In-House Counsel

Company Conscience And The Corporate Counsel

The responsibility for corporate conscience is not the responsibility of ONE. It is a responsibility shared by ALL.

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Dictionary Series – EthicsIn its 2023 GC Survey Report, Axiom asked general counsels how they perceived themselves in terms of their role as the company conscience. According to the results of that survey, an overwhelming majority of general counsels saw themselves as guardians of the company’s values. While it does appear that “corporal counsel as company conscience” is now a widely accepted belief among many general counsels, that has not always been the case.

In 2013, then IBM general counsel Robert Weber penned the essay “Is the GC the Conscience of the Company? Maybe Not.” In that essay, Weber took the position that it was wholly inappropriate for a general counsel to serve as the company’s conscience. According to him, “[f]ew concepts would be as destructive as to the lawyer’s right to sit at the senior table as to place around the lawyer’s neck the millstone of being the company’s ‘conscience.'” Weber further argued that, by seeing the lawyer as the company’s conscience, the company would be elevating the lawyer’s status above other, talented senior leaders in the company and that “[t]here is nothing in [a lawyer’s] training that makes [the lawyer] better or worse suited on matters of conscience than any other senior leader at [the lawyer’s] company.”

In response to Weber’s essay, former General Electric general counsel Ben Heineman Jr. wrote his own essay “General Counsel Are One Conscience of the Company.” In that essay, Heineman pointed out that the general counsel was not the only conscience of the company. The general counsel was just one of many:

  • General counsel are clearly one conscience of the company in a process sense, along with other staff and business leaders. They raise issues for debate and discussion about what the company should do (a normative question!) in many evolving situations where neither law nor ethics are clear.

  • [E]very general counsel knows that on most hard questions of law and ethics, the CEO and business leaders or the CEO, business leaders, and the board will make the substantive decision: will choose among the options generated by the GC and other senior leaders. The general counsel may, in addition to analysis of options, make a recommendation about the desired course of action. But, on major issues, the CEO or board decides. And as substantive deciders, they are the ‘conscience’ of the company.

With the issue framed as Heineman has, it helps explain why there is a growing number of general counsels who see themselves as a part of the company’s conscience.

So What Is A Company Conscience?

When it comes to individuals, Dictionary.com defines conscience as “the inner sense of what is right or wrong in one’s conduct or motives, impelling one toward right action” or “the complex of ethical and moral principles that controls or inhibits the actions or thoughts of an individual.” Loosely applied to companies, it would seem fair to say that the company’s inner sense of what is right or what is wrong would be based upon the company’s ethics.

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What Is The Role Of The General Counsel As The Company’s Conscience?

As Heineman has stated, the general counsel is responsible for raising “issues for debate and discussion about what the company should do (a normative question!) in many evolving situations where neither law nor ethics are clear.” As I see it, general counsel satisfies the responsibility by actively participating in company functions relating to leadership, training, reporting, and investigating along with other staff and business leaders.

  • Leading: Senior administrators and managers are responsible for creating an ethical company culture: 1) by communicating expected ethical norms to employees; 2) by making all employees feel part of the company’s effort to create an ethical culture; and 3) by demonstrating ethical behavior.
  • Training: Senior administrators and managers are responsible for: 1) training all company employees about the company’s ethics and compliance program; and 2) training all company employees on how to use a systematic approach to ensure ethical business decision making.
  • Reporting: Senior administrators and managers are responsible for creating a process by which employees can report behavior they believe to be either unethical or unlawful without fear of retaliation.
  • Investigating: Senior administrators and managers are responsible for fairly and impartially reviewing alleged unethical or unlawful activity and fairly taking appropriate action.

When all is said and done, Weber was not wrong. The general counsel is not THE company conscience. As Heineman points out, the general counsel is merely ONE of many who serve as the company’s conscience. The responsibility for corporate conscience is not the responsibility of ONE. It is a responsibility shared by ALL.

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Lisa-Lang_241Lisa Lang is an in-house lawyer and thought leader who is passionate about all things in-house.  She has recently launched a website and blog Why This, Not That™ (www.lawyerlisalang.com ) to serve as a resource for in-house lawyers.  You can e-mail her at lisa@lawyerlisalang.com , connect with her on LinkedIn  (https://www.linkedin.com/in/lawyerlisalang/) or follow her on Twitter (@lang_lawyer).

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