Solicitors acting in private practice and in-house in the public and private sectors, despite their often varying work structures, still share the same professional conduct obligations, including maintenance of professional independence and confidentiality and avoidance of conflicts of interest. While an in-house solicitor may only have one client, there is no difference in, or dilution of, these obligations.

In-house solicitors may also have additional obligations, depending on the nature of their client’s business or the ambit of their role (that is, whether the in-house solicitor has other roles, such as head of compliance/risk). For example, some in-house solicitors may be designated as ‘controlled functions’ under the Fitness and Probity Regime introduced by the Central Bank under the Central Bank Reform Act 2010 (as amended). Additionally, the Civil Service Code is a code of conduct for all civil servants and forms part of the terms of employment of all civil servants. A Gazette article published in March 2023 (p32) offers additional details on the legislation and guidelines applicable to solicitors in the full-time service of the State.

All solicitors admitted to the Roll must observe the highest professional standards and adhere strictly to their duties as officers of the court and as required by the Solicitors Acts 1954-2015 and the Legal Services Regulation Act 2015. Please see The Solicitors Acts: an eCompendium.

Misconduct applies equally to solicitors working in-house as it does to private practitioners. Misconduct by legal practitioners (solicitors and barristers) is defined in section 50 of the Legal Services Regulation Act 2015. That act provides that, among others, an act may be considered misconduct where it:

• In the case of a solicitor, consists of a breach of the Solicitors Acts 1954-2015 or any regulations made under those acts,

• In the case of a solicitor, is likely to bring the solicitors’ profession into disrepute.

An organisation that employs a solicitor will do so because of the specialist knowledge, experience, objectivity, judgement, and professionalism that he/she will bring to that organisation. The in-house solicitor will be required to apply these characteristics in many diverse situations, in the best interests of their employer, with due care and skill, while carrying out their instructions with due diligence. When an in-house solicitor observes the highest professional standards, it is to the ultimate benefit of the employer. The in-house solicitor must ensure that compliance with these professional standards is a priority in their day-to-day work.

It is particularly important when practising in-house to learn and understand, as soon as possible, the nature of the business and/or service provided by an employer (or, where relevant, its purpose and objectives) and the particular regulatory, business and economic, social and political contexts and environment in which such business and/or service is provided. As an employee, the in-house solicitor owes a duty of loyalty to the employer and (particularly in the public sector) may also have a statutory or contractual duty of confidentiality in addition to the general duty of confidentiality to his employer. The in-house solicitor will (not unreasonably) be expected to share the objectives of their employer, while at the same time, to maintain an objective and professional attitude and judgement and to ensure that he or she provides legal advice that is both independent and impartial. The independence of the in-house and public sector solicitor is also covered in Chapter 1 of the Solicitor’s Guide to Professional Conduct. Some helpful clarity as to what might have an impact on an in-house solicitor’s independence was provided by the Court of Justice of the European Union in Joined Cases C-515/17 P and C-561/17 P Uniwersytet Wrocławski and Poland v Research Executive Agency.

Should a situation arise where an employer instructs an in-house solicitor to act in a way that, in the opinion of that solicitor, could amount to unprofessional conduct on the part of the solicitor and/or which may even be illegal, the in-house solicitor cannot carry out those instructions and must ultimately advise that those instructions cannot be acted upon. It is recommended that the in-house solicitor, in that instance, should analyse the source and nature of the instructions received very carefully and objectively, undertake all necessary legal and other research, and consider all available options before advising the employer in this way. In most cases, the availability of other legal options should be explored, and the employer should be persuaded to choose those options. In particularly difficult situations, or where such advice is challenged by the employer, the matter might be resolved by seeking a second opinion from another solicitor or barrister. If this fails to resolve the matter, it may be necessary to raise the issue with an external party (perhaps even an authority) for guidance or resolution, being at all times cognisant of their duty of confidentiality.

In the most extreme circumstances, the in-house solicitor may even be required to step down from their position rather than follow the instructions, and it may be prudent for the solicitor to consider procuring their own employment law advice in such a scenario. The in-house solicitor’s professional judgement, objectivity, training, and independence will be tested in such situations, and knowledge of the employer’s business and its legal, regulatory, and business environment and obligations thereunder will be particularly important in seeking a resolution, ultimately to the benefit of the employer in the long run.

