In-house Lawyers Research Articles

Sarbanes-Oxley and Firm-Specific Knowledge: Evidence from Inhouse Lawyers

Sarbanes-Oxley and Firm-Specific Knowledge: Evidence from Inhouse Lawyers

Relationships between workplace characteristics, psychological stress, affective distress, burnout and empathy in lawyers

ABSTRACT Recent studies indicate that lawyers are at greater risk of experiencing stress, anxiety, depression and burnout symptoms than other occupational groups and the general population. Opinion pieces have suggested that workplace culture and law practice characteristics can explain the distress. However, no empirical studies have considered the potential impact of the factors on lawyer’s mental health or evaluated the potential impact of lawyer’s mental health on their clients. Empathy is an essential component of legal practice especially during client interactions; and prior research in doctors has shown that stress, anxiety, depression and burnout are associated with low empathy. This study examined the relationship between workplace characteristics, psychological stress, affective distress (i.e. anxiety, depression), burnout and empathy in lawyers. Private practice and in-house lawyers (n = 200) completed a questionnaire asking about work-stress, supervisor and organisational support, stress, affective distress, burnout and empathy. Analyses showed that psychological stress and burnout in lawyers was related to greater work-stress and a lack of perceived organisational support, and in turn, psychological stress and burnout were associated with low empathy in lawyers. Results suggest that stressful and unsupportive workplaces may contribute to stress, affective distress and burnout in lawyers that may have implications for lawyer-client interactions.

A Changing Climate for In-House Lawyers? What Should They Really Say to Clients?

A Changing Climate for In-House Lawyers? What Should They Really Say to Clients?

On the development of (not so) new competition systems—findings from an empirical study on Croatia

Abstract This article traces and examines the lifecycle of Croatia’s competition system in the 1995–2018 period: from its inception until after the country acceded to the EU. It aims to identify the main challenges to achieving a higher level of competition system maturity in the context of a post-socialist economy. The article uses an extensive dataset using primary and secondary sources: original, in-depth interviews with key stakeholders (competition authority officials, judges, attorneys-at-law, in-house lawyers, journalists, and academics); quantitative data related to enforcement, budget, and human resources; and relevant media reports. Its unique findings include a specific evolutionary path with four distinct phases of development identified: Inception; Withdrawal; Pre-accession; and Post-accession, as well as two key challenges: institutional and competition culture embeddedness, and functional self-restraint of the competition authority. We argue that the challenges mentioned above, in the context of the competition system trajectory as portrayed in this article, prevent the system from evolving to a more mature stage. This country-specific study aims to contribute to the broader literature on the development of competition systems by examining the relevance of specific factors that influence their evolution.

Female American in-house counsel are no more likely to reach senior ranks than female counterparts in law firms

PurposeThe authors wanted to find out if women in-house lawyers were treated more equitably than their counterparts in law firms and, therefore, reached higher ranks more often.Design/methodology/approachThe authors examined 10 years of data about public companies in the ExecuComp dataset. The information includes name, age, gender, job category and numerous compensation measures. Public companies must report their top five earners. The authors narrowed their focus to 2,154 lawyers of whom 1,851 were men and 303 were women.FindingsAnalysis supported hypothesis 1, showing women are underrepresented in senior legal roles in large corporations. Hypothesis 2, however, was not supported. It was expected that women would be more likely to hold senior positions in female-dominated industries, but this was not the case. Finally, hypothesis 3 was not supported either. It suggested in-house women counsel would earn comparable compensation to their male counterparts. But analysis showed women earned 92.6pc of men earn and their bonuses were only 73.2pc of men’s.Originality/valueThe authors say the research has important practical lessons for companies. Many of the remedies for gender disparities in law firms apply also to in-house counsel, they say. A primary mechanism is to integrate more women into senior leadership positions. This will tend to lead to reductions in compensation disparities, as well as greater accountability and transparency.

Agency over technocracy: how lawyer archetypes infect regulatory approaches: the FCA example

ABSTRACT In this article, we look at the contested role of in-house lawyers in regulated organisations in the financial sector. A recent Financial Conduct Authority consultation on whether to designate the head of legal of banks, insurance companies and other financial firms as ‘Senior Managers’ and the decision which flowed from it, reflected a flawed view of lawyers as a neutral technocracy of mere legal technicians; we show how the FCA’s decision is potentially damaging to the public interest and failed to take into account that in-house lawyers are often important decision-makers and influencers within their organisations. We put the case for an alternative view; that in-house lawyers are professionals, with agency that requires them to act in accordance with ethical norms and means they should be made more accountable for their conduct.

