William is the General Counsel of the global media company, Conde Nast. He has spent most of his career helping creators continue to sustainably make and share content in a globally disrupted and digitally driven world whilst trying to ensure they get paid for doing so. Prior to Conde Nast, William worked as a lawyer for Penguin, Informa and Cambridge University Press. He has also worked in Government Relations as Director of Policy & General Counsel at the UK Publishers Association and as a Director of the Federation of European Publishers in Brussels. He lives in Cambridge, UK, with his wife, Louise, their 4 children and a large pile of magazines.

This is his guest post

How to be a critical friend

The Post Office. So many thoughts. So much injustice. So much sadness. So many implications.

In addition to the anger many of us feel for how the sub postmasters have been treated, I’m also saddened about how Westminster has collectively failed local communities in small towns and rural areas across the UK.

Many are rightly asking questions of the lawyers involved.

But it seems to me that there are learnings from this sorry tale for all in-house counsel.

Where was the one person who should have had the ethical framework, technical legal skill, feeling for justice and, crucially, the trust and access to senior management of the Post Office to be able to distil and interpret facts, communicate those clearly and challenge / influence decision makers about how best to proceed?

Where was their in-house counsel? Where was their critical friend?

In-house counsel – what would you have done in this situation?

What is a critical friend?

Every leader / Board needs a critical friend. Someone who is supportive of them, their organisation and its goals but has the wisdom, judgment, willingness and ability to help (and sometimes challenge) leaders find the best available way to pursue and achieve their goals. To play that role, their in house counsel needs three things

  • trust and job security;
  • access to leaders/Boards; and
  • information.

5 Reasons Why a Critical Friend is…Critical

Achieving this level of trust with colleagues and clients can sometimes feel hard. But here are 5 reasons why it is worth persevering.

#1 A strong media is a key part of a strong justice system.

Storytelling is an important part of our society. Indeed, it was a storyteller that finally brought this issue to the public consciousness.

The ITV drama is yet another reminder of why writing is, and must remain, a profession, not a hobby.

Big Tech have weakened the economics of the writing profession to a point where the funding for news, free speech and storytelling is now critical. As the number of people able to earn a living from writing goes down, so Big Tech profits go up. That they attempt to “pubwash” their actions by claiming to be champions of free speech while quietly silencing so many writers by destroying their livelihoods, makes this injustice all the more upsetting and hard to address.

Because of this, in-house media lawyers need to ensure that the copyright laws which underpin the ability of writers to earn a living are not eroded further by Big Technology companies and their lobbyists or Government.

And this matters for natural justice as well. Free and independent journalism must remain viable so that injustice can be uncovered, stories told and power held to account. Part of that involves in-house media lawyers advising writers as a critical friend on what they shouldn’t do or publish as well as what they should or can so that the integrity of the writing profession and the media is upheld.

But for all that authors and journalists are and can do, they are not a substitute for lawyers and a well functioning justice system.

Lawyers, judges and courts have training, regulation and status in the justice system and constitution for a reason. Indeed, even post Leveson, journalists have spent considerable time campaigning to ensure they are NOT regulated by the government. No doubt there are benefits to society that come from the freedoms they cherish.

But lawyers rightly submit themselves to the higher standards of oversight expected by society of those who guard the systems and processes that keep our society free and strong. For every journalist that says “I’m not a lawyer but…” there needs to be someone who says “I am a lawyer and I can confirm that the following is true and that my word can be trusted by the Courts.”

The court of public opinion matters but not as much as well run courts of law.

For it is only there that truth and justice can finally be found.

#2 The world is moving to a Gig economy except in one crucial area – the law.

The law was the original “gig economy” profession. Hired guns, moving from case to case, dependent on today’s performance for tomorrow’s work.

But according to the Law Society statistics, that has changed with more than 25% of the profession in in-house roles. This huge growth in the in-house legal community is profoundly important for two reasons.

Firstly, as the percentage of lawyers dedicated full time to one client goes up, the percentage available to act for the rest of society at large goes down.

Secondly, some in-house lawyers have reported finding it harder to challenge their employer than a traditional client. For example, many report being asked to be “more commercial” or “more pragmatic”. Others report being criticised for “focusing too much on the legal issues”. If that trend were to continue, the nature of what many in-house lawyers are able to do in practice will diverge from what they are required to do in law. Many in house lawyers worry about how to combine two sets of obligations that can at times feel in conflict. One answer to that is to be a critical friend.

