Thematic credibility

The SRA have published a very interesting document. A Thematic Review into In-House lawyers. You can read it here. And you can expect your heart to sing because the CEO of the SRA says the results are generally encouraging.

Here is what the estimable Ben White, of Crafty Counsel, said about it on LinkedIn:

Some of it is pretty eye opening and somewhat inconsistent with the overall tenor of the executive summary (which I would characterize as “there’s stuff to improve but broadly things feel ok”). For example:

– “A minority had experienced significant ethical and political pressures. This included 10% who said their regulatory obligations had been compromised trying to meet organisational priorities.”


– “5% of respondents had experienced pressure to suppress or ignore information which could conflict with their regulatory obligations.” For example this survey respondent: “‘The organisation I worked for was engaged in practices I considered were likely to result in breaches of their legal duties. It required me as a solicitor to report as an officer of the court. I raised concerns with the senior leadership and as a result had to leave the organisation.'”

…That all said, I feel somewhat more positive about the review than other commentators.

– The fact that the SRA have invested time into this review is itself positive. I’ve personally felt for some time that SRA and Law Society leadership in terms of support for in-house lawyers’ unique ethical challenges (your one client is your boss is your paymaster) has been notable by its absence. If this is the start of more attention on this neglected area, good

Ben’s right, I think, on all fronts. And the other commentators might have had me in mind (he paraphrases me in the full post).

I looked at the 10% finding and this analogy came to mind.

Imagine the SRA was asking lawyers, are you a functioning alcoholic? Would you think a figure of 10% was encouraging? And would you think it likely to be accurate? Would the survey respondents know if they were functioning or alcoholic? And so on…

Even if accurate, I would take the view that a figure of 10% is high, not encouraging. It represents just shy of 2,500 in-house lawyers who believe that they have breached their regulatory obligations. 10% think they fell off the wagon. Other data in the review adds to my sense of concern, but I’ll leave you to read that for yourself.

There’s another point about how one measures these things which is important. A public interest regulator, praying in aid its own research in this way, should be publishing its methods. It’s a basic element of good governance; a chance to persuade their audiences they are acting properly, as objectively as possible, in an evidence-based manner. Shonky surveys followed by press releases should be left to others. We don’t know if this is a shonky survey or not because the SRA has not published, and has not been able to produce when asked, a proper description of those methods.

I can understand the desire to convey the important point that the majority of in-housers resist ethical pressure, but that message is undermined when it looks like PR not a serious policy that drives the central lesson learned from a thematic review. It’s a shame because the document is way better than the messaging. Read it.

4 thoughts on “Thematic credibility

  1. “Even if accurate, I would take the view that a figure of 10% is high, not encouraging.” If it was ‘a shonky survey’, then the figure is likely to be much higher. Those who have fewer ethical qualms (or are not financially secure enough to be able to leave an organisation over its ethics) are less likely to have responded to the survey.

    Perhaps “10% of those who responded” would be more accurate?

  2. I’ve read the thematic review and have these thoughts:

    1) IHLs/GCs are Officer’s of the Court 2) They have a conflict between loyalty/support for the organisational mission and their independence, ranging from: a) my advice is in conflict with the CEO’s/Board’s views and they are all cross with me … to … b) you are outwith the law and as an OOTC I have to blow a few whistles

    Compare and contrast with the Chief Risk Officer and Head of Internal Audit … they do not have 1 and 2b but they do have 2a. They also reach a version of 2b where life gets so crappy they leave/are sacked and whistles get blown.

    As CRO/HoIA you have to be able to stand pressure from exuberant execs who disagree with you … for example … wanting more risk or less audit actions.

    Thus .. a bit of me says to GCs and IHLs … get over yourselves … others have a similar pressure to you. More constructively, it would make sense to me that the GC/IHLs meet regularly with their counterparts in Risk and Internal Audit to swap independence stories and tactics. Being a group giving a bit more air cover and mutual support.

  3. There is something quite disturbing here .

    When I first went in house (1985) my peers mostly thought I was mad-at that time the favoured pathway was either partnership, or break out and set up on your own account-above all “get a following” , but that wasn’t for me.
    I had already experienced life beyond the law office, working in engineering during my gap year, and in subsequent holidays from Uni.
    On qualifying in private practice I found that I missed the sense of identity and common purpose that went with working for a single, corporate organization.

    I moved in house because I was motivated by (and fortunate enough to work for) organisations that hired in house counsel not just as the necessary “get out of jail card “, but as the lawyer who was most happy and effective when working alongside other professionals within the organisation, engineers , accountants , auditors , sales teams and the like-thereby helping to shape strategy, find solutions, and become part of a multi disciplinary team whose job was to advise, protect and grow the business.

    This “team player” role is critical and ought to be generic to any organisation but it’s especially important when working for a start up or challenger business -I have some great memories of listing Freeserve , when the first conversation with the Stock Exchange was which sector would it fit in-media or telecommunications -actually neither…so a whole new category had to be found “Technology Media and Communications” and we weren’t afraid to litigate at every opportunity to get the regulatory breaks we needed to succeed.

    Now the conversation has moved (inter alia) to AI and algorithmic bias , I don’t envy the pressures that in-house counsel face as the colleagues they work with (and whose option pool they share) look for advice as they seek to grow sales against the back drop of an uncertain media driven regulatory environment that makes the one we faced at Freeserve , in the early days of the internet , look tame by comparison.

    For these reasons I worry about the effect on any organisation of this push towards that of the isolated figure of the GC-whose responsibilities must always , Janus like, reflect and balance not just the organisations objectives, but wider , and often poorly defined societal objectives . I am especially sceptical of those GC’s who claim this to be an integral part of their role even to the point of having that aspect of their role written into the very terms of their employment-something now encouraged by the SRA.

    This important aspect of the in-house role (that of a key team member) seems to me to be fundamentally unrepresented in the review ; ironically that absence of consideration, or any assessment of its practical impact , probably makes it easier for the recalcitrant in house lawyer to hide behind the corporate veil when things go wrong… (PO scandal for example?)

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