There are over 34,500 in-house solicitors in England and Wales, across more than 6,000 organisations.
Earlier this month, the Solicitors Regulation Authority published the results of its latest ‘thematic review’ into the sector, which involved survey responses from more than 1,200 in-house counsel, as well as in-depth interviews with in-house solicitors in both the public and private sectors.
The resulting report from the SRA was generally positive about the sector, with a few words of warning. But since it was published, a group of 20 senior general counsel have criticised the SRA’s interpretation of the underlying data as painting too rosy a picture. They are concerned that the report does not set out plans for enough action and support from the regulator to help struggling in-house lawyers who are under pressure to compromise their regulatory obligations.
Being able to stay independent and uphold ethical and regulatory standards is a crucial issue for in-house lawyers. According to the SRA report, most solicitors working in-house do feel that their independence is valued. It notes that the majority said they were confident that pressure from their organisation would not affect their ability to provide objective and impartial advice, and that they could act ethically under pressure.
But worryingly, the report also revealed that some in-house solicitors are struggling to balance their duties with their organisation’s priorities.
Five per cent of respondents to the SRA’s survey said they had experienced pressure to suppress or ignore information that conflicted with their regulatory obligations. And 10 per cent said their regulatory obligations had been compromised trying to meet organisational priorities.
Asked whether they had ever had to explain to their employers that their wider regulatory duties may sometimes outweigh their duty to their employer, some 36% of respondents said ‘yes’. Meanwhile one senior leader in the private sector described the role in the following terms:
‘Working in-house is a marriage not a fling. It can be hard to maintain independence when you are an employee, particularly if you feel like you are going against the will of the organisation. This dynamic can make you feel more vulnerable as it’s harder to walk away.’
The SRA report also dealt with the issue of volume of work. According to the regulator, where in-house solicitors feel under pressure, it is commonly linked to significant and increasing workloads.
In the SRA research, 62% of respondents felt that managing workloads was currently their biggest challenge, and 16% found their current workload overwhelming – which is surely a big worry.
One respondent said: ‘Constraints mean the legal team have to decide between urgent commercial projects with heavy senior executive focus, and spending time on managing regulatory risk and compliance programmes. There is insufficient resource to do both.’
Going forwards, the SRA report said that the regulator would be supporting the in-house sector with some tailored guidance, as well as dedicated new online resources and a series of events to share best practice.
However, the group of 20 general counsel who have criticised the report (https://bit.ly/40Pphjt) would like to see much bolder steps.
These include a programme of ‘active outreach’ to CEOs and boards of client-employers to ensure that they fully understand the professional obligations of their lawyers; and the inclusion of a summary of professional duties into the terms of an the in-house lawyer’s employment contract.
The overall message is that in-house lawyers need to know that their regulator has got their backs. The clearer their obligations are, and the more this is brought home directly to employers, then the easier it will be for in-house counsel to maintain the independence that is so important both for the profession itself, and for the wider public.
April 11, 2023
Insights
