In my recent report on a crisis of well-being for in-house lawyers (see: http://www.lbcwisecounsel.com/downloads/LBC-Well-Being-Report-web.pdf) I am scathing of the efforts some General Counsel have made to look after the mental health of a great many in-house lawyers. In this article I won’t repeat those concerns, but instead I will identify the root causes of the problems I have found and some simple steps to rectify them.
The challenges many in-house teams face are challenges prevalent in every walk of life; I am not special pleading for in-house lawyers or asking for greater sympathy. I am only pointing out what I see in my work, as my work is predominantly with in-house teams those teams are inevitably my focus.
The problems have their root in a fundamental identity crisis. This is not an existential issue; it is quite simply the answer to this question: “What is the point of having a lawyer on the payroll?”
The question is rarely answered directly and is often not answered at all. The problems then flow thick and fast. I believe the following questions and my slightly blunt suggested answers encapsulate the issues arising:
Why the business thinks it has lawyers?
Most people in the business (including many executive leaders) will have very little sense of the need for lawyers other than to “paper the deal” or as an expedient (cheap) way to manage background legal risk. Beyond seeing the lawyers as a low cost, convenient means to expedite transactions that would otherwise be slowed by more expensive external lawyers, there is hardly any recognition of the work the lawyers do.
Why the lawyers think they are there?
In-house teams understand that there is a cost/convenience dynamic to their role, but also believe that the closer they are to decision-making the more they will shape a more efficient and risk aware business. The problem they have is that the business rarely wants more than cost and convenience. Anything else is of uncertain value, unsupported by evidence and is perceived to play more to the vanity of the lawyers.
What the business would like from the lawyers?
This is really simple. The business wants an “on-demand” service. It does not want anything that is integrated; it just wants the answer in the most timely and convenient way possible with a minimum level of disruption and engagement.
What the lawyers would like from the business?
The lawyers are far more needy in this regard. For them there is little or no emotional or intellectual value in being used as a glorified call-centre resource. It is essential for the lawyers that they are involved as early as possible as often as possible. Their justification for this is that they are then better informed and can shape the commercial imperatives in a more risk sensitive way. This desire however is usually asserted rather than demonstrated.
What the business needs from the lawyers?
Increasingly the compelling need of the business is for less and less intervention by lawyers, but to have better training, better policies and better processes. The intervention of lawyers (however empathetic) on a matter by matter basis is bound to slow down decision-making.
What the lawyers need from the business?
The lawyers need time. They need time to engage, to be briefed, to reflect and to advise. It is so far at odds with what the business needs that it is bound to set up inadvertent conflicts and an increasingly pressured environment, especially when the business is under increasing competitive pressures.
If I am right however, my assessment is seemingly at odds with the perception of the market that sees a year on year increase in the number of in-house lawyers. Furthermore if I am right why are so many in-house lawyers so highly regarded?
My perhaps harsh conclusion for why there are so many in-house lawyers is that law firms are still far too expensive and are perceived to be slow and inefficient. Go to most law firms and everything can feel bespoke, when every instinct in the business is to buy expediency. Against this backdrop, an in-house lawyer in the eyes of the business is at least cheaper, present and potentially more biddable.
As for why so many in-house lawyers are highly regarded, the answer is more complex, but I think is still easy to understand. In-house lawyers are frankly brilliant at digging people out of holes. Whatever the business wants from its lawyers it is nevertheless employing well-trained creative problem solvers with a fabulous sense of duty and a great work ethic.
When the business drops the ball, the in-house lawyer will often pull off a blinding diving catch. The problem for the in-house lawyer however is that when the immediate and heartfelt gratitude of the business subsides (usually the next day) the business reverts to type and simply wants the same low-key intervention it has always wanted.
These factors set-up essentially destructive behaviours which have an inevitable downward spiral.
The poor behaviours of the business:
There is little or no investment in the legal team, because the legal team show no appetite or expertise in process design. The odd “diving catch” is appreciated, but in between heroic fielding the low level criticism is easier than addressing the shortfall of expertise needed to design and implement better processes. Invariably the consequences of mistakes by the business are not realised (because of the “diving catches”) this masks the need for the business to adapt and change. Poor process is entrenched, poor behaviours are tolerated. An unspoken reliance on the lawyers to dig them out of trouble therefore permeates and complacency sets in.
The poor behaviours of the lawyers:
The legal team is a team in name only. In reality it is individual contribution that motivates the majority of lawyers. As a result essentially self-serving individual internal networks are set-up to validate their individual contribution. This validation is usually received after the lawyer has helped in a crisis. While the lawyer may grumble to colleagues about the ineptitude of the business, too often they do not address the tough issues of why there was a crisis in the first place. This is because it risks undermining relationships and the source of their validation. As a result lawyers are left frustrated by the volume of low risk work (which they have failed to address through training, policy and process) and then work ridiculous hours to overcome the inevitable, but validating crises.
So far so bad, but this is then significantly and critically exposed further by clichéd and lazy leadership for example in the mantra that we must do “more with less”. Leadership by sound-bite ignores underlying failings and heaps cliché onto inefficiency.
The mindset of the in the in-house legal team is to undervalue process, however to do more for less needs training, policy and process to be priorities. It is a solution in-house teams are ill-equipped to deliver. As a result there is insufficient expertise or even strategic insight to develop process/policy/training solutions.
Even worse than this, in-house teams are sceptical (I believe borne of their lack of insight and confidence) that external suppliers have the solution either. The in-house teams are stuck in a cycle that does not admit their weakness and therefore over asserts their strengths. The only way teams can do more for less is to work longer and to continue to pull-off the diving catches that have previously validated their roles.
In-house legal teams are suffocating on volumes of work they are not designed to handle, with a role that the business does not value enough and without the skills or the confidence to find solutions to protect them and their business.
It is inevitable that teams start to break down. In my view, for many, workloads are intolerable. This combined with a lack of insight, expertise, strategy and confidence creates a leadership vacuum which condemns the team to an inevitable decline.
It is frankly no wonder that stress is endemic and for some the stress has become too much.
The solutions are not easy, but they are in reach. My fear is that General Counsel will not admit their failings and so will not seek the solutions they need. My guidance therefore may be as unwelcome as it will be ignored:
This article is deliberately stark and I accept there is far more nuance and complexity in every team; but I hope the limitations of a word-counted article do not disguise the genuine crisis of well-being faced by many in-house lawyers. A crisis we must all take seriously, not least because it is the unintended consequence of our own failure to address weaknesses we have know about for a very long time.
Paul Gilbert