Field Position and Sensemaking: Prospective Sensemaking of Change by Professional Actors

Periods of field change are marked by contention and ambiguity, leading to extensive sensemaking and sensegiving by the actors involved. However, though the relevance of sensemaking during change is well acknowledged and extensively studied, most of the work has been focused at the individual and organizational levels. Further, comparatively less attention has been paid to prospective sensemaking, even though research suggests that prospection is integral to interpretation of ambiguous change. Even less studied is the relationship between actors field position and their sensemaking. This is surprising, as prior research suggests that fields are highly hierarchical and variegated structures and interpretation of issues may vary substantially across actors in a field. Even in research which explicitly explores the influence of field position on interpretation, field position has typically been treated as a unidimensional construct, e.g. based on Bourdieu’s notion of capital. In this paper I address these gaps in our understanding of the influence of actors’ field position on sensemaking by drawing on two dominant sociological theories of field – Bourdieu’s and Fligstein & McAdam’s – and developing a multidimensional conceptualization of actors’ field position. I specifically ask the following question: how does actors’ prospective sensemaking of change evolve over time and what is the influence of actors’ unique field position on prospective sensemaking. I undertake this research in the context of market based reforms in English legal services and enactment of Legal Services Act, 2007. LSA 2007 drastically transformed the fundamental structure of the legal profession in England as it challenged the three key pillars of an established profession – allowing entry barriers to non-professionals, removing professional control of professional organizations and challenging professional self- regulation. Such a contentious change provides a rich context for exploring the relationship between actors’ field position and sensemaking. To do so, I define actors’ field position based on two dimensions: structural position or capital (central versus peripheral) and membership of the proximate client field (individual versus corporate) and identify the unique field positions held by the four key professional actors as central—individual (Barristers), central-corporate (corporate law firms), peripheral-individual (small law firms) and peripheral-corporate (in-house lawyers). I examine actors’ sensemaking based on the coverage in legal trade media during the period of 2001-2006, coding 327 articles in total. My inductive analysis presented two aggregate theoretical dimensions of prospective sensemaking of change in the legal profession: schema of change and problematization of change. I find that actors’ schemata of change is expressed through three different mechanisms: change outlook, affective response to change and market opportunity construction. I also induce three different mechanisms through which change is problematized – public interest, professionalism and bureaucratic inefficiency. My analysis shows that actors’ schema of change varies substantially based on the membership of the client field (individual versus corporate), whereas, their locus of problematization of change varies substantially based on the position in the legal services field (central versus peripheral).

The Role of In-house Lawyers in Medical Institutions with Regard to Patient Safety

The Role of In-house Lawyers in Medical Institutions with Regard to Patient Safety

Gatekeepers, Cultural Captives, or Knaves? Corporate Lawyers Through Different Lenses

Studying the behavior of high-status corporate lawyers is challenging. Much writing (including some of my own) addresses the risk of lawyer enabling of client misconduct by drawing from work in behavioral ethics suggesting that at least some apparent complicity is without full awareness of the impropriety. Is this naive? The first part of this essay pushes harder on consciousness by looking more closely at the lengthy continuum — not a binary yes/no — in the awareness of wrongdoing risk as heavily influenced by the “slippery slope.” Looking at corporate lawyers’ professional responsibility through this lens has some interesting, and as far as I can tell, under-explored implications that help us understand ethical apathy as a distinctive state of mind. The essay’s second part is more hopeful: that such ethical apathy among private practitioners might be offset by greater embrace of the possibility by in-house lawyers. There has emerged in recent years a different lens for the empirical examination of corporate general counsel, using the tools of financial economics to seek correlations (and maybe causation) between identifiable lawyer characteristics and outcomes for the company in terms of (for example) its legal exposure. There is some hopeful news in this research, albeit heavily contingent on the company’s governance structure. The essay ends by suggesting that, while the effort in normative legal ethics to enlist corporate lawyers in more than a legalistic conception of gate-keeping has failed, corporate governance and corporate ethics — surprisingly, perhaps — have some potential to enable gate-keeping general counsels in a way that filters down to the demand for more ethically-sensitive outside counsel as well.

