In-house Lawyers Only Say if Clients Can Do Something, Not if They Should: I don't think so
In-house lawyers only tell clients if they “can” do something, but not if they “should.” Compliance departments take care of advising about the “should.” I came across that distinction today in an article on Law.com about Pfizer. I have no personal knowledge about the Pfizer situation, but, generally speaking, this distinction simply amazed (infuriated) me. How can: whether or not something may violate a regulation, put your client at risk of litigation or a claim, or in any way violate a legal standard not be part of a law department’s analysis for its in-house clients?
Last I heard, staying out of trouble with corporate constituents (including regulators) was good long term business strategy. If management needs a compliance nanny to tell it the right thing to do the problem isn’t with the law department. If management doesn’t trust -- or believe -- its lawyers’ counsel, maybe it has the wrong lawyers. I still think that lawyers are supposed to be "trusted advisers" but not deciders of business strategy.
The can/should distinction reflects the opinion held by some lawyers who have never been in-house that somehow in-house lawyers don’t really functioning as counsel to their in-house clients, or are ethically deficient.
