I have observed and worked with in-house lawyers ever since my very first day as an in-house lawyer on Monday 2 January 1989. Then I was a wet-behind-the-ears new recruit starting out in a now forgotten business that it was my good fortune to join.
My career as an in-house lawyer was carefully parked on the side of my expected career path in the year 2000. That was when I left my second GC role and went walkabout to find a new adventure. I have never been back, but instead for the last 21 years I have worked with in-house teams the length and breadth of the UK, across Europe and from Singapore to Cape Town to Chicago, mentoring, presenting to, and consulting with in-house lawyers from all backgrounds, of all experiences and in teams of all shapes and sizes.
That’s nearly 33 years of close observation and I have decided it is high time that I write down my reflections about the profession I love. I will share more with you about my plans in the coming weeks, but I want it to be freely available and to build over the course of this year and next. I want to share all that I can to let others find the things I hope might help them in their journeys too.
That’s for the future, but for now, for today, I want to reflect some more on the Post Office scandal that hit the UK’s mainstream news over several days last week. For some background, please see Professor Richard Moorhead’s quite brilliant analysis here:
There are grave concerns relating to the decision-making of executives and lawyers. It is possible, of course, that the Post Office lawyers did all that they could and this should not be ruled out in the understandable rush to place blame. Lawyers can also be bullied and feel threatened, and lawyers can feel overwhelmed with pressure.
While I am not looking for people to blame, it is impossible not to see the catastrophic failure of leadership and its crippling impact on innocent families. It seems utterly bewildering that at a time the Post Office was inflicting such pain and suffering on so many people, that other Post Office employees, no doubt kind, thoughtful, competent and empathetic souls, could all be going about their own work oblivious to what was happening. This includes of course the in-house lawyers.
How can this be?
In my opinion, many in-house lawyers work in structures that are bound to fail when they are put under significant pressure. These structures are nearly all self-built by the lawyers themselves, driven by the demands of the moment rather than foresight and strategy. As a result, nearly all carry a small, but inherent and all too predictable risk of collapse.
For the remainder of this blog, I will explain how this happens. In doing so I know I am oversimplifying the analysis; I will therefore write about these things in much greater detail as part of the work I have mentioned above.
There are three ages of an in-house lawyer. It is a sort of progression, although many lawyers stay stuck in one age that either suits them temperamentally, or where the culture they work in demands they know their place. My observation is that each age has the potential to be benign and positive, or to create the circumstances for epic ethical failure. The three ages are:
- Seeking acceptance
- Promoting convenience, and
- Making a difference.
This is the stage for newbies and idealists. We are all here at some point. This is the age where lawyers put relationship pleasing at the heart of their efforts to feed their need to be liked, to be valued, to be noticed and included.
In this age, there will be much talk of lawyers needing to be commercial, of never saying “no” and of going the extra mile. Lawyers will say that service is everything and that they must be outstanding at meeting the requests made of them, whatever the priority it truly deserves.
At one level it is harmless and cheerful, but it is also limited and risks becoming pathologically subservient. At worst it indulges, appeases, excuses and facilitates harmful outcomes. Seeking acceptance has a value, but it is too easily exploited and only really works when everyone else plays nicely. Lawyers should never be so naïve.
Seeking acceptance creates demands that in the end cannot be met, but most in-house lawyers believe that their personal inconvenience is a sure sign that they are truly needed. It is a kind of winning.
In-house lawyers create dependency. Becoming indispensable is just a higher level of seeking acceptance. However, even the most ardent exponents of this approach will, at some point, realise that something has to change. Their winning is now placing increasingly intolerable demands on an exhausted and limited supply of lawyers.
When told they can no longer simply grow their teams by recruiting more lawyers, they will often become evangelical for the importance of technology and better process. Done well this can work incredibly smartly; a place of genuine purpose and efficiency. However, done poorly and the outcome is lawyers stuck in an unrelenting cycle of still having too much work, still having too little resource and now with the additional distraction of trying to build resilient infrastructure. Their eye, very firmly, not on the ball.
Making a difference.
For some lawyers, the need to break away from the grinding bind of too much demand and too little resource, becomes overwhelmingly seductive. They have got a little bored of trying to restructure, reprioritise, refocus and of running efficiency projects that never end. Now they just want to be more strategic.
I am not decrying the need to be strategic because all teams should be. By being strategic they can make their difference. If lawyers get this right, we see the superstars of the profession, lighting the way to guide us all and leaving the world in a better place. The problem is that too many lawyers arrive at this moment escaping from their past inadequacy and have no clue what “being strategic” really means. For them it tends to morph into a flaccid desire to just “be in the room”; and lo and behold, by wanting so much to be in the room, they are back in an instant seeking acceptance.
Each of the three ages is two-sided. Each age offers wonderful days and fulfilling careers where talent can flourish, and a lasting difference is made. It is where my love of this profession comes from. However, each age is also its own subtle and blind-siding trap. Great care is needed to be vigilant and strong. Hubris, complacency and arrogance will find you out.
I will say this until the day I die, but I do not care for your operating model, or your clever tech platform or your excellence awards, if you downplay or fudge the fact that the most important reason to be an in-house lawyer is to know when to say no when everyone else wants to hear yes.
If in-house lawyers walk by on the other side of this fundamental truth, a significant percentage will become susceptible to failure. Within this group a small number will be bound to fail. When you fail, your career, and potentially the lives and livelihoods of others will be ruined.
The blog I wrote last week, with the draft letter from the GC to the board, affirmed this essential role of the legal team:
The blog resulted in an email from someone I know to be a brilliant lawyer. She told me:
“I especially like your letter to the business from legal in light of the post office scandal. I wonder if we can summon up the courage to do it. It seems doubtful.”
Her GC, of course, is not bound to fail; but in my eyes he has become susceptible to failure.
I say again – the most important reason to be an in-house lawyer is to know when to say no when everyone else wants to hear yes.