I recently gave a speech on the issue of lawyer independence, particularly as it applies to corporate counsel. Having practiced law for nearly 40 years, as both an in-house and outside counsel, I certainly have views on this topic, some of which may be within the legal mainstream, others less so. Either way, the independence of in-house counsel has been under scrutiny for some time, and the issue remains worthy of careful and critical examination.
Before I set forth my own observations, I want to distinguish between the terms "independence" and "objectivity." Lawyers know that our advice must be independent in the sense that it must be given to our client free of improper influence or inappropriate external considerations, including, perhaps especially, personal considerations. We also know that we are not wholly independent from our client, because we are professionally obliged to represent our client's interest as fully as the law permits.
On the other handand here is a difference that makes a differencelawyers have a special responsibility to maintain a sense of professional objectivity, and avoid becoming intoxicated by the enthusiasm of our clients for a certain result.
With that in mind, let me set out four basic propositions:
I reject the notion that in-house counsel are under greater threat to independence than lawyers at outside firms. I do not believe that objective data supports that notion, nor is such an assertion consistent with my experience.
One real threat to the perception of in-house counsel's independence comes from in-house counsel themselvesby too quickly referring controversial or high-profile matters to outside counsel.
The general counsel does have a unique role to play in the C-suite. I'll offer thoughts on what any senior in-house lawyer should do to demonstrate that he deserves to be a full participant in the company's senior deliberations.
Finally, I will set forth my objections to the assertion, often recited these days, that in-house lawyers are there to serve as the conscience of the corporation. There are many roles for the general counsel to play. Being the corporate Jiminy Cricket is not one of them.
No greater threat
Let me start with my belief that in-house counsel are under no greater threat to independence than lawyers at outside firms. In saying this, I am not minimizing the threats to an in-house lawyer's obligation to render independent legal advice. Those threats are real and lurk in many places. Rather, I am rejecting the notion that the threats are demonstrably greater than those presented to other lawyers.
In fact, these concerns are neither limited to in-house counsel nor are they new. To illustrate, let me quote Felix Frankfurter, who penned a memoir more than 50 years ago that included a richly descriptive portrait of how a lawyer can lose his professional soul in service to a demanding client. Regarding a railroad tycoon and the "boot-licking deference" paid by his cadre of lawyers, he wrote: "If it means that you should be that kind of a subservient creature to have the most desirable clients, the biggest clients in the country, if that's what it means to be a leader of the bar, I never want to be a leader of the bar. The price of admission is too high."