A good example of fuzzy overlap between a legal department and other functions lurks with Codes of Conduct. How far should a general counsel claim to be the ethical beacon for the company? To what degree is ethical behavior a matter of laws and attorneys? What lines exist between the purview of compliance and that of law? What sustains the culture of a company and what do its inside lawyers contribute to that?
Any fool can ask questions a wise consultant can’t answer, so let me offer very preliminary thoughts. I do not believe that lawyers should be regarded as the conscience of a company, the icons of integrity. Of course, in-house counsel should behave morally, but so should everyone. Passing the bar does not knight anyone as a moral Jedi.
Nor do I believe, that enforcement of compliance with laws and regulations is the responsibility in the first instance of the legal department. The first line are business people, educated and supported by lawyers. As for culture and values, they extend far beyond acting legally. Thus, for the involvement of in-house counsel in Codes of Conduct, my first thought is to see things negatively: what is not the ultimate responsibility of the in-house legal team.
More positively, Codes of Conduct draw on ethics, compliance, and culture, so lawyers should by all means contribute to their drafting, their interpretation, their publicity, and their enforcement – but it is a contributory role (See my post of June 10, 2007: Code of Conduct for law department members; Oct. 6, 2006: Code needs support of general counsel; May 8, 2007: McKesson and its ethics hotline; Jan. 21, 2009: integration of Code of Conduct and outside counsel guidelines; and July 11, 2008: Ethisphere analysis and rating of Codes.).