This is a hypothetical story.
It is about a company, its Chief Executive and the General Counsel. It is not about right or wrong, compliance or non-compliance; but it is about judgement and whether there is a possibility that we may sometimes make our integrity a hostage to our working environment.
The company concerned is not a “bad apple”. It does not have the highest profile and there is nothing very remarkable about where it is, what it does, or how it does it. It is just an ordinary, moderately successful company.
It is also the start of an average week and the General Counsel is being asked by her Chief Executive to ensure that their latest acquisition gets over the line by the end of the year. In his words,
“Nothing should matter more to you than getting this deal done, absolutely nothing”.
The General Counsel hears the message loud and clear, but calmly explains that it may be difficult to hit the year-end deadline if the other side continue to be so tricky to work with and persist in failing to fully disclose the information we need.
The Chief Executive however, unmoved, tells her to “Find a way”.
Later the same day, the General Counsel speaks to her relationship partner at the law firm leading on the deal. The partner tells her they will do all they can, but that there are commercial risks in pushing too hard to conclude things prematurely. Some contracts might not be enforceable if the clients of the business being acquired have not been given due notice of the sale of the business. This in turn might give rise to a regulatory risk if we then try to enforce contracts knowing notice was not given.
The General Counsel patiently listens, but then asks her relationship partner to “Find a way”.
The next morning one of the in-house lawyers in the General Counsel’s team has sent her an email. The email asks for some guidance on a modest contract which she felt was a really rubbish deal for the business, but which was otherwise perfectly lawful. The General Counsel replies a little snappily to her junior colleague…
“We are not here to stop the business doing dumb things, make a note and just find a way.”
Later in the week a different lawyer in the team speaks to the General Counsel.
A contract is being discussed where the income projections are absolutely astonishing. It would be the best deal done in a very long time, but the lawyer is concerned about the link with a large payment that is being requested for another smaller contract with an associate entity that is clearly not value for money.
The General Counsel listens, but she is more preoccupied with the pressure she is under from her Chief Executive to complete her deal. She looks distracted when says to her junior colleague, “For goodness sake, we’re meant to find solutions, please just find a way”.
That evening the General Counsel appears at a conference in front of other in-house counsel to make a presentation about working as a business partner. She talks eloquently and passionately about being integrated, embedded, driven, high performing and passionately commercial. The title of her presentation is “Find a way”.
The next morning, there are some enthusiastic “likes” and comments on Linked-In about her presentation. One said, “You are an inspiration – if only we had more lawyers like you showing us the way”.
Later that day the Chief Executive calls the General Counsel. “I am going to be frank with you, we need this deal done as soon as possible, I am relying on you. Don’t let me down. Find a way.”
A few moments later, her relationship partner calls “We have a problem… the other side have revealed something that we consider must be disclosed to the regulator. The other side however say that it falls under an exemption and does not have to be revealed.”
“Are you sure you are right?” asks the General Counsel.
“We cannot advise you that non-disclosure is a safe choice” confirms the relationship partner.
“But are you sure you are 100% right?” demands the General Counsel.
“We cannot say 100%, but we do not advise you to go ahead” The relationship partner repeats, but then offers helpfully, “You can of course make the decision to go ahead now you know the risk.”
“Ok, thank you. As it is my job is to find a way, we will go ahead” says the General Counsel wearily.
The following week, Monday morning, the Chief Executive storms into the General Counsel’s office to interrupt a meeting she is having with her team.
“Look”, he begins, trying to keep his temper, “The feeling we have on the exec floor is that you guys don’t really get what we are trying to do. This last weekend I have had two more messages pointing out how indifferent and obstructive you are…”
He pauses, to read from an email…
“When one of you, who clearly knows nothing about business, thinks you can write to our head of sales that: It is not the Legal team’s job to stop the business doing dumb things. Then it is you who are being dumb.”
“Worse still however” he growls, now really quite angry, “I have also heard that the best contract we have ever agreed is currently being delayed because one of you has gone weak at the knees about an inconsequential side deal”.
He then looks at the General Counsel and says “Who the fuck do you lot think you are? This is a business that is here to do deals. I need to do deals. You are either on the bus with me or you are on the pavement”.
The Chief Executive then leaves and there is a terrible silence for a few seconds.
The General Counsel then speaks, as calmly as she can, “The Chief Executive is under a lot of pressure, but this is what it is like if you want to be a success in this business. If you want to be here, if you want the big salary and if you want the big bonus, we do what he says. WE. FIND. A. WAY”.
Two months later the General Counsel is at the completion party for her big deal. The Chief Executive has the microphone and is eulogising about his Legal Team.
“They always find a way” he says, “This is the best bunch of lawyers I have ever worked with. While others constantly throw up obstacles and challenges, banging on about doing the right thing, and finding imaginative ways to stop deals, this lawyer…” He points enthusiastically at his General Counsel, “…is the best, she always finds a way”.
Take care. Paul