I thoroughly enjoyed reading Bradley Wendel's article on the Valukas Report into General Motors (linked below). The issue around the failure to deal appropriately with a fatal fault in certain GM cars has become one of the prime examples of the ethical minefield that exists for in-house lawyers.
I know these issue are of concern to many in-house and in particular how to reconcile the role of advisor and advocate. Sometimes, I think we should tag certain situations as regulatory "hot spots" where there is a problem and a bit more thought needs to be given as to how make sure that the problem is managed. This is clearly a current hot spot which needs fixing. I have a funny feeling that in 5 years time we will be able to say that this issue does not arise because we now do x,y and z.
My other hot spot at the moment is the lawyer's duty to the court but that may need to wait for another post.
The practical upshot of the report seems to be that in-house lawyers must make sure not only to refer evidence of a problem to the right person, but also must follow up to make sure action has been taken. More interesting theoretical questions, which deserve careful exploration, are whether lawyers have subtly conflated the expectations and duties of two roles – litigation advocate and corporate counsel. The actions of many of the lawyers fired by G.M. can be explained by the advocate’s mindset. Client counseling is different, and the firing of these lawyers shows that some corporate clients expect something other than “zealous advocacy” from their lawyers.