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====In-house counsel is not a moral compass==== | ====In-house counsel is not a moral compass==== | ||
There is an argument, unstated in much commentary on the case, that the primary role of [[Inhouse counsel|in-house counsel]] — of not just the [[GC]] when preparing briefings to the board, but all lawyers in the organisation — is to act as the organisation’s moral compass. They, even more than their [[compliance]] colleagues, are ideally positioned to sit above the fray, from where they can interrogate the organisation’s baser commercial instincts, at least | There is an argument, unstated in much commentary on the case, that the primary role of [[Inhouse counsel|in-house counsel]] — of not just the [[GC]] when preparing briefings to the board, but all lawyers in the organisation — is to act as the organisation’s moral compass. They, even more than their [[compliance]] colleagues, are ideally positioned to sit above the fray, from where they can interrogate the organisation’s baser commercial instincts, at least insofar as they manifest in legal work product. | ||
That’s a plausible theory of the game, but it hardly reflects current practice. For one thing, in-house [[legal is not in the operational stack]], so doesn’t see the great pitch and yaw of BAU activity that animates the firm’s mortal sinews. At most it would be an exceptional function. But it is not even that. | That’s a plausible theory of the game, but it hardly reflects current practice. For one thing, in-house [[legal is not in the operational stack]], so doesn’t see the great pitch and yaw of BAU activity that animates the firm’s mortal sinews. You wouldn't, situate your moral compass behind the fire extinguishers in the drawer with old chequebooks, broken torches and dead batteries if you had a real intent to use it. At most it would be an exceptional function at times of crisis. But it is not even that. | ||
JC has a tongue in cheek [[history of in-house legal]] which charts the growth of the in-house legal function from a gray fellow in a cardigan behind a desk next to the photocopiers who, wordlessly managed the firm’s powers of attorney, to the weaponised, operationally supported 1,000 strong battle unit we know today. | JC has a tongue in cheek [[history of in-house legal]] which charts the growth of the in-house legal function from a gray fellow in a cardigan behind a desk next to the photocopiers who, wordlessly managed the firm’s powers of attorney, to the weaponised, operationally supported 1,000 strong battle unit we know today. | ||
''No part of that transformation grew out of the yen for a stronger corporate conscience.'' It was about business facilitation, cost management ([[legal eagles]] were meant to be able to call bullshit on their external advisors) and the ''commodification'' of legal services. Precisely, the urge to codify rules and take away | ''No part of that transformation grew out of the yen for a stronger corporate conscience.'' It was all about business facilitation, cost management ([[legal eagles]] were meant to be able to call bullshit on their external advisors) and the ''commodification'' of legal services. Precisely, the urge to codify processes, set operating rules and ''take away'' any need for anecdotal reflection about what the firm was doing or where it was headed. In-house legal is, in this way, an ''anti'' moral compass. Legal is an accountability sink ''machine''. | ||
Nor should | Nor should legal , or compliance, or any discrete disk function be the firm’s corporate conscience: it should be imbued in its every representative, in every thing she does. An operating model that supposes legal and compliance to be a crack morality squad, fighting a multi-front war to quell the incipient infamy that would otherwise burst from every servant’s breast is as ridiculous as it is unhinged. | ||
Lawyers aren’t even expected to prioritise the law. Doubters are invited to peruse the thought-leadership | Lawyers aren’t even expected to prioritise the law. Doubters are invited to peruse the wide range of legal thought-leadership in its natural home: [[LinkedIn]]. There is any amount halfwittery about [[legal services|legal service delivery]], [[DEI]], legal process excellence, demand management and the transformational potential of [[AI]]. But good luck finding a think-piece that even ''mentions'' the law, let alone anything as nebulous as an in-house lawyer’s obligation to make ethical judgments about it. | ||
====A confederacy of stupid apples==== | |||
{{Drop|I|t is easy}}, and tempting, to put the Horizon débâcle down to an unusual confederacy of [[stupid apple]]s — this suits our personal self-esteem because if that is right, such a thing should not happen to us. | |||
We should not be so sure. | |||
“It would be nice,” says a valued correspondent, “if counsel were free to have a working moral compass inside their heads to help take open and ethically sustainable courses of action.” | “It would be nice,” says a valued correspondent, “if counsel were free to have a working moral compass inside their heads to help take open and ethically sustainable courses of action.” | ||
It would. But — thanks to the unaccountability machine — it is hardly likely. | It would. But — thanks to the unaccountability machine — it is hardly likely. No–one got ahead by calling management out for incompetence. | ||
Bear in mind, too, that servants, including in-house lawyers, are paid partisans. ''Advocates'' for the firm. Litigation, in the common law world, is an adversarial process, not a fact-finding enquiry. | |||
Yes, there are standards of disclosure and honesty required of witnesses but, upon finding weakness in a witness, the litigant’s instinct is not instantly to concede defeat but to ''find a better witness''. | |||
We are at danger of imputing to these individuals knowledge we now have — courtesy of the ITV drama, and months of cross-examined evidence — but they plainly did not. Not that the Horizon system was flimsy, biddable or prone to errors; they knew that — but that ''there was no fraud''. | |||
It seems absurd. It would be absurd were it not the plain facts of the matter. These people were told, by people they trusted and had no reason to doubt, that the sub-postmasters were fraudsters. That is their operating theory of the game. The fact that the horizon system was a dog was an irritating fact getting in the way of a nobler | |||
A special mention of the ultimate flimsiness of [[legal professional privilege]] here. Some people who ''really'' ought to know better put in writing some ''extraordinary'' things. The misjudgment seemed so total until you realise that, normally , this class of communications ''would never see the light of day'', barred from view by the deep magic of [[litigation privilege]]. | A special mention of the ultimate flimsiness of [[legal professional privilege]] here. Some people who ''really'' ought to know better put in writing some ''extraordinary'' things. The misjudgment seemed so total until you realise that, normally , this class of communications ''would never see the light of day'', barred from view by the deep magic of [[litigation privilege]]. | ||