Strengthening in-house lawyer ethics
- Start date: 1 September 2018
- End date: 1 January 2023
- Primary investigator: Trevor Clark
- External co-investigators: Richard Moorhead (Exeter University), Professor Steven Vaughan (UCL), Dr. Alan Brener (UCL) and Paul Gilbert
This research, which involved engagement with practitioners, policymakers and other stakeholders, the first stage of which was a research project commissioned by the Financial Services Culture Board, explored ways of bolstering the corporate governance and ethical leadership of banks and other large business organisations by strengthening and formalising the position of senior in-house lawyers, including through their relationship with non-executive directors.
In the most recent paper, published in Legal Ethics, we critique an FCA consultation process and its ruling. We assert that the FCA's decision to rescind its original recommendation to designate bank general counsel as ‘Senior Managers’ under the SMCR, with duties to monitor and prevent regulatory breaches, upon pain of personal liability, was flawed.
We make an argument that in-house counsel in large financial institutions should be viewed as professionals acting in the public interest, rather than narrow legal technicians, and we show how such a role is supported by theories of harm avoidance and the public interest, as well as empirical accounts of the influence in-house counsel exert on strategic decision making and in authorising corporate decisions.
I presented this paper at the International Working Group of the Legal Profession Annual Meeting in Coimbra Portugal in June 2022.
Publications and outputs
- Trevor Clark, Richard Moorhead, Alan Brener and Steven Vaughan, “Agency over Technocracy – “How Lawyer Archetypes Infect Regulatory Approaches: The FCA Example” (2022, Legal Ethics) https://www.tandfonline.com/doi/full/10.1080/1460728x.2022.2059742
- Trevor Clark, Richard Moorhead, Alan Brener and Steven Vaughan, “A Response to the Financial Conduct Authority’s Consultation Paper CP19/4 on the Senior Manager and Certification Regime” (2019) SSRN Scholarly Paper ID 3368896 – https://www.ucl.ac.uk/ethics-law/publications/2019/apr/response-fca-consultation-paper-cp194-senior-manager-and-certification-regim
- Trevor Clark, “Conferring with poachers – Bank GCs excluded from Senior Managers Regime after entirely predictable lobbying”, Legal Business – https://www.ucl.ac.uk/laws/news/2019/aug/trevor-clark-writes-guest-post-legal-business-financial-conduct-authority-consultation
- Richard Moorhead Trevor Clark, Alan Brener, Paul Gilbert and Steven Vaughan, “In-House Lawyers and Non-Executive Directors: A Discussion About Best Practice” (2019) SSRN Scholarly Paper ID 3410929 – https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3410929