The Unaccountability Machine: Difference between revisions

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 One creates an accountability sink by delegating the administration of a human process to a [[playbook|rulebook]] and then not giving anyone direct power to override it. Airlines, banks and online retailers of course have no access to anyone whatsoever. But the crushing stasis that anyone who works in financial services will know is a variety of the same thing.
+And it explains exactly why noone saw, or appreciated the significance of or stopped to consider the implications of, the potentially incendiary advice they were receiving. ''it was not their job to second guess a process that had been set on rails well before they were involved''. They were like those furious ice-sweepers in the sport of curling — the policy having been set and launched, it had momentum, and their job was to purely ''facilitate its prosecution''. It was no part of their role to ''impede'' its stately progress. From an immediate career path perspective, the ''last'' thing these drones would want is to create ructions further up the [[line manager|chain of command]].
+In organisations over a certain size there is a presumption, not lightly rebuttable, that others in the organisation know what they are doing. This is its own [[accountability sink]]. Questioning a decision that appears to have been made elsewhere — whether by application of rigid policy or the exercise of someone else’s discretion — is to sell a ''personal'' [[put option]] whose benefit, if there is one, accrues to the organisation, but whose loss allocates solely to you. If you turn out to be right, someone else carries the can, if you’re not, you will. Either way, you have lost a friend.
+Your only upside is avoiding an unthinkably remote tail risk: that some day, years from now, the entire shabby affair will be exposed and all participants held to public account before the watching eye of the internet. Even then if you end up at even money you will be lucky.
+Bear in mind, too, that these people are paid partisans. Litigation in the common law world is an adversarial process. It is not a fact-finding enquiry. Yes, there are standards of disclosure and honesty required of witnesses but, upon finding weakness in a witness, the litigants instinct is not to instantly concede defeat but to find a better witness. The theory of the case rarely
+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]].
+Individuals are, therefore ''positively disincentivised'' couraged from raising their hands.
+We should not underestimate the overwhelming power of ''[[plausible deniability]]''.
+====The role of in-house counsel====
+There is an argument, unstated in much commentary on the case, that the primary role of [[in-house counsel]] — of not just the [[GC]] when preparing briefings to the board, but all lawyers in the organisation, whatever they happen to be doing— is to act as the organisation’s moral conscience. They, even more so 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 at points where 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.
+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 the need for anecdotal intellectual reflection about what the firm was doing. In-house legal is an accountability sink ''machine''.
+Nor should it be: the corporate conscience should be imbued in its every representative, in every thing she does. A model that sees legal and compliance as a crack morality squad fighting a multi-front war to quell the infamy that would otherwise well unchecked in 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 of divers legal visionaries in its natural home: [[LinkedIn]]. There is any volume halfwittery about [[legal services|legal service delivery]], [[DEI]], the legal process excellence, demand management, 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.
+It is easy, and tempting, to put this down to an unusual confederacy of [[stupid apple]]s — this suits our personal self-esteem because if so, such a thing could 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. But — thanks to the unaccountability machine — it is hardly likely.