Legal Privilege and Third Party Disclosure: A Comparative Analysis of UK and the US Rules

Abstract The rules of evidence in common law courts rely on the weight of evidence that is deduced by the court based on its admissibility and credibility. This is subject to the evidence that has been disclosed by the client to their lawyer either before or after the litigation is commenced in court. The availability of legal professional privilege is a substantive legal right (not a procedural rule) and it enables a person to refuse to disclose certain documents in a wide range of situations. There can be no adverse inference that can be drawn from a valid assertion of legal professional privilege on evidential grounds by the court. Under English law, privilege applies to the advice given by external lawyers and in-house lawyers (acting in their capacity as lawyers) in the case or in contemplation of litigation. Privilege in the US is broader than in the UK and may vary over time and according to locations/context but a privileged communication under UK law may not be privileged in the US. The Attorney-client confidentiality and work-product doctrine are the most common US types of privilege and this will protect investigation material if its primary purpose is to provide information to obtain a legal advice (i. e. if it is not for a business purpose). The research question in this paper is to what extent internal investigations need to be disclosed where the client confidentiality is not applicable and the court orders disclosure. It compares the framework under which privilege can be exercised, and how in the US a different interpretation allows greater margin for client confidentiality when investigations include another party if documents are compiled in contemplation of legal proceedings.

In-House Lawyers and Non-Executive Directors: A Discussion About Best Practice

Non-executive directors (NEDs) perform a central role in corporate governance, in providing effective challenge to executives. In-house lawyers (IHLs) are central to an organisation’s ability to function effectively and within the law. The relationships between the two constituencies is sometimes not as strong as it might be. In this paper we set out a tentative framework to enable businesses to ensure that NEDs and IHLs have a stronger understanding of each other’s roles and how they can support each other in those roles.

Legal Professional Privilege in EU Antitrust Enforcement: Law, Policy & Procedure

This article discusses the law, policy and procedure of legal professional privilege in EU antitrust enforcement. It focuses primarily on the enforcement of Articles 101 and 102 TFEU [Treaty on the Functioning of the European Union] by the European Commission, but also touches briefly on the enforcement of EU antitrust law by the competition authorities of the EU Member States (addressing in particular the question whether those EU Member States that extend legal professional privilege to in-house lawyers are in breach of EU law), as well as on private enforcement.

Professional secrecy and legal professional privilege

Legal privilege and professional secrecy of attorneys relate to the right to a fair trial (Article 6 European Convention on Human Rights (ECHR)) as well as to the right to respect for private and family life (Article 8 ECHR). The reason for protecting the lawyer via fundamental rights is the protection of fundamental rights of the lawyer’s clients. All legal orders apply legal privileges and professional secrecy; however, the contents of such are not identical. Traditionally there is an important difference between common and civil law. The professional secrecy of an attorney in civil law jurisdictions is his right and at the same time his obligation based on his membership of the Bar (that is his legal profession). In common law legal privilege comprises the contents of documents issued by an attorney to the client. Professional secrecy of attorneys in civil law jurisdictions applies solely to independent lawyers; in-house lawyers are usually not allowed to benefit from rules on professional secrecy (exceptions in the Netherlands and Belgium). On the other hand, common law jurisdictions apply legal professional privilege, recognized also to in-house lawyers. Slovenian law follows the traditional civil law concept of professional secrecy and sets a limited privilege to in-house lawyers. The article then discusses Slovenian law of civil procedure and compares the position of professional secrecy in lawsuits before State’s courts and in arbitration.

Working Together to Provide a Library and Information Enquiry Service to Shell's Legal Community: a Story of Collaboration Between Client and Law Firm Part One: From the Client Perspective

AbstractThis article and the one following are derived from a joint talk given at the BIALL Annual Conference 2017, held in Manchester. The title of the conference was ‘Together or apart? Effective ways of working’ and this talk described the collaboration between Shell's Legal Librarian, Hilary Smith, and Miriam Davies, Head of Library & Information at Norton Rose Fulbright, to provide an enquiry service to Shell's legal community. The service subsequently developed to include other law firms on Shell's legal panel. Topics covered include understanding the information needs of in-house lawyers, types of queries received, why involve law firms in providing such a service, the concept of added value and its importance in the client-law firm relationship, the setting up of the service, how it works in practice, how it is being used and key take away messages. In this article Hilary Smith takes a view from the client perspective.