#3 Technology systems and data are increasingly pivotal to the way society works, including the administration of justice.

The digitisation of our economy and society has brought many benefits. But the Post Office scandal also shines a light on the presumption that Technology=Truth. As a result, there are understandable questions being asked about whether that burden of proof should be reversed.

While AI will never be a substitute for wisdom or judgement in the administration of justice, these questions need answering urgently before AI takes hold.

In addition, as the importance of these products and services grows, society should continue to hold to account those who make and profit from them, while monitoring carefully the levels of power and control they hold.

As an in-house legal community, we also need to better understand these tools, how they work and the nature and frequency of human inputs needed for their operation.

Doing so is a necessary precursor to us being a critical friend to our Technology teams and the business leaders who commission and use the systems they buy and oversee.

After all, an AI Tool might be able to summarise (or even draft) a Fujitsu outsourcing agreement.

But it can’t be a critical friend when it comes to advising a Post Office Executive on whether to sign it.

#4 Pro Bono isn’t a substitute for legal aid.

I saw wonderful examples of pro bono work at the 2023 LawWorks pro bono awards. But I was alarmed at how many important cases are reliant upon the efforts of pro bono lawyers for justice to prevail.

Random (or even well organised) acts of kindness are no basis for a sound legal system. Nor are the whims / budgets of a law firm PR department that see the need for some lawyers to take on just cases to put in their annual report and recruitment brochures.

Initiatives such as “The Good Law Project” are laudable, but those funding and taking forward such initiatives will always have limits as to the cases they can support and the ways in which they can support them.

I also know of one legal pro bono charity that charges a fee to participating lawyers, thus making them pay for the privilege of giving up their free time to help people (for free).

Unless or until equitable access to justice becomes a reality, then the need to prevent such injustice occurring in the first place becomes even more important.

In theory, the proximity of in house counsel to their client means that they are ideally placed to prevent harm from occurring. They mustn’t be prevented from preventing harm.

#5 The law and politics are becoming increasingly intertwined.

Am I alone in feeling unsettled by how frequently in recent times politicians have pulled a legal lever to solve a political problem?

It isn’t a problem per se for the Supreme Court to check the power of the executive. If our unwritten constitution requires clarification then so be it. Nor, in these exceptional circumstances, is it necessarily wrong that Parliament is going to use legislation to exonerate the sub postmasters given the scale of injustice.

But I would suggest our politicians need to fix the root causes of much that has gone wrong in public life so that these issues stop occurring so frequently, not rely on their legal system to keep pulling off “diving catches”.

As they do so, the Government Legal Service is there to help, provided the role of in-house lawyers in government is sufficiently supported so they can be a critical friend during the policy making process. There should be no presumption that a challenging legal query raised by a GLS lawyer is indicative of political bias. Politicians need critical friends too.

And sometimes those critical friends will be government lawyers, not paid advisors or party members.

What does a free and strong society look like?

Justice. Fairness. Free speech. The right to live, love and learn in peace. To earn a living. To own property. To enjoy your friends and family and to live in a well organised, functioning and safe community.

The Post Office scandal threatened all of these for many people and communities.

As in-house counsel, we occupy a special place in the administration of justice. We can’t turn back the clock on the harm caused by the Post Office and Fujitsu but we can stop many other similar scandals occurring (indeed I’m sure countless unheralded in-house counsel already have).

For while other lawyers are well placed to solve legal problems after they have occurred, we are the ones that are close enough to anticipate, understand and prevent injustice from occurring in large businesses and governments in the first place. Much as a GP knows the patients in their local community well enough to prevent a serious or chronic illness, so we can keep society (and the business community) fit and healthy.

In order to fulfil this role, we could start by asking ourselves whether we are able to be a critical friend in our role today? And if not, what do we need to change so that we can?

As we do so, we should remember three things:

  • It’s ok that legal advice is sometimes inconvenient.
  • Illegality is never, in the end, a “good commercial solution”.
  • And if I was doing something wrong or behaving in a way that wasn’t fair to others, I would expect a true friend to call me out on that. Even if, in the moment, I didn’t thank them for doing so.

William Bowes