Canadian Lawyer InHouse

December/January 2021

Legal news and trends for Canadian in-house counsel and c-suite executives

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40 ETHICS Putting equity, diversity and inclusion on the table Cheryl Foy and Ken Fredeen on navigating ethical dilemmas in-house WE'RE OFFERING this advice column to support you as you tackle ethical and professional issues. Go to canadianlaw- to submit your questions anonymously. QUESTION: I'm a senior in-house lawyer. There's no legal at the executive level in my organization. I don't have any responsibility for equity, diversity or inclusion and it's not really on the radar for my organization. I am worried that we aren't addressing the issue. What are the ethics around this? Do I have an obligation to put it on the table? How would I do that? FREDEEN: You are stirring a hornet's nest with me! There are significant red flags: an organiza- tion without a GC on the executive or broader leadership team of an organization and an employer that does not understand the impor- tance of diversity and inclusion. This sounds like an organization at risk. I feel strongly that inclusion and ethics are closely linked: Those who feel like they belong are more likely to raise concerns relating to unethical behaviour. I recommend the book Indispensable Counsel in which Chief Justice Veasey wrote: "The CLO is the guardian of corporate integrity." I have coached and counselled talented in- house lawyers into general counsel and senior roles and, although each situation is personal and different, I would ask you this: Why not you? What is holding you back from filling that senior legal role: you or the organization? The answer to that question might answer all your questions! Specifically, I believe that in-house lawyers are particularly well situated and skilled at shaping an organization's ethical and inclu- sive culture. Look at the general counsel who are members of Legal Leaders for Diversity and Inclusion to see what leadership can look like. These general counsel have not only played a significant role in creating a more inclusive legal profession but they have also played inclusive leadership roles within their organizations, promoting diversity and inclu- sion. This could be an opportunity for you. I am not sure that you have the obligation to put these issues on the table. I would only do so if leadership will support you. Look for allies within your organization to speak to about the linkage between ethics and diversity, the legal and reputational risk of doing nothing and your desire to take on a leadership role. The nearer these like-minded leaders are to the top, the better. You are rightly concerned that your values and ability to fulfil your professional obliga- tions are being compromised. If there are no allies at the senior levels, evaluate whether this is an organization to which you want to hitch your brand. FOY: I have been in your shoes. In my first role, I reported through the CFO and through that experience came to understand why not having legal at the executive table compro- mises a legal counsel's ability to meet their professional obligations. Using the B. Heine- man's "partner-guardian" framework, without a presence at the executive table, an in-house lawyer can be a partner to the business but is unable to serve as guardian. This is what you're experiencing. The organization struc- ture is impeding your ability to act in the best interests of your organization. Let's face it, though — rarely do we as in-house counsel get perfect clients, and the largest opportunity for impact exists with difficult clients. If you see an opportunity to make change and you stick it out, think of the good you can do! Your professional obligations require you to act in the best interests of the entity. Whether your current leaders know it or not, it is clearly in the organization's interests to champion EDI. I also agree that pushing against culture is difficult, lonely and can make an in-house lawyer miserable (been there, too!). However, this is a huge opportunity for you to play the long game and consider how you can move the needle on EDI. In one organization at which I've worked, I went from "we don't have time for governance" to a robust corporate governance long-range plan. It took more than five years of tiny steps. Be determined and focused and view time as an ally. Even if change takes time, every step forward is positive. Use this as an opportunity to develop your influenc- ing skills and look for opportunities to influence incremental cultural change. This is the kind of work you will be proudest of when you look back on your career. Cheryl Foy is university secretary and general counsel at Ontario Tech University. She provides strategic and tactical advice on matters of governance, jurisdiction, policy and process to all members of the university community. Ken Fredeen is general counsel emeritus and senior partner with Deloitte, where he leads Indigenous and accessibility initiatives. He also teaches on the role of the general counsel at the CCCA/Rotmans In-house Counsel Certification program. "If there are no allies at the senior levels, evaluate whether this is an organization to which you want to hitch your brand." Ken Fredeen

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