The In-House Counsel as a Trusted Governance Advisor

Abstract

Senior in-house counsel has a challenging role in working with other management, reporting to the board of directors, and having a duty to the company. There are governance matters where in-house counsel provides advice that must be in the company’s sole interest and not the interests of any individual, particularly when individual interests may be, or may be seen to be, adverse to the best interests of the company. Therein lies the challenge. This article will level-set ten areas that are especially challenging for in-house counsel, where navigating divergent interests and providing cogent advice to a board of directors may enhance in-house counsel’s credibility, advancement and confidence by the board of directors as a trusted governance advisor. This paper will discuss in-house counsel’s advice on the following matters: (i) the CEO’s employment contract; (ii) the evaluation of the board’s performance; (iii) the retaining of independent opinion by the board; (iv) the ethical conduct of management; (v) the ethical conduct of directors; (vi) tension between the board and management; (vii) governance policies and other documents; (viii) the compensation of management; (ix) the effectiveness of auditing and other assurance functions; and (x) meetings between directors and investors.