What is the purpose of a General Counsel?
At the risk of saying something that sounds unhelpfully like “General Counsel means General Counsel” I have spent a lot of time over very many years considering how people in this role should define their purpose and articulate their contribution.
I am aware that short articles like this can appear flippant and superficial, however the question of purpose is of increasing significance and I would like to say something about it, even if it is only an introduction to an answer, not the answer itself.
Extraordinarily, I think, there are no minimum qualification standards for the role of General Counsel; there are no experiential requirements, no specific regulatory oversight and even if we put the words “General Counsel” into the search function of the Solicitors Regulation Authority website there is almost nothing revealed that will illuminate understanding.
And yet we all have a view of what a General Counsel is and does. At its most anodyne perhaps it is something like this – the most senior lawyer in an organisation, employed by that organisation to manage legal work on behalf of the organisation; except that a General Counsel does not have to have practised law, does not have to be employed on a permanent contract and might not do or manage much (or any) legal work either. It seems to me very odd that such an important role, that is written about so much and is discussed endlessly in legal conferences around the world, is so lacking in boundaries.
Perhaps the same can be said for HR or IT or Sales too, but when the legal profession itself is obviously highly regulated, when much of the work done by lawyers is regulated and where the courts will sanction lawyers who fail to uphold professional and ethical standards, it is strange that we have allowed the role of General Counsel to be both highly prized and at the same time so easily appropriated by anyone who wants it. If we cannot even guard the title what chance do we have to guard the standards expected of the title holder?
With this as the starting point, any short article that sets out to define the purpose and contribution of the role of General Counsel will fail and I am not going to try. However I will share five reflections on the competency attributes for the role which I tried to live by when I held the position and which I now mentor General Counsel to reflect upon as well.
These five areas I consider broadly indicate competency for the role whether that role is in one of our largest institutions with hundreds of lawyers on the payroll or a family run provincial business employing a single lawyer. My point is not to say that these five areas are all that matter; my point is that knowing there is such marked variation in the size and scope of the role of General Counsel, to identify commonality of purpose rather than difference.
- A General Counsel with direct (or indirect) responsibility for managing other in-house lawyers has a duty of care to those other lawyers to ensure they work in an environment that respects the rule of law; that they have the tools and infrastructure to work to the standards expected and that at all times their professional regulatory and ethical requirements will not be compromised.
- A General Counsel must agree (and keep under review) with their employer the broad boundaries of their role and the remit of the function. In effect, the General Counsel will describe what is in scope and what is not. Once agreed, the General Counsel will develop and manage the resources (people and infrastructure) to fulfil the agreed scope of work and will be responsible for maintaining the required level of resources qualitatively and quantitatively.
- A General Counsel must develop the measures and narrative that are specifically aligned to their purpose and which will evidence the fact that the agreed scope of their work has been fulfilled proportionately, expertly and compliantly. Generic benchmark metrics will rarely suffice given that every employer has a unique risk profile and unique strategic/operational objectives AND has made a specific, significant, often long term, investment in resources for the General Counsel. The return on that investment therefore must be visible, significant and specific as well.
- A General Counsel must describe clearly and simply for their employer how their role is informed by their professional regulatory and ethical requirements. The General Counsel must be competent to adhere to the professional rules of conduct applicable to all the jurisdictions in which they or their lawyer colleagues are regulated and where they undertake or oversee regulated legal work.
- A General Counsel must be able to describe the boundaries between their purpose and the purposes of related risk management functions such as Audit, Compliance, Secretariat and Operational Risk, so that their employer’s governance structures they help create, manage and operate within are transparent and accountable.
These five areas are not the whole story and each point deserves to be explored in significant detail; but I do believe that literally every General Counsel and everyone who aspires to be General Counsel must be convincing on all five areas to be a credible holder of the title.