In-House Counsel as an Independent and Trusted Governance Advisor

Abstract

In-house counsel may have 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 governance areas that may be especially challenging for in-house counsel, where remaining independent, 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 an independent and trusted governance advisor. This paper will discuss in-house counsel’s advice on the following matters: (i) the contract between the company and the CEO; (ii) the evaluation of the board’s performance; (iii) the retaining of an independent opinion by the board; (iv) the ethical conduct of employees; (v) the ethical conduct of directors; (vi) tension between the board and management; (vii) governance policies and other documents; (viii) the compensation of directors and employees; (ix) the effectiveness of auditors and other assurance provider functions; and (x) meetings and activities between certain directors and investors.