Chancery Lane said the protocol clarifies expectations between the in-house solicitor and their employing organisation, and represents its view of best practice for the employment of in-house solicitors.
“We recommend this protocol is presented to the central guiding entity within the governance structure of the organisation for sign-off,” it added.
The protocol covers the role of the legal function, professional obligations, and best practice.
In relation to professional obligations the protocol says: “Solicitors have a duty to act in the best interest of their client, which for in-house solicitors is the organisation, not any single leader within it.
“(In public and third-sector organisations, the situation is more complex. The client is still the organisation, and the solicitor still takes instructions from the client.
“But the solicitor will also take into account the interests of the people the organisation is there to serve (for example, the general public or the beneficiaries of a charity) and in the case of the civil service, the Civil Service Code.)”
The protocol also stresses that solicitors have professional duties. “These include a duty to uphold the SRA Principles, which safeguard the public interest.
“Where these conflict with the duty to act in the client’s best interest, the duties which have the purpose of safeguarding the wider public interest take precedence.”
In terms of best practice, the Law Society’s recommendations include:
- The employer does not ask solicitors to act in a way that conflicts with their professional obligations. “Such commitment is included in employment terms, alongside the commitment to provide insurance and/or costs coverage for claims and detriment suffered by lawyers in the proper fulfilment of their duties”
- The legal function has reporting lines which empower it to advise the organisation directly and effectively on legal matters. “Ordinarily, this will mean the most senior lawyer reporting to the most senior executive within the organisation (for example, the chief executive officer or managing director)”
- The most senior solicitor has access to the governing mind of the organisation
- The legal function should: be provided access across the organisation; be consulted at an early point on significant projects and programmes with potential legal implications; and have continued input into these projects and programmes at their discretion, including providing a view on whether or not a project has legal implications
- The legal function should be granted access to the resources it requires to perform its role effectively, including staffing proportionate to its responsibilities and funding for continuing professional development.
The protocol also calls on the legal function, under the supervision of the most senior solicitor, to "compile and retain a record of material legal and ethical issues encountered as part of an annual learning and development record, and this should be reviewed by the board (or equivalent) at least annually”.
In March 2024 the Solicitors Regulation Authority published guidance on understanding in-house solicitor's professional obligations as an employer. This was updated in November last year.