Are GCs More Than Just Legally Trained Executives?

, Corporate Counsel

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General counsel are both lawyers and businesspeople, and their role is to further the interests of the corporation in any arguably lawful manner they see fit.

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What's being said

  • Nick Thomas

    Mr. King. Thanks for reading and commenting. As I tried to related in my piece, I have created the Lawyer Independence Project specifically to challenge views such as yours. I stand by my statement that "zealous advocacy" has no place in the practice of law, save the context of ongoing litigation. For support, I'll refer you to Canon 15 of the original 1908 Canons of Professional Ethics, Paragraph 8 of the Preamble of our modern Rules, as well as Professor William T. Allen's Corporate Governance and a Business Lawyer’s Duty of Independence, 38 Suffolk U. L. Review 1 2004-2005.

    For an extended discussion of my views, please e-mail me at nthomaslaw@comcast.net. I will forward an article to you.

    Again, thanks for your comment.

    As for "Public Company GC," I'm aware of the views of the European Court. My views are different. I would argue that neither the in-house counsel nor the "big firm" lawyer is in a position to exercise the kind of independence that is at the heart of our profession. For too long, we have depended on lawyers with obvious conflicts to behave "as if" they are independent. As we are learning from current advances in cognitive neuroscience, that is simply not how the brain works. I advocate for actual financial, moral and practical independence as the way forward for our profession and our society.

  • Nick Thomas

    Mr. King. Thanks for reading and commenting. As I tried to related in my piece, I have created the Lawyer Independence Project specifically to challenge views such as yours. I stand by my statement that "zealous advocacy" has no place in the practice of law, save the context of ongoing litigation. For support, I'll refer you to Canon 15 of the original 1908 Canons of Professional Ethics, Paragraph 8 of the Preamble of our modern Rules, as well as Professor William T. Allen's Corporate Governance and a Business Lawyer’s Duty of Independence, 38 Suffolk U. L. Review 1 2004-2005.

    For an extended discussion of my views, please e-mail me at nthomaslaw@comcast.net. I will forward an article to you.

    Again, thanks for your comment.

    As for "Public Company GC," I'm aware of the views of the European Court. My views are different. I would argue that neither the in-house counsel nor the "big firm" lawyer is in a position to exercise the kind of independence that is at the heart of our profession. For too long, we have depended on lawyers with obvious conflicts to behave "as if" they are independent. As we are learning from current advances in cognitive neuroscience, that is simply not how the brain works. I advocate for actual financial, moral and practical independence as the way forward for our profession and our society.

  • Josh King

    Our service is, first and foremost, to our clients. The fact that "zealous advocacy" has a slightly different meaning when applied to litigation (as opposed to counseling or negotiation) does not, in any way, mean that we must "balance" our client's interests with those of other parties or society at large.

    "Consider?" Sure. "Balance?" Never.

    That doesn't mean we ignore societal interests or our clients' doing the right thing. But the special responsibilities we have as lawyers almost always coincide with our providing the best possible representation to our clients.

    Josh King
    General Counsel, Avvo

  • Public company GC

    In a way, Mr. Thomas' arguments are exactly the reasoning that the European Court applied in the Akzo-Nobel case when they ruled that attorney-client privilege does not apply to in-house lawyers. They may be "lawyers," reasoned the court, but they can't act as them if they are employed by the client. Of course this totally ignores the fact that many outside lawyers are even more beholden to one or a few clients than are employed lawyers.

  • Ben Heineman

    Thanks, Mr. Thomas.

    I mistakenly said Mr. Weber in the first sentence of my comment, when I meant to write "Mr.Thomas" because I was referring to his post today.

  • Nick Thomas

    Mr. Heineman. I referred to you as Mr. Heineman throughout my piece. It was edited out. Absolutely no disrespect intended. Thanks for reading, and I would love to contribute in any I can to your work. Thanks. Nick Thomas.

  • Ben Heineman

    To make a rhetorical point, Mr. Weber says that I advocate that "GC's are maybe a bit of the corporate conscience." Of course, I go far beyond that both in the CC article he cites and in a raft of other writing (see e.g.. "The General Counsel as Lawyer-Statesman" http://www.law.harvard.edu/programs/plp/pdf/General_Counsel_as_Lawyer-Statesman.pdf). For example, in the CC article he references I conclude by saying: "Between Weber's unreal straw man of GC as the conscience of the company and his pinched "one voice among many" is the practical ideal to which I believe all in-house lawyers should aspire: the lawyer-statesman with broad scope and multiple roles [including, of course, lawyer!!] of technician, counselor and leader who is an invaluable advisor and officer to the CEO and the board in playing a key role--not the role--in helping the company acheive the fundamental goals of capitalism, the fusion of high performance with high integrity." And elsewhere in that piece I say that "integrity"---which the GC has a salient role in promoting---involves "adherence to the spirit and letter of the law, the adoption of global standards beyond what the law requires, and the values of honesty, candor, fairness, reliability and trustworthiness."

    As all of who have served inside large corporations know well, the GC is the final decision-maker on a wide variety of legal and ethical issues which don't make it to the top of the company. He or she is the leader. I was talking in my response to Mr. Weber about major issues which necessarily, in a corporate structure, should appropriately, be decided by the CEO or board of directors with strong analysis, broad perspective and clear recommendations from the GC or other inside lawyers that should and usually do what Mr. Thomas advocates: look at the implicated interests of many stakeholders and seek to follow both the spirit and letter of the law. But once a decision is made by senior company leaders who have the responsibility for such decisions inside lawyers should be zealous advocates of that position---or find another job if it offends their conscience. See "Caught in the Middle", an essay in CC on the tension for all of us between being partner to CEO and guardian of the corporation.

    Mr. Thomas is, of course, free to use some guy named Heineman as his straw man.
    But my problem: it weren't me.

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