Testing Times: In-House Counsel and Independence

Abstract

While lawyers’ independence initially developed as a way of protecting lawyers and their clients from the power of the state, it is now also associated with the protection of the public interest from lawyers who are too close to their clients. In this context independence is seen as a way of ensuring that lawyers act ethically, that is, with regard to their overriding duty to the court and the administration of justice rather than according to sectional, personal or economic interests. It has been noted in various contexts that lawyers who work closely with powerful clients may be less able to withstand client pressure and uphold their obligations to the administration of justice. In-house lawyers are seen as particularly vulnerable on this front due to their position within the client’s organisational structure. On the other hand some have argued that the position of in-house lawyers gives them greater potential to exercise independent judgment and influence the ethical behaviour of their organisation. This paper examines independence generally. It argues that it is multi-faceted with the essential aspect being the capacity for independent judgment or independence of mind. This is supported by status, power and structural protections. The courts have looked at the independence in-house counsel in the context of claims of client legal privilege (also known as legal professional privilege). They have developed a number of tests to determine whether particular in-house lawyers are sufficiently independent to attract privilege. The paper considers the way the courts have interpreted independence. The judicial tests reveal a number of different approaches to independence with limited connection to the core concepts.

Keywords: lawyers, in-house counsel, professional responsibility, ethics, independence