The past decade has seen the rise of the compliance team across many organisations. What does that mean for professional ethics?
The Oxford English Dictionary defines “compliance” as “an action in accordance with a request, command etc.” Compliance is therefore about the external influence of our behaviour. Ethics is about our conscience and moral principles as well as our adopted professional standards.
It is unsurprising, because they are in a position to command, that organisations tend to focus on compliance. For me, over-reliance on compliance erodes personal responsibility informed by our own professional and personal ethics. Furthermore the Final Report of the Legal and Education Training Review identified gaps in professional ethics knowledge and skills. There needs to be more focus on professional and personal ethics.
As an in-house lawyer, the number of ethical dilemmas were myriad; much more so than private practice. True, conflicts of interest exist in both, but the dividing lines in the question “who is my client?” are much more blurred. In the same way, the relationship of trust and confidence is severely tested by the erosion of the employed lawyer’s right to claim privilege.
The pressures on in-house lawyers are enormous in the ethical arena. If you make an ethical stand, do you risk being accused of being “Dr No” or not “one of the team”? “I was doing it for the good of the company” is the time worn excuse of the white collar criminal trying to dress up their behaviour as a moral dilemma. They tend to overlook the personal financial gains from their activities. “It’s above my pay grade,” is the last refuge of ethical ambivalence.
I was talking with a group of young lawyers the other day, who pointed to the open engagement that they can have within their organisation when confronted with ethical dilemmas. Fostering openness and senior management support for ethical behaviour is vital. It is important to encourage lawyers, with particular support for junior ones, to make ethical calls and reward such behaviour. You can measure compliance against Codes of Conduct and corporate values all you like, but ethics comes from our conscience. Give people an environment in which they can safely say what they think, without fear of undue pressure and that will promote ethical behaviour. Compliance has its place, but it does not trump the personal responsibility that comes with ethical decision making.
Training in-house lawyers to understand what types of pressures are likely to create ethical problems and how to deal with them is also necessary.
Whoever our client is, whatever our duties are to our organisation or our own personal interests, as lawyers we signed on to uphold the administration of justice. If you do not understand that duty you should think twice about becoming a lawyer.
For those interested in more on ethics, please also follow Richard Moorhead’s excellent blog. It is well worth reading and some of what he reports on is scary when you view how others bend their ethical behaviour.
Photograph reproduced by kind permission of Esten Hurtle