When Lawyers Cross the Line – Breaking Bad Under the Law

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4 Responses

  1. Pavlo says:

    “These case examples underscore two important points. Lawyers are bound to their professional ethics – that is far different that a chief compliance officer’s commitment to ethical conduct. Business ethics is a lot different than legal ethics. A lawyer’s ethical code is a set of requirements to zealously represent their client’s interests and maintain attorney-client privilege. It is not a prescription for doing the right thing (as we well know).”

    I would argue a little differently. I think it is because either (1) those are bad lawyers or (2) because the management took the final decision despite legal opinion.

    As to lawyers, today simple abstract legal opinion is not enough. A good lawyer has to tailor its advice to the particular business, its evolving model, vision and mission, yearly business goals, and of course risk appetite of the company as well as its code of conduct. Why do you need a lawyer who will give you 5 options, 2 of which do not meet risk appetite of the company and the declared ethical standard and then have another person (CCO) who would say that these 2 options are not fitting the company. You would rather prefer a good lawyer who would take into account the company’s “promisses” in the Code of Conduct from the beginning. It is correct that lawyers are bound by “protecting its clients interests”. However, suggesting an unethical or illegal options is not at all a protection. In contrast, it is bringin more risks to the clients some of which may create bigger problems in the long run. For these reasons I think that it is an incompetent advice when it is not tailormade for a particular client’s needs.

    Of course, GC is a counsel and not the ultimate decision maker. But it is his job to advocate that if we take Option 1 now we will violate our code of ethics and we risk ruining trust with all stakeholders (employees, customers, regulators, investors) if they get to know… This will create turnover of employees and loosing talent, reputational damages, not being able to receive credit from law enforcement authorities for having the Compliance Program, will scare away investors.

  2. Interesting piece Michael, thank you. I agree that your characterisation of in-house lawyers can sometimes be true but it is not a characterisation which fits with their professional rules, in England and Wales at least. Here lawyers solicitors have obligations to uphold the rule of law and the proper administration of justice; act with integrity; not allow their independence to be compromised; and to act in the best interests of each client. Where there is a conflict between those principles, the one which best promotes the public interest in the administration of justice is what trumps. No enough of my bretheren in practice understand this, but some do. In fact, when we looked at ‘mapping the moral compass’ of in-house lawyers we found a range of approaches some consistent with your view and some consistent with stronger ethical leadership. The latter group need help to instantiate a more independent, mature and sustainable notion of professional ethics and the former group need challenging. You can read the research here if you are interested: http://www.ucl.ac.uk/laws/law-ethics/cel-news/2016/mapping-the-moral-compass-report

    I have also been collating examples of lawyer involvement in alleged wrongdoing. It’s not comprehensive but I hope this might provide a useful resource for those interested in the area. https://theethicsroom.wordpress.com/

  3. Luis Rodolfo Cruz e Creuz says:

    so nice to see and read some good truths

  1. November 7, 2016

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