Every solicitor, whether in-house or in private practice, will be faced with difficult professional issues from time-to-time. This is inevitable, given the solicitor’s role. Difficult situations surrounding the exercise of professional independence are, however, very much the exception rather than the rule. In-house solicitors, particularly at a senior level, are generally valued for their judgement and objective contribution to the making of informed and legally correct decisions by their employer.

Solicitors and other professionals working in-house are often required to have a role in the governance of the legal entity that employs them, and senior in-house solicitors in particular may be well placed in their client’s organisation to help with governance and regulatory issues. With the awareness of the need for the application of good governance and regulatory principles and practice, this aspect of an in-house solicitor’s work (particularly in the corporate area) will continue to increase. Before accepting any governance role, care needs to be taken by the in-house solicitor to ensure that adequate and proper training is sought in governance, in particular in corporate governance. It is also important to be mindful that communications involving the in-house solicitor while performing a separate role in the organisation may not be subject to legal professional privilege, if such communications do not amount to legal advice given in the in-house solicitor’s capacity as a lawyer. (See the sections below entitled ‘Opinions – legal and otherwise’ and ‘Solicitor/client privilege’).

Many in-house solicitors come into contact with members of the public as a regular part of their role. A layperson may not appreciate that the in-house solicitor with whom that person is dealing must act in the interest of his/her employer only. Acting solely for the interests of the employer can often mean acting in a manner that fundamentally conflicts with the interest of the member of the public, for example, during a negotiation or dispute. It is best to limit such direct contact unless necessary and, if possible, direct such members of the public to obtain their own independent legal advice or to any customer care or complaints function, if one exists.

If there is any possibility that the situation is one where a perception of a conflict of interest may arise, then it is recommended as good practice that such an in-house solicitor should do the following:

• Ascertain whether the member of the public is legally represented,

• If the member of the public is legally represented, then all dealings should be directed via that person’s solicitor,

• If the member of the public is not legally represented, it should be explained to that person that the in-house solicitor acts solely for and in the interests of the employer, that they are precluded from acting on the person’s behalf, and that it is in their best interests to seek independent legal advice (it may be necessary to confirm that in writing). For vulnerable members of the public, it is best to be even more vigilant and ensure clarity in communications, making careful notes of any discussions.

See also Chapter 1 of the Law Society’s Regulatory Guide for In-house Solicitors Employed in the Corporate and Public Sectors (which has a section on ‘Providing legal services to third parties’) and Chapter 6 of the Law Society’s Solicitor’s Guide to Professional Conduct (which has a section on ‘Persons acting without legal representation’).

The giving and receipt of solicitor’s undertakings is part-and-parcel of a client service in private practice. For a detailed statement of the Law Society’s guidance with reference to undertakings, please refer to Chapter 6 of the Law Society’s Solicitor’s Guide to Professional Conduct. See also the practice note issued by the Society’s Complaints and Client Relations Committee and the Guidance and Ethics Committee in March 2011, ‘Notice to all practising solicitors – undertakings’.

The professional obligations in relation to undertakings are no different for a solicitor working in-house than the position of colleagues in private practice. In-house solicitors are therefore responsible for their own undertakings and for those of the staff who report to them. It is recommended that the in-house solicitor’s professional personal duty to comply with undertakings and the consequences of non-compliance should be explained, as often as necessary, to the employer.

In-house solicitors should not give a professional undertaking unless they have express authority in writing from their employer to do so. Furthermore, an in-house solicitor should not give an undertaking to do something in any area of the organisation’s business/service that is outside that solicitor’s control or delegation. As an employee, the functions delegated to an in-house solicitor will be limited (and should be clarified), and therefore undertakings should be correspondingly limited to those delegated functions. There may exist monetary caps or limits of insurance that will need to be carefully agreed and documented. For example, if the performance of some function is reserved to another employee or category of employees of the employer, that matter should not be the subject of an undertaking given by the in-house solicitor, because it is outside such solicitor’s control. If it is uncertain that a function is or will remain in the control of the in-house solicitor, sufficient and specific delegation of that function should be sought before that undertaking is given, so that the undertaking is capable of being honoured.

When an in-house solicitor is asked to give an undertaking on behalf of the employer, and it is clear that the intention is only to have an agreement or understanding with a third party, it should be clear on the face of that ‘undertaking’ that it is given only as an agent on behalf of the employer, that it is in the nature of an agreement or understanding, and that it is not a professional (that is, solicitor’s) undertaking or capable of being misunderstood in that regard. It is considered that any ambiguity in the text would most likely be construed in favour of the interpretation placed upon it by the recipient of such an undertaking.