Working Together to Provide a Library and Information Enquiry Service to Shell's Legal Community: a Story of Collaboration Between Client and Law Firm Part Two: From the Law Firm Perspective

AbstractThis article and the previous one published in this issue of LIM are derived from a joint talk given at the BIALL Annual Conference 2017, which was held in Manchester. The title of the conference was ‘Together or apart? Effective ways of working’ and this talk described the collaboration between Shell's Legal Librarian, Hilary Smith, and Miriam Davies, Head of Library & Information at Norton Rose Fulbright, to provide an enquiry service to Shell's legal community. The service subsequently developed to include other law firms on Shell's legal panel. Topics covered include understanding the information needs of in-house lawyers, types of queries received, why involve law firms in providing such a service, the concept of added value and its importance in the client-law firm relationship, the setting up of the service, how it works in practice, how it is being used and key take away messages. In this article Miriam Davies takes a view from the law firm perspective.

Law, Institutions and Economic Development: Examining the Development of the Home Mortgage Market in India - Can Two Wrongs Make a Right?

There is a vast literature examining the interactions between law, institutions and economic development, but it only occasionally examines how actual markets in emerging economies have developed and transitioned to relying on legal institutions. This paper addresses that question by examining the puzzling growth of the formal home mortgage market in India from the mid 1990s onwards. Enforcing a mortgage and foreclosing on property in the Indian courts were, until very recently, lengthy affairs with a typical case taking between 15 to 20 years to resolve. These delays, along with other factors, made writing mortgages unattractive for banks and led to a trivial home mortgage market until the mid 1990s. However, from about 1994 to 2003, and before any mortgage law related changes took effect, the home mortgage market in India grew quite impressively. This paper examines what led to this growth and finds that, amongst other things, banks in India relied on “dysfunctions” in the criminal justice system to help overcome dysfunctions in the civil justice system for enforcing mortgages. Quite simply two “wrongs” might make a “right”. In particular, in house departments at banks relied on a provision that criminalized “bounced” checks along with the predictability and regularity of extortion by the police to enhance their ability to obtain payments for mortgages and other kinds of debts (e.g., car loans, student loans). Although this aided the growth of the home mortgage market, it also resulted in substantial negative collateral effects by enhancing corruption and worsening adjudicative delays in India. Indeed, the “bounced” check strategy came to represent one of the largest areas of litigation in India. However, once the mortgage market started growing the banks pushed for law changes around 2003 that facilitated the continued expansion of the market, but reduced the need to rely on the “bounced” check strategy, which was becoming costly for banks. This account of the development of the home mortgage market in India not only tracks the incentives faced by the players and highlights the improvisational aspects of this market’s growth, but also has implications for a number of areas of research. This includes insights on the interactions between law, institutions and economic development, the role of private ordering, and key players like in-house lawyers, in market development, and how sustained change and legal reform might be effectuated in some contexts. These insights in turn facilitate the emergence of a richer and more textured approach for exploring the interactions between law, institutions and economic development.

K. Perkins v Sheffield City Council [2016

Thankfully, party wall court cases are relatively low in number, which may be attributed to their prescriptive nature thus operating within well-defined parameters. This means that when the rules are followed, there is little room for error and the parties (often represented by their surveyors) can deal amicably with the relevant matters. However, periodically, unwarranted deviations from the Party Wall Act result in disputes with unpredictable results. The case described in this paper, which was meant to be no more than a routine party wall dispute, illustrates how reckless deviation from a party wall award could result in legal proceedings causing loss of faith in law, undue stress to the adjoining owner and waste of parties’ resources. From start to completion the process took over 15 months and involved three separate in-house lawyers, a barrister, three court hearings (involving two district judges and a deputy district judge) and an inordinate amount of the adjoining owner’s surveyor’s time. As it is often promulgated, there are no clear winners in such cases and even a seemingly outright winner may have lost something through the process.

Systems of Legal Defence Used by Latin American Countries in Investment Disputes

This article describes the main features of the systems of legal defence that Latin American countries have been using when facing investment arbitration. It focuses on Argentina, Venezuela, Ecuador, Mexico, Peru, Bolivia, and Costa Rica, as a group of countries representative of the region and examines their strategies of internalisation or externalisation of the State’s legal defence and briefly addresses whether a policy to prevent investment disputes is in place. The article concludes that there is no uniform strategy of Latin American countries for the legal defence of investment disputes, but the large majority of States follow a mixed approach employing in-house lawyers and external counsel. With respect to the prevention of investment disputes, only some countries in the region have considered a preventive approach, or foster the use of alternative dispute resolution (ADR).

