Page 28 - January 2020 BarJournal

FEATURECRIMINAL LAW

THE IN-HOUSE LAWYER

AN INSTRUMENT OF OUR DEMOCRACY

BY JONATHAN B. LEIKEN & CAITLIN A. BELL

n-house lawyers are sometimes called the world’s oldest written constitution, drafted by John In Upjohn v. United States, the Supreme Court
“conscience” of a corporation. This descrip- Adams, and serving as a model for the U.S. Con- found that a broad corporate attorney-client privi-
tion — lawyer as conscience — is one way stitution). By its own words, the U.S. Constitution lege is important to our democratic principles,
of thinking about what a lawyer does. In this is “the supreme Law of the Land,” above all three explaining that “[t]he privilege recognizes that
I model, the legal profession acts as a guide or branches of the federal government and above the sound legal advice or advocacy serves public ends
a beacon to help clients, judges, juries, and even the governments and laws of the states. U.S. Constitu- and that such advice or advocacy depends upon
public move toward just outcomes. The model ex- tion, Art. VI, Clause 2 (the “Supremacy Clause”). the lawyer’s being fully informed by the client.” 449
plains in part why some students choose law school The Constitution is intended to codify as law the U.S. 383, 388 (1981). Justice Rehnquist highlighted
in the first place, inspired by fictional lawyers like highest ideals and values of the country. The three the American corporate lawyer’s role as teacher
Atticus Finch or legal icons like Clarence Darrow, federal branches of government are bound by this and guide, writing that, “[i]n light of the vast and
Thurgood Marshall, Sandra Day O’Connor, or supreme law: the legislature may pass laws consis- complicated array of regulatory legislation con-
Ruth Bader Ginsburg — lawyers well-known for tent with the Constitution, the executive faithfully fronting the modern corporation, corporations,
seeking just outcomes in the world. If the legal pro- executes those laws under the Constitution, and the unlike most individuals, ‘constantly go to lawyers
fession is a tool of justice, a lawyer working inside a judiciary interprets those laws through the prism of to find out how to obey the law.’” Id. at 392 (cita-
company can be seen as guiding the entity toward the Constitution. In America, the law itself is the tion omitted).
lawfulness, advancing just ends as a primary goal. conscience of society. Similarly, American corporate compliance is
Corporations, however, are complex organisms A society defined by the rule of law relies enforced by government lawyers at the United
with many working parts, whose decisions are upon lawyers, trained practitioners of the law, States Department of Justice and Securities & Ex-
shaped by multiple inputs. In larger companies, to ensure that the law is both understood and change Commission. The DOJ’s April 2019 Evalu-
the in-house lawyer is one influencer among many, followed. Lawyers are ingrained in all aspects of ation of Corporate Compliance Programs is a guide
including employees from finance, strategy, human America’s self-governance by its citizens. Indeed, to prosecutors about evaluating a corporation’s
resources, sales, marketing, and other areas. In ad- the legal profession is one of very few specifically compliance function as part of the legal determi-
dition to addressing purely legal considerations, the mentioned in the Constitution. U.S. Constitu- nation of whether to indict an entity. This DOJ
institutional lawyer is also expected to take into ac- tion, Art. III (regarding judges and the judicial memorandum and other lawyerly pronounce-
count the stated goals of the organizational client, branch), Art. VI (“In all criminal prosecutions, ments are relied on broadly in corporate America
whether commercial, governmental, educational, the accused shall enjoy the right ... to have the — companies refer to these as the standards for
charitable, or some combination of all of these. Assistance of Counsel for his defence.”). good corporate compliance. It is unsurprising that
There is not always an obvious or singular “just” American society relies on lawyers to uphold many corporate compliance functions in America
answer to complex questions, particularly inside a and sustain the rule of law. Consequently, lawyers report to, or are regularly reviewed and monitored
corporation. are expected to abide by higher standards than by, the company’s general counsel or other senior
The idea of the in-house lawyer as the con- most other professions. American lawyers are of- lawyers to ensure that the compliance program
science of the American corporation is rooted in ficers of the court, required to act with loyalty to the meets the standards and expectations embedded
our democracy. This is because the American ex- law — above all to the Constitution — and to follow in American law.
periment of self-government by citizens through a code of professional legal ethics. In most, if not all, While the roles of prosecutors, judges, defense
a written constitution is defined, above all else, by states, to become licensed as a lawyer, the applicant attorneys, and outside counsel in upholding our
the rule of law. Lawyers in America play a special, must swear an oath to protect and defend the Con- constitutional principles are often straightforward,
foundational role that ties their mission to this con- stitution, the adherence to which is regulated and and important in their own way, in-house lawyers
stitutional framework, whether in private practice, governed by state and local bar associations and frequently serve in many roles at once. In addition
in public service, or inside a corporation. courts. The Model Rules of Professional Conduct, to serving as the corporate entity’s advisors and
In creating “a government of laws, and not of and similar codes in each state that govern lawyers’ educators on the requirements of the law, corpo-
men,” the Framers of the U.S. Constitution estab- behavior, also require a lawyer to act, among other rate attorneys often also act as the organization’s
lished a society in which the law and legal prin- things, with loyalty to current and former clients, fact-finder/investigator, advocate, gatekeeper, and
ciples are preeminent and permeate every aspect candor to the court, fairness to opposing parties, rule-maker. In-house lawyers are often expected
of American life, including American business and truthfulness, and integrity to the profession. not only to help the client understand its legal ob-
other institutional pursuits. Massachusetts Consti- In America, the attorney-client privilege is cen- ligations, but also to determine right from wrong
tution, Part I, Art. XXX (1780) (functioning as the tral to our understanding of the lawyer’s mission. and to make decisions that are both lawful and ethi-

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