approach may be to offer your clients guidance on what is and is not reasonable to ask (and why), by way of a service-level agreement or service charter.  

References

1. Legal Services Commissioner v Kellahan [2012] QCAT 263
2. Legal Services Commissioner v Huggett [2017] NSWCATOD 67