The New Normal: International Litigation and Its Implications for Trial Lawyers

Tl 11 global economy is rapidly reshaping society. Technological advances have helped to spread information about different countries and cultures throughout the world, and this has been a catalyst for new business opportunities in new markets. Large companies have seen the benefits of global commerce for many years. But now, small and medium-sized companies are also seeing international markets as lucrative ways to expand their businesses.The legal profession is also being reshaped by the global economy. Following the lead of clients, in-house lawyers and outside law firms that support their clients' international business activities have had to become familiar with new areas of the law, different cultural and business norms and new ways of practicing law. Many law firms have gone even further, opening international offices to bring them closer to their international clients and to develop even greater expertise with international laws that affect their clients.Given the dramatic increase in international commerce that has taken place, it is no surprise that trial lawyers and their clients are also thinking globally when considering their litigation objectives. It is a natural progression; litigation that was first conducted locally within a single state or province expands to national multidistrict litigation within a particular country and then to international litigation. Litigation results from one country may be used as precedent in litigation conducted in other countries. Laws that are available in certain countries may create favorable results that can affect business activities elsewhere. Strategic lawsuits may be part of the business strategies of some companies, curbing the activities of competitors in certain jurisdictions or creating leverage for other business negotiations.Plaintiffs' lawyers have also learned that litigation in international venues can be a very profitable expansion of their domestic litigation activities. It has become very common for copycat litigation to spring up in other countries after first being developed in the United States. Consequently, clients may find themselves facing a repeat of litigation that they thought had concluded, with the litigation now transferred to a foreign jurisdiction.International litigation against tobacco companies provides a useful illustration of how litigation is now taking place on an international battlefield. This article uses international tobacco litigation as a case study for these trends.I. Tobacco Litigation HistoryLitigation against tobacco companies is not new. It has gone on for many decades, having begun in the United States at least as early as the 1950s. For decades the tobacco industry was very successful defending these cases, which contained significant causation and contributory negligence issues.Notwithstanding their setbacks, the plaintiffs' bar persisted in bringing new actions in many different states on behalf of individuals and in the form of class actions.1 Eventually, by the early 1990s, plaintiffs began seeing some success, and that success has increased over the years.Following some of these early victories, in the mid-1990s state governments jumped on the bandwagon, bringing lawsuits against tobacco companies to recover medical costs expended treating smokers who developed lung cancer and other diseases allegedly attributable to their smoking. Between 1994 and 1997 there were at least 42 lawsuits by state governments pending against tobacco companies seeking reimbursement for health care costs.These state-sponsored lawsuits also began seeing success. For example, in 1996 it was reported that the parent of one of the large tobacco companies settled with several suing states. The settlement reportedly required the tobacco company to pay money, add new warnings to cigarette packages and testify against other tobacco companies.3 Further settlements with states over health care costs occurred. …

Mapping the Moral Compass: The Relationships between In-House Lawyerss Role, Professional Orientations, Team Cultures, Organisational Pressures, Ethical Infrastructure and Ethical Inclination

This report provides a unique profile of real differences within the in-house community. We examine individual and team orientations to the in-house role; the invocation of professional principles; and ethical infrastructure, ethical pressure and relationships with the employer. We relate these to externally validated indicators of ethical inclination: (i) moral attentiveness (the extent to which people deal with problems as moral problems and the extent to which people identify moral problems); and (ii) moral disengagement (the extent to which people are inclined to morally disengage to behave unethically without feeling distress). It is as rich a picture of what it means to be an ethical in-house lawyer as has ever been attempted. Through this research we profile the characteristics of individuals, teams and environments most associated with a stronger or weaker inclination to behave ethically. It is important to emphasise that this mapping of the ‘moral compass’ of in-house lawyers shows that ethicality is associated with individual and professional notions of the in-house role but also with team orientations and the broader organisational environment. Ethicality is both a systemic and individual phenomenon. To help understand the diversity in ethical identities, we identify four main groups of in-house lawyers (described in more detail in Chapter 9): • the Capitulators (who are reasonably morally attentive but are under ethical pressure and are less morally engaged); • the Coasters (who do not perceive themselves as under ethical pressure and have moderate-low levels of moral attentiveness but not lower moral disengagement); • the Comfortably Numb (who do not perceive high levels of ethical pressure and have low levels of moral attentiveness and higher moral disengagement – the most concerning of the four groups); and,• the Champions (who are under the highest levels of ethical pressure but retain the highest levels of moral attentiveness and the lowest levels of moral disengagement). Our research suggests that ethical in-house practice is about individual understandings of the role (orientations towards commerciality; ethicality; independence; being a mere advisor; and exploiting uncertainty); it is about the approach of teams and the organisations those teams work in; it is about understanding and drawing on all the obligations of professionalism; and, it is about building a better infrastructure to manage the tensions within the role.