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In-house: my client, my job?

16 October 17

New guidance for in-house lawyers helps them to deal with difficult questions over who they may properly advise in the course of their employment

by Craig Watson

The growth of in-house legal practice has provided many new opportunities and rewards for those working in the sector. But the ever-shifting legal landscape has brought challenges too: economic conditions remain difficult for many in the profession, including those employed in-house, and organisations have become increasingly complex as efforts are made to deliver services in more effective and efficient ways.

In response to the changes taking place, and to ensure the needs of members were being met, the Society’s In-house Lawyers’ Committee carried out a survey of in-house solicitors. One of the issues highlighted was that a number of those who work in the sector often face pressure to give advice to someone other than their direct employer.

As committee convener Graeme McWilliams says, the feedback suggested that the time was right to put together new guidance for members. He explains more about the background to the publication of the Who is your client? guide: “The survey of in-house lawyers found that they often come under pressure to give advice to someone who is not their direct employer, for example, other colleagues, associated bodies, directors and even members of the public.

“And as our in-house sector continues to expand, we thought that it was time to formulate further guidance for our members. Organisations are much more complex now than they used to be in their constitution and structure, for instance with the existence of other subsidiary bodies, and as we find new and innovative ways for delivering services. We live in interesting times, change is a constant, and we need to keep our in-house guidance under review.”

The new guidelines, which were prepared with a focus group of in-house solicitors from the public, private and third sectors, are not prescriptive. Building on the Society’s existing Guide for in-house lawyers, the advice outlines the current rules and guidelines, describes some of the issues that in-house lawyers may face and provides a series of case studies and practical tips on how to deal with potentially tricky relationships, including with so-called “middle ground clients”.

McWilliams continues: “As an in-house lawyer, your employer is your client. But who is your employer and what about associated bodies, work colleagues and others? The Who is your client? guide helps in-house lawyers to answer those questions, outlining when they can give advice and what to consider in those circumstances.

“The ‘middle ground client’ is a new term we came up with when drafting the guidance. The term refers to bodies and people somewhere between an actual employer and unrelated third parties/the general public. It identifies an established practice amongst a number of our in-house members. Our aim is to ensure that in-house lawyers can identify who their client is and mitigate any potential risks. We are involved in education for our in-house members and this is something we will look to expand on further.”

As outlined in the guide, the In-house Lawyers’ Committee found that, while the pressures exist in both the private and public sectors, they are most strongly felt in local government teams, and are increasing as organisations develop new ways of working.

“There is particular pressure on local government due to budget pressures alongside the Scottish Government’s shared services and community empowerment policies,” McWilliams comments. “However, it seems to be a growing area in both the public and private in-house sectors as organisations seek to do more, in new ways, and resources continue to be under pressure.

“The Law Society is keen to ensure that the parameters of in-house practice are clear – and members are equipped with the tools they need to deal with the potential pressures they face in this growing area of the legal profession. We also hope that these supplementary guidelines will bring greater consistency to in-house practice.”

The response to the guide has already been positive, with discussions among in-house teams, a focus on in-house ethics by Professor Richard Moorhead of University College London at the Society’s annual conference last month, and an in-house best practice course taking place at the beginning of this month.

Expanding on the development of the guide, McWilliams explains: “The guidance was created in consultation with a broad range of in-house lawyers, including the Society of Local Authority Lawyers & Administrators (SOLAR), who were able to clarify their position on the middle ground client. This has undoubtedly helped in terms of spreading the word and getting buy-in from our members.

“It appears to have been well received, has created considerable interest, and many in-house teams seem to be using it as a discussion point at their team meetings. We plan to build on this guidance, benchmark with other jurisdictions, and discuss it further within one of our future in-house evening seminars.”

The Who is your client? guide can be found on the Society’s website at www.lawscot.org.uk/in-house. Craig Watson is a freelance writer with a special interest in legal matters

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