In-House Counsel

In-House Counsel? Don’t Forget To Serve Your Client

Always remember that you owe a duty to clients to give them advice and follow their decision.

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As in-house counsel, we occupy a unique role in our respective companies.

We serve as both the resident attorney responsible for providing legal advice when called upon, as well as a trusted colleague to our peers and many members of the C-suite.

As such, we are brought in earlier and more frequently than most outside counsel. We have an active rapport with the leadership of our company and we often are called on to provide our guidance on matters which may not even be entirely legal in nature.

Which is all to say that every once in a while, it can be easy to forget that the role of an in-house counsel is, first and foremost, to provide your client with the legal ramifications of a potential decision and allow them to make the decision in the best interest of the company. Not to to make decisions sua sponte.

To those fresh off the August MPRE thinking the above sounds familiar, you are right. It is a rough restatement of Model Rule of Professional Conduct 1.2 which governs the scope of representation and allocation of authority between a client and lawyer which states, “a lawyer shall abide by a client’s decision” unless otherwise permitted by the client.

To put it succinctly, as in-house counsel, unless your company has granted you prior authorization to settle a matter on your own, you owe a duty to them to give them advice and follow their decision.

Even though this is one of the first model rules, and admittedly rather common-sense advice, it can be remarkably easy to forget during the throes of litigation or during a particularly intense day in the office.

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Recently several members of our legal team met with our company’s general counsel to discuss a possible settlement on a pending case we had just been alerted to. Given this case involved several patients, it had moved beyond what we would normally classify as a traditional medical malpractice case and into the realm of one with the potential to leave lasting harm to our hospital and its reputation.

Our potential paths forward were rather straightforward. Settle the matter now, at the rather sizable demand we had received from opposing counsel, or proceed with the case knowing our hospital would likely face a healthy amount of media and public scrutiny.

After we presented the facts of the case to our general counsel, he was steadfast in his recommendation we pursue the case. The doctor who had been accused was one of the hospital’s most respected physicians and he knew the trial would prove the physician had acted appropriately in all instances that were now under question.

Before anyone on my team could offer some counterpoints to his logic, they were dismissed and the meeting was over.

Although he was likely right in his assessment of our likelihood for success at trial, I could not help but hang back to remind him the decision on the case should ultimately rest with our CEO and not with our department. After all, while we in the legal department felt confident we could prevail on the case, ultimately our client would be the one who would need to weigh whether a prolonged court battle coupled with the possibility for intense media attention was worth it.

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When you are outside counsel coming in to assist, it’s rather difficult to forget your role in a given case. Assess the situation, advise the client of their options, and execute their directive.

But when you are in-house, lines can become blurred, pride in your company can influence your judgment, and you may want to act in a manner contrary to your client’s wishes.

Which even when the legal path forward seems obvious, it is paramount to remember to always serve your client and not your own self-interests.

Stephen R. Williams is in-house counsel with a multi-facility hospital network in the Midwest. His column focuses on a little talked about area of the in-house life, management. You can reach Stephen at stephenwilliamsjd@gmail.com.

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