Sunday, 16 October 2011

Footnotes to The Bizzle's "The only way is ethics"

In a wittily titled recent post "The only way is ethics?", The Bizzle raised a whole series of issues about what companies say about ethical behaviour. I agree with his post and the conclusion "either walk your talk, or stop going on about it" is unarguable. But it seems to me there are several different strands wound together under this topic of "corporate ethics". I'd like to try to separate those strands. 

The debate in the room at the Corporate Counsel Forum focused on the "compliance" side of ethical behaviour and on creating a culture in a company to meet the challenge of legislation like the UK's new Bribery Act. That was the subject of my own post "Ethics and the General Counsel". As he said in his post, The Bizzle didn't set out to discuss this topic (but he has promised to at a later date).

We might call the next strand "ethics as a fig-leaf for the profit motive". Companies often talk about how ethical they are because they're embarrassed to say clearly that their primary, fundamental role is to be successful and generate profits. If they cannot be financially successful, they can't employ staff, they cannot spend money, they cannot fulfil their role in our economies. If they cannot achieve high performance, there's no point debating what more they might be responsible to do. I'm a meat-eating capitalist, so I don't have any problem being clear about this. But a lot of what gets branded "corporate ethics" looks to me like people trying to hide or soften this stark but important truth. 

It's sometimes difficult to separate the previous strand from the next one, which is when companies try to persuade us they are "good" in some unspecified way. Some of the thinking in this space is so confused and nebulous, it barely merits a response. I really don't know how to respond to "don't be evil" other than to remind people that the world really isn't a Manichean struggle. Even if it were, a
ny large company is, necessarily, made up of a lot of people and a great deal of dispersed activities. I don't see how this kind of terminology can even be meaningful. 

After this, we come to "Corporate Social Responsibility". In the past, some companies' communications about CSR have been muddled up with the "fig-leaf" and "goodness" strands I describe above. I have no time for that. But I do think CSR is a real and important part of what a high performance company should set out to do. This point is worth elaborating a little.

As individuals, we don't expect merely to go to work, comply with the law, pay our taxes
 and ask the state provide everything else. We form groups and take responsibility for all sorts of things in our communities. Now I don't want to come over all Big Society, but lots of people, whatever their politics, are engaged in activities they feel strongly about. They care and they're well placed to make a difference. They don't wait to be told what to do.

In the corporate context, it's probably best I illustrate with a real example. Recently, I went with four colleagues to visit a further education college which is five minutes walk from our office. We're in the process of establishing what we hope will be a lasting relationship. That college has 100 students studying IT. My employer is a large, British headquartered, multi-national IT company. Many of my colleagues think we might be able to help those students raise their horizons. The development staff at the college agree. We seem to be very well placed to make a difference in a targeted way. So we have a choice. We could obey the law, pay our taxes and hope someone else sorts it out. Or we can get involved. I know which makes sense to me. 

Finally, The Bizzle rightly highlights the type of self-serving nonsense you see from many procurement departments, who proclaim they are "partnering" ethically with suppliers before nailing them to the wall. There's a lot of writing on the symbiotic relationship companies have with their supply chains. That's one for another post.

Thursday, 13 October 2011

It's criminal on the 07:43 from Woking

This morning, just by coincidence, two people I follow on Twitter had very similar experiences while commuting on the train. Both saw a fellow passenger working on a laptop. We'll omit the names to protect the guilty, but the laptop-jockeys were lawyers, one of them at a famous magic circle firm. The details of their clients and the matters they were working on were clearly visible to their fellow passengers.

This sparked a light-hearted debate on Twitter about work life balance. Workaholic lawyers are using their train journeys to finish off those crucial PowerPoint presentations. The phrase "get a life" was used. But what went through my mind was "get a grip". There are serious issues involved.

Anyone who reads my blog regularly will know I am an advocate for normalising legal services, demystifying communications between lawyers and clients and bringing the profession up to date. But there are some things that are too important to compromise. A fundamental part of what makes a lawyer special is the promise of absolute confidentiality. The public don't understand legal privilege and I'm not sure much of the legal profession do either after Three Rivers. But they know that, like a priest in a confessional, a lawyer will keep your secrets, so you can tell them everything. This is true of every branch of the profession, from criminal briefs to in-house lawyers. In my own job, the ability to keep confidences, not most of the time but every single time, is a critical part of the role I perform. To operate effectively as a lawyer, you need to be unimpeachable when it comes to keeping secrets.

Let's just remind ourselves of some black letter rules here. SRA O4.1 states: "You must achieve these outcomes: you keep the affairs of clients confidential unless disclosure is required or permitted by law or the client consents". SRA IB4.2 states "you comply with the law in respect of your fiduciary duties in relation to confidentiality and disclosure".

If your client is a company listed in London, like my own employer, and the matter you're working on is inside information, then there's more. Section 52(2) (b) in Part V of the Criminal Justice Act 1993 states that an individual commits an offence if "
he discloses the [inside] information, otherwise than in the proper performance of the functions of his employment, office or profession, to another person." The maximum penalty for a violation is seven years in prison.

If a firm I instructed was to allow my company's confidential information to be seen on trains, I would disinstruct the firm, blacklist them and report them to the SRA. If an individual lawyer in my team did the same, I would fire them summarily for gross misconduct. 

If you think that a secret is something you tell one person at a time, you're in the wrong job. If you've got work life problems, resolve them. If you're on the train working on my file on your laptop, you're a criminal and you're fired.