A situation could arise where the in-house solicitor is instructed to seek an undertaking from a solicitor colleague, which that colleague should not give. If the other solicitor should not give such undertaking, then the in-house solicitor should not request it (see the practice note issued by the Society’s Guidance and Ethics Committee in 2016, ‘Do not seek undertakings that should not be given’).

Solicitors working in-house in the legal function of publicly quoted companies, or with a publicly quoted parent, should be aware that they may have a particular role in areas such as corporate governance and compliance of such public companies, and they should take specialist advice on such obligations where necessary.

Among the possible areas of involvement are:

• To provide information and analysis necessary for directors to discharge their oversight and/or public filing and disclosure responsibilities, particularly where they relate to legal compliance matters,

• Responsibility for ensuring the implementation of an effective legal compliance system with the oversight of the board of directors – increasingly, this covers whistleblowing and codes of conduct, as well as legal and regulatory compliance,

• To ensure that all reporting relationships between internal and external legal advisors are established at the outset, with a direct line of communication with the in-house solicitor through which external legal advisors are to inform the in-house solicitor of material, potential, or ongoing breaches of the law or breaches of the legal duty to the corporation. For additional commentary, see also Chapter 3, which deals with the relationship with external advisors.

There is no general professional duty imposed on an in-house solicitor (acting as a solicitor) to advise the employer on the commercial or operational wisdom of transactions – that is, other than on the relevant law. However, a request for legal advice from an employer may in many cases involve an assessment and judgement of the employers’ business/service, and therefore advice tendered may potentially contain elements of business as well as legal advice. Accordingly, it is important for the in-house solicitor and their employer to agree on the authority vested in the in-house solicitor in that capacity and to ensure that, if such business advice is given, it be identified and viewed as such, with clarity on the legal issues also given at the same time. It is also important for the in-house solicitor to be cognisant that legal professional privilege may not apply where advice given is not considered to be legal advice given in the in-house solicitor’s capacity as a lawyer (see the section below, ‘Solicitor/client privilege’).

When imparting legal advice, it is important to consider the context and purpose of the request when deciding to offer written or oral advice. When written advice is sought or deemed necessary, the greatest possible care needs to be taken with the relevant research and conclusions. A document or email containing formal legal advice or written in contemplation or anticipation of legal proceedings may need to be identified as ‘legally privileged’ – see below.

Solicitor/client privilege is a complex area, and-in house solicitors should consult the practice notes published by the Guidance and Ethics Committee and the In-House and Public Sector Committee of the Law Society in July 2020, ‘Legal professional privilege’ and ‘Legal professional privilege and in-house counsel’. The practice notes represent guidance on best practice for practitioners in the area of legal professional privilege, and do not constitute legal advice. They provide a comprehensive overview of the law in relation to legal professional privilege and the issues that arise.

On a general note, solicitors working in-house should be aware of the risks that arise in relation to privilege, data information requests, freedom of information requests, and the discovery process in litigation or external investigations, and the importance of having an efficient document and records management system throughout the organisation. E-discovery is increasingly used to save costs, and external review of servers is commonplace – therefore, ensuring that your advice to the business is privileged (and understanding when a communication will be considered privileged) is even more important today, as such a review can access all your written communications and emails sent over many years.

When proceedings are issued by an in-house solicitor, it should be made clear to the party receiving the summons and to that person’s solicitor that the summons has emanated from a practising solicitor acting in a solicitor/client relationship.

If proceedings are being issued by the in-house solicitor on behalf of his or her employer, the solicitor should go on record either in the solicitor’s own personal name, the name of the senior solicitor in the organisation or, if the individual practises under a business name, then under the business name. The solicitor should not go on record solely in the name of the employer.

Section 72(1) of the Solicitors (Amendment) Act 1994 states that only solicitors who hold a practising certificate that is in force shall have all the powers conferred upon a commissioner for oaths. As solicitors in the full-time service of the State do not hold practising certificates, they are not permitted to administer an oath. Whether an in-house solicitor may do so will depend on whether they hold a practising certificate that is in force. Naturally, even if they hold a practising certificate, an in-house solicitor cannot administer an oath in respect of an affidavit of a colleague in a matter done as part of their employment. Please see the section ‘Administering oaths’ in the March 2023 Gazette article ‘Done the State some service’ (p35).