Academic journal article Case Western Reserve Law Review

Ethical Challenges in the Role of In-House Counsel

Academic journal article Case Western Reserve Law Review

Ethical Challenges in the Role of In-House Counsel

Article excerpt

CONTENTS  INTRODUCTION I. THE EVOLUTION OF THE STUDY OF ETHICAL DECISION-MAKING BY      PROFESSIONALS AND IN-HOUSE COUNSEL IN PARTICULAR II. ETHICAL DECISION-MAKING AND IN-HOUSE COUNSEL PRACTICE III. LESSONS LEARNED FOR THE ETHICAL ROLE OF PROFESSIONALS CONCLUSION 

INTRODUCTION

Understanding the subtle pressures and biases that influence the way we behave might provide a far more effective education for future practitioners than studying professional standards alone. In her companion piece to this Article, published in the same issue, Dr. Paula Schaefer highlights the obvious importance of considering ethical decision-making through the lens of the broad variety of behavioral factors that influence how individuals conduct themselves within organizations. (1) In her piece, Dr. Schaefer considers how context can provide far greater insight into actual decisions than simply a review of professional rules. Rules alone have failed to protect society from bad behavior by professionals.

It is tempting to begin this short analysis by referencing the most recent transgressions of those professionals in whom society places trust. It is interesting to study the history of any profession and observe how all writers (including ourselves), in whatever era and discussing whichever profession, motivate our work. (2) The basic question is always: where were the lawyers, accountants, actuaries, engineers, etc.? (3) Why did bad things happen? The follow up and more fundamental observation is this--there are few corporate frauds or failures that take place without the active assistance of professionals, all well versed in ethical principles. (4) How then do these transgressions occur?

The focus of this Article will not be major ethical breaches or active fraud by any individual professional. There have always been, and no doubt will continue to be, individuals for whom any sense of moral compass is lacking. When offered the opportunity to engage actively in unethical behavior, say fraud, they do not resist. Part of our disinterest in analyzing the behavior of the really bad actors is our general frustration with the common defense by those remaining in organizations, particularly in the 1990s and early 2000s- the defense of the solitary "bad apple." (5) By isolating bad decision-making to one or two individuals, the institutions in which the transgressors operate are effectively deemed free from responsibility. Moreover, short of imposing more and more effective control systems, little can be done to prevent the actions of the truly bad individuals if the actions are well executed.

The argument that will be made here, and indeed which is consistent with the work of Dr. Schaefer, is the need to focus upon the subtle shifts in behavior and reasoning that can result from the context in which all professionals operate, and which may, under certain conditions, lead to less than optimal ethical decision-making by anyone.

The panel for which this Article was originally prepared addressed the in-house counsel profession and, in particular, the ethical challenges its members face. This is not a new concern, although in the past the academic literature often addressed very specific professional practice issues such as that of attorney-client privilege. (6) Arguably, this focus evolved from the growth of in-house practice as a unique form of professional practice, distinct from law practice in general. (7) While this is not the place to explore the history of corporate counsel practice, (8) there is no doubt that the real impetus for its modern form followed from shifts within the overall profession, documented by the work of Chayes and Chayes and others. (9)

The discussion that follows will address first the evolution of the study of ethical decision-making by professionals and in-house counsel in particular. Second, it will consider Dr. Schaefer's interest in behavioral ethics within the framework of legal practice, including in-house counsel practice. …

Search by... Author
Show... All Results Primary Sources Peer-reviewed

Oops!

An unknown error has occurred. Please click the button below to reload the page. If the problem persists, please try again in a little while.