The Potential for Lawyers to Influence Corporate Decision Making

Between 1990 and 2011, News of the World journalists hacked the voice-mail accounts of more than 6,000 people. Tom Crone, an in-house lawyer for News of the World's parent company News International ('NI'), misled a parliamentary inquiry into hacking. He has since been arrested. Another NI in-house lawyer, Jonathan Chapman, is said to have 'turned a blind eye' to evidence of hacking that he did not want to investigate further. Last year, Rupert Murdoch attempted to lay part of the blame for hacking at the feet of Harbottle & Lewis, the law firm engaged by NI in 2007. This led to a bitter and very public falling out between NI and the firm. Farrers & Co, the law firm appointed by NI for the parliamentary inquiry into hacking, admitted they knew their client had been making misleading statements to parliament and the public but claimed they had no obligation to report such wrongdoing. Farrers have since been replaced with another firm.

This scandal and other recent instances of corporate wrongdoing (Barclays/LIBOR fixing, Standard Chartered Bank/Iran etc) bring into sharp focus the power of non-state actors and their capacity to impact on society. Such scandals also raise questions over the extent to which lawyers are or have been involved in corporate wrongdoing and how or if those lawyers can shape and control corporate actors. There is virtually no empirical data in England & Wales with which to answer these important questions. This three year project seeks to fill that gap. My overarching questions are what do lawyers (in-house and in law firms) think it is their job to do in advising clients and what are the risks arising from that advice?

The research for this project takes three forms:

1. Research with lawyers in large law firms

Companies seeking legal advice have two basic choices. Either they purchase advice from an external provider of legal services, such as a law firm, or they generate that legal advice internally through the employment of appropriately qualified persons (called, variously, in-house lawyers, general counsel and in-house counsel). Wherever they are based, solicitors are bound by professional duties which require them to "uphold the rule of law and the proper administration of justice" and to act in the best interests of their clients. I am interested in how corporate lawyers in large law firms perceive their role: do they think they just advise on the law or is there something more to what they can or should do? To answer this, I am going to interview corporate lawyers in large law firms and to use focus groups to get corporate lawyers to challenge each other on what they see as their role and function.

2. Research with in-house lawyers

With in-house lawyers, I am interested in their role and in particular in how they see their relationships with their employer, with the public and with their regulator (on which, see below). I plan to interview a number of in-house lawyers working for the largest companies in the UK to generate data to answer these questions.

3. Research with the Solicitors Regulation Authority

The Solicitors Regulation Authority ("SRA") is the regulatory body charged with oversight of more than 140,000 solicitors in England & Wales. I want to understand what the risks are for the SRA arising from the actions of large corporate law firms and from in-house lawyers. I also want to know how the SRA frames and manage those risks. To do this, I will spend time at the SRA's offices, observing the work of their Supervision of High Risk Firms Team. I will also interview team members.

WHO WILL BENEFIT FROM THE RESEARCH?

(a) Group 1 - the regulators of the legal profession in England & Wales (the SRA and the Legal Services Board) and the government (via the Ministry of Justice and the Department for Business, Innovation and Skills) need to be able to understand: (a) how lawyers in large law firms and in-house lawyers advise their clients; and (b) what are the risks from that advice.

(b) Group 2 - legal professionals themselves (lawyers in large law firms and in-house lawyers) need to be reflective and critical of their own work practices and of the potential for harm arising from those practices;

(c) Group 3 - corporate wrongdoing has the potential to significantly and detrimentally impact on the everyday lives of the general public. The role of lawyers is often forgotten in public debates on corporate wrongdoing.



HOW WILL THEY BENEFIT FROM THE RESEARCH?

(a) Group 1 - the monograph will benefit Group 1 by presenting a study, based in rigorous empirical research, of how lawyers perceive their role and function and what the risks are from that role. This group will also benefit from the 2 day symposium in Year 3 of the project, which will offer them a space in which to interact with other stakeholders (in particular, academics and legal professionals). Promoting a shared and better understanding of the nature of the complex issues linked to legal advice in the corporate sector will enhance the likelihood that the various stakeholders involved will be able to work together to achieve better regulation (soft and hard) in the future.

(b) Group 2 - research generated by this project will lead to practice advice for legal professionals. I will produce a briefing paper on professional obligations - 'Key Conduct Considerations for Corporate Lawyers' - which will advise on good practice. This group will also benefit from my development of a training workshop for lawyers that will introduce them to potential 'pressure points' in advising corporate clients through real world vignettes. This group will also benefit from the reflective space generated by the interviews and focus groups, in which they can take the time to think about exactly what it is that they do, the impacts of what they do and how their conduct and behaviour could and should be modified.

(c) Group 3 - the public lecture in Year 3 of the project and the media articles written during the lifetime of the project will benefit this group by: (a) bringing into the public domain the potential significance of corporate lawyers as vehicles for negatively impacting on everyday lives; and (b) starting a public dialogue on the proper role and function of corporate lawyers.