It was just another ordinary day. I was probably three weeks into my first General Counsel role. The calls and messages of support and congratulations had passed. This call was from a director looking to create some fancy new entity to buy another company.
Me: “Can I come back to you; I need a little more time to think about it?”
Director: “No, we don’t have time; I need your answer now.”
Me: “I don’t have all the information I need, and I would prefer to think it through. I won’t sit on it, I promise, I just think we might find a better way.”
Director: “Of course, there may be a better way Paul, but you’re sounding like a lawyer again. There are only two ways. Do we go ahead now, Yes or No?”
(BTW, the word “again” in that last comment still runkles my equilibrium).
This conversation, and versions of it, happened most weeks. As a newly promoted General Counsel I was suddenly in the middle of established, but unfamiliar ways and my daily terror was not having time to think.
The combination of hard-wired executive behaviours and myriad unseen informal networks where information flowed all around me, but was largely unseen by me, made giving an opinion feel more like playing hopscotch in a minefield. The corporate mindset was strong, but hid in plain sight. My struggle was how to take a grip of my role and not feel that I was either whitewashing half-built walls or delaying the best idea ever while I pondered the shade of grey opinion that suited the moment best.
I still worry about some of the things I did decades ago. None of it off-the-scale TV-worthy drama, just the everyday tug-of-war between my conscience and pragmatism. For example, was I strong enough with an over-zealous policy on debt collection? Or did I do enough to call out one executive’s bullying mindset? With hindsight, I should and could have done more. It still niggles way.
The privilege of middle-age hand-wringing however is deeply unattractive, so let me get to the point.
Every day, in every company someone, somewhere does something dumb, inappropriate or troubling. Sometimes lawyers will have a chance to influence these things and, if we can, we should try to pause and hopefully stop any nonsense. Sometimes however we will turn a blind eye, we may even acquiesce. In the gathering rush, in the relentless noise, and in the narrow windows that we look through, we cannot be everywhere, see everything or have the energy to intervene each and every time. It isn’t ideal and we know hindsight will not be our friend, but very (very) rarely does it have anything to do with lacking moral courage or failed values.
Stuff happens EVERY day. We all know it happens EVERY day. I used to find myself standing in places that made me feel intensely vulnerable or irritated; or which seemed totally chaotic, or where it was too late to change course. That however was the gig. I now have twenty years of mentoring experience and I know it is still the gig for huge numbers of lawyers, all over the world.
So what is to be done about it?
In a way nothing is to be done about it. The power-plays, the nudging boundaries and the flatulent ideas that are given their wind because others are cheer-leading the next big thing, are the realities of corporate life and they are as certain as the chief executive’s bonus. However, because we know these things