New findings reveal some significant challenges coming to bear on those lawyers who must straddle both the strategic needs of their organization and the ethical demands inherent to the legal profession.
The 122-page Mapping the Moral Compass study provides a rich picture of ethical issues faced by in-house lawyers. A quarter of respondents were in-house lawyers working in the public sector, seven percent from non-profit organizations, and the largest portion of study’s sample were in-house lawyers working in business. Researchers grouped the lawyers into three categories: Champions, Coasters, Capitulators, and the Comfortably Numb.
“Champions” were more likely to work in teams with higher ethical and societal orientations than the other groups, personally exhibited a stronger individual ethical orientation, and had a stronger independence orientation than the Capitulators and the Comfortably Numb. This suggests that in-house lawyers who were more independent from their organization would be more likely to behave ethically. In comparison with the Comfortably Numb, Champions had a more negative relationship with the business.
The “Comfortably Numb” was the smallest group. These lawyers were the most morally disengaged and unattentive. Capitulators experienced the second highest levels of ethical pressure and had significantly higher levels of moral disengagement. They saw moral challenges and thought about moral challenges, but generally disengaged in response. The largest number of lawyers fell into the “Coasters” category: moderately low levels of recognition and reflection on moral or ethical issues.
Almost half of the in-house attorneys surveyed agreed that actions were sometimes taken against their advice on legally important matters. Despite, or perhaps because of this, a substantial 65 percent of lawyers said that achieving what their organization wants has to be their main priority.
Nine percent of respondents indicated saying “no” was to be avoided at all costs, even when there is “no legally acceptable alternative to suggest.” The study did not, however, suggest that all in-house lawyers are becoming “yes” men and women. Additional research cited in the study shows that many lawyers have shifted to framing advice in “yes, but” language because it is more effective than simply saying “no” flat out.
Most respondents characterized their relationship with their employers as “supportive.” However, a comparable portion of respondents reported being criticized for “inhibiting or slowing business decisions.” Surprisingly, ethical pressure was highest in public sector organizations.
Between ten and fifteen percent of lawyers reported elevated ethical pressure and were regularly or very frequently asked by their employers to provide legal advice on issues that made them uncomfortable. Overall, thirty to forty percent experienced some level of ethical pressure at work.
At root, what this study definitely makes clear is that in-house attorneys across all types of employers face some ethical challenges that external counsel may not, given that the former are employed by the entities they advise. For in-house counsel, both lawyers and their employers need to be mindful of these potential pitfalls to ensure that an attorney’s ethics aren’t inadvertently compromised.