THE IN-HOUSE LAWYERS' GROUP - Guide for New In-House Lawyers - Edition 3, November 2012
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THE IN-HOUSE LAWYERS’
GROUP
Guide for New In-House Lawyers
Edition 3, November 2012
Guide for New In-House LawyersCONTENTS
Page
INTRODUCTION 2
THINGS YOU NEED TO KNOW ABOUT WORKING IN-HOUSE
• Key characteristics of the in-house lawyer 3
• What’s in a name: your job title 4
• Complaints and the in-house lawyer 5
• The SLCC annual levy 6
• Liability and insurance 7
• Conflict of interest 8
• Notarising documents 8
• Legal privilege and confidentiality 9
THE IN-HOUSE LAWYERS’ GROUP
• What is the In-House Lawyers’ Group and what does it do for in-house
lawyers? 12
• In-House Lawyers’ Group events 13
• Contact us 13
Guide for New In-House Lawyers 1INTRODUCTION Hello! Welcome to the Guide for New In-House Lawyers! Being an in-house lawyer brings its own unique and exciting pressures, challenges and rewards. You will get the opportunity to be directly involved with the business of your new employer and will develop skills and expertise not found in the private sector. This is a summary of the main things you need to know to help you get started. It’s particularly important to read this if you have previously worked in private practice because working in-house is different. We are driven by adding value to the business of our employer. More detailed information can be found on the In-House Lawyers’ Group (ILG) web pages. An in-house lawyer is a trainee or qualified solicitor who does not work in private practice (i.e. a law firm) you will be a solicitor enrolled in Scotland and employed in public service such as: the Crown Office; Procurator Fiscal’s Service; Central or Local Government. Alternatively you may be employed in industry/commerce such as in an Energy, Media or a Financial Services company. The number of in-house lawyers in Scotland has increased over the years and currently accounts for one third of all enrolled solicitors in Scotland. This number is likely to continue to increase in the coming years. This Guide is produced by the In-house Lawyers Group. You’ll find more information about us and what we do for in-house lawyers on page 12. We hope you find this Guide useful! If there is information you require that you can’t find in the Guide please get in touch with us as we’d love to assist you. Lynda Towers Chair, In-House Lawyers’ Group Guide for New In-House Lawyers 2
THINGS YOU NEED TO KNOW ABOUT WORKING IN-HOUSE Key characteristics of the in-house lawyer Some of the typical characteristics of the in-house lawyer which are different from those of a private practitioner are: 1. You have no client base You act for your employer yet you are still independent. As an in-house lawyer you give legal advice exclusively to the company and not to third parties. As you exercise your role under a contract of employment your activity is governed by employment law. This doesn’t mean that you can’t be intellectually and technically independent from your employer (and this has been confirmed by court decisions - Crompton v Customs & Excise Commissioners [1972] 2 All E.R. 353 ). On the contrary, that independence is very important as it serves both the interest of the organisation and the public interest. It does this by integrating into business practices respect for the law and professional ethics. 2. You are a legal expert You have a variety of tasks rather than specific instructions and your job may not be wholly legal work, e.g. if you work in industry you may be regularly giving commercial and common sense advice as well as legal advice. You may be expected to have a good general knowledge of the law, rather than expertise in one specific area. You may be involved in implementing, drafting or instructing new legislation. Occasionally you may need to source external advice, for example on particularly specialist issues. If this happens you may be acting as the client contact for the external adviser in which case you are acting as both lawyer and client. 3. You are part of a multi-disciplinary team: You may have company secretarial duties and risk management responsibilities as well as doing strictly legal work. Guide for New In-House Lawyers 3
What’s in a name: your job title If you have a Practising Certificate then your title can be (but need not be) "solicitor" or a relevant derivative. If you are legally qualified but do not have a practising certificate, then you cannot have “solicitor”, or derivative, in your title. Instead you might be called "manager, group legal services" or in a business area, "senior adviser, corporate banking". Anyone who uses a legal title like “solicitor” must have a Practising Certificate. We look upon the title as going with the right to practise—if you want the job title that implies you are currently entitled to practise as a solicitor, get the certificate. Having a Practising Certificate should be seen as evidence of meeting certain basic but important criteria in the eyes of the Society, which entitles you to call yourself a solicitor. Guide for New In-House Lawyers 4
Complaints and in-house lawyers
As an in-house lawyer, you act for your employer who is in effect your client. The
majority of complaints against solicitors which are investigated by the Law Society of
Scotland (Society) or the Scottish Legal Complaints Commission (SLCC) are made
by clients, and therefore it is less likely in an in-house position that you will receive
such a complaint. However it is possible that a complaint could be made in 2
circumstances:
1. A complaint about the service instructed by a client (in your case your
employer) by someone who has been directly affected by that service (section
2 (2) of the Legal Aid and Legal Profession (Scotland) Act 2007). Those that
are directly affected by the service are not just those who are to benefit from
that service, but also “the other side” of a transaction or court action.
2. A complaint about your professional conduct, which can be made by any
person. This is not limited to people involved in the work which gives rise to
the complaint, and it is important to note that a complaint can be made about
your conduct in your personal life as well as your professional life.
Note that there is a specific exemption given to Crown Office counsel and procurator
fiscals (under section 46 of the 2007 Act) for anything done in relation to the
prosecution of crime or investigation of deaths. This can’t be a subject of a complaint
under this Act and is also not in itself capable of constituting professional misconduct
or unsatisfactory professional conduct. The Crown Office has its own complaints
procedure.
Further information
The Society has a section on its website giving information to solicitors on how to
deal with complaints received, and what will happen if a complaint proceeds beyond
this stage. Please see: http://www.lawscot.org.uk/members/regulation-and-
standards
If you need further guidance about a complaint, please contact Mary McGowan,
Head of Regulation Liaison tel: 0131 476 8168 or email:
marymcgowan@lawscot.org.uk
The SLCC also has information for solicitors available on its website:
www.scottishlegalcomplaints.org.uk/
Guide for New In-House Lawyers 5The SLCC annual levy As a solicitor holding a practicing certificate, you are liable to pay the levy which is used to fund the SLCC’s functions. It is the responsibility of the Society to collect this from every solicitor by 30 June of each year. In-house lawyers pay this at a reduced rate – for 2010/2011 it was £78. The levy is a personal liability, although your employer may choose to pay this for you. If you have any questions regarding payment of the levy, please contact the Society’s Registrars department: registrar@lawscot.org.uk. Guide for New In-House Lawyers 6
Liability and Insurance The Law Society’s single Professional Indemnity Insurance Scheme (the Master Policy) is not available to in-house lawyers. Usually your employing organisation will put in place professional indemnity insurance arrangements for its in-house lawyers. There is no legal requirement for this insurance to be in place so it’s a good idea to check that your employers do have professional indemnity insurance arrangements which provide cover for legal advice provided by an in-house lawyer in your capacity as an employed solicitor. Also it’s important that you think about liability and insurance before giving advice outside of your role. For example if you are employed to act in-house as a commercial lawyer but one of the managers of your employing organisation asks you to give them personal legal advice about the sale of their house, a dispute with a neighbour or a divorce, then it’s likely that this would be uninsured advice. So you should always think carefully before giving advice outside your role as you could be faced with issues of personal liability. See also the “Conflict of Interest” section on page 8 below. Guide for New In-House Lawyers 7
Conflict of Interest
Conflicts of interest can arise in-house as well as in private practice. To spot a
conflict you should ask yourself:
• Am I being asked to give advice to someone other than my employer?
• Am I being asked to give advice on a subject matter which is outside the remit of
my employment?
• Do I have a personal interest in the matter I am being asked to give advice on?
• Where two parties are involved in the same matter would my advice to the parties
be different?
If the answer to any of the above is yes then you should carefully consider your
position and consult the relevant rules, which you will find on the Law Society website
under Rules and Guidance, at Section B2: http://www.lawscot.org.uk/rules-and-
guidance/table-of-contents
If you still think there may be a conflict of interest you should refer the matter to your
line manager/ superior. Alternatively you can contact any of the Committee Members
of the ILG and/or Coral Riddell, Head of the Professional Practice department of the
Law Society (tel. 0131 476 8199 email: coralriddell@lawscot.org.uk)
Here are some examples of conflicts that have arisen in local government and how to
avoid them:
• Where an authority sets up a company or agrees to be a member of a
company, external solicitors should be appointed to advise the company.
• Where a joint venture is set up with another public body (e.g. Health Boards),
each body must continue to receive separate legal advice.
Notarising Documents
What do you do if a colleague comes to your desk and asks you to notarise a
document? Note that you must have a current Practising Certificate to act as a
Notary. However, there is no conflict as such in an in-house lawyer notarising
documents as doing this does not create a solicitor/client relationship. You should
always follow the usual guidelines for Notary Publics which are available on the
Society’s website in the “Rules and Guidance” section:
http://www.lawscot.org.uk/rules-and-guidance/section-f/division-e-acting-as-notary-
public/guidance/guidance-re-acting-as-notary-public
Guide for New In-House Lawyers 8Legal Privilege and Confidentiality
The doctrine of legal privilege is a keystone of our legal system. Here are some basic
key points and practical tips for in-house lawyers.
Privilege is important because it allows documents which are relevant, reliable and
possibly decisive to be excluded from consideration in legal proceedings and
regulatory investigations. It also preserves client-lawyer confidentiality which is still
important in-house. There are two types of privilege:
1. Legal Advice Privilege: Communications between a client and lawyer for the
dominant purpose of seeking or giving legal advice (on any area of the law).
2. Litigation Privilege: Communications including those with third parties which
are made for the dominant purpose of ongoing or expected litigation (i.e. an
adversarial rather than an investigative or inquisitorial process).
Once a third party has a document, privilege will have been lost unless you can
argue that the document should never have been disclosed in the first place.
Privilege can also be lost if the document is circulated too widely internally.
There are two main reasons why privilege is different for in-house lawyers:
1. An EU law difference - Under current EU law in-house lawyers are not
covered by legal privilege in relation to EU Competition law investigations
(Akzo Noble Chemicals Ltd v The Commission). However UK law does
cover in-house lawyers who hold a Practising Certificate and this is
recognised by UK case law.
2. A practical difference - Because in-house lawyers are often closer to their
“client” it can be more difficult to prove that something was legal advice,
rather than commercial advice, depending on how independent the lawyer is.
Guide for New In-House Lawyers 9Freedom of Information and Environmental Information Requests The Freedom of Information (Scotland) Act 2002 (FOISA) came into force in January 2005 and aims to increase openness and accountability by enabling any person to obtain information from certain public bodies in Scotland. FOISA applies to Scottish public authorities; see Schedule 1 of FOISA and any amendments for the full list. This general right of access includes all types of “recorded” information including old records and archives held by Scottish public authorities. Examples of types of information which may be requested are: • the provision, cost and standard of its service • factual information or decision-making • the reasons for decisions taken. If you work for a public authority which FOISA applies to then you may have to advise on FOISA requests your organisation receives. From a practical perspective you should take care when writing minutes of meetings where decisions are taken as these may be subject to an FOISA request later. You should familiarise yourself with the provisions of the FOISA (e.g. what constitutes a valid request, exemptions, the public interest test) and your organisation’s own Publication Scheme (which contains details of the classes of information which the authority publishes or intends to publish) and its FOISA policies and procedures. If you work in commerce and industry then FOISA can also be relevant as information your organisation gives to a public body may be subject to a FOISA request. If the request is granted then it could be disclosed to a member of the public. The Environmental Information (Scotland) Regulations 2004 (EIRs) create a self standing system of giving public access to environmental information held by a range of bodies including public authorities. Environmental Information is defined very widely and includes any information relating to the state of the elements of the environment including air, water, soil, land and information relating to roads. The EIRs are similar to the FOISA but it is important to ascertain which legislation the request should be considered under as there are differences between the two. The rules concerning charges for information are different and all the exceptions under the EIRs are subject to the public interest test. Guide for New In-House Lawyers 10
Practical tips
Here are some things you can do to help ensure your advice is protected by privilege
or kept confidential so that it does not have to be disclosed in a FOISA request, when
required:
• Make it a habit to clearly label privileged or confidential documents and emails.
For emails make the privileged status clear in the email subject heading.
• Do not amend confidential or sensitive external advice or quote from it in
internal or external communications.
• Limit the internal circulation of confidential information on a need-to-know basis;
be particularly careful with email advice.
• Avoid putting advice which you want to be privileged or confidential in a
document which covers other things—keep it stand-alone.
• Instruct external legal advisors if written advice is required on potentially
troublesome EU competition matters or avoid written advice.
• When getting advice from a non European Economic Area external lawyer, e.g.
a lawyer from the USA, then have the document sent to you via an external
lawyer registered within the EEA. Not sure I understand where this comes from
and why the post box makes any difference.
Your company may also have its own “dawn raid” procedures – for example
procedures for unexpected investigation visits by competition regulators - which you
should familiarise yourself with.
Guide for New In-House Lawyers 11THE IN-HOUSE LAWYERS’ GROUP What is the In-House Lawyers’ Group and what does it do for in-house lawyers? The In-House Lawyers’ Group (ILG) was established in 1973 as a non regulatory, independent committee of The Law Society of Scotland to represent and promote the interests and status of in-house Scottish solicitors. ILG aims to develop and encourage better training of solicitors, strengthen relationships between private practice solicitors and in-house lawyers, and comment on proposed legislation. If you are an in-house lawyer with a Practising Certificate from the Society then you are automatically an ILG member. There is no extra charge for ILG membership. As in-house lawyers, we are employed by a diverse range of organisations but we share a number of common concerns. The Committee actively develops networking opportunities and we encourage you as members to participate in these events — they provide unique opportunities to meet others in different organisations and share in their knowledge and build useful contacts and relationships. The Committee is very proactive about its ongoing relationships with private practice lawyers, the Bar and other related organisations which provide an increased wealth of knowledge and support to members. The ILG receives its funding from a budget agreed annually with Society. It functions through a Committee which has a maximum of 18 members. Currently, 3 Committee members also sit on the Society’s council. See the ILG web pages for details of the current Office Bearers and other Committee Members. Current Council members: From left to right: Lynda Towers, Sheekha Saha, and John Forsyth. Guide for New In-House Lawyers 12
ILG Events
• Evening Seminars: ILG holds a full programme of evening seminars on a wide
range of topics each year from September to May. These are held in Edinburgh
and are available via video conference to numerous locations throughout
Scotland. Evening seminars are FREE for members.
• Annual Conference and Networking Dinner: This event is held every Autumn
and features a variety of presentations on topical issues during the day and a
formal dinner event in the evening.
• The 21st Century Bar: This is a full day conference which is usually held at the
beginning of December each year as a joint event with The Faculty of Advocates.
See the ILG web pages for details of the latest events:
http://www.lawscot.org.uk/events
Contact Us
We encourage you to contact the ILG with any issues for the Committee to discuss,
topics for seminars, suggestions for the website or any other feedback. Our contact
details are:
Email: ilg@lawscot.org.uk
Telephone: 0131 226 7411
Website: http://www.lawscot.org.uk/members/in-house-lawyers/in-house-
lawyers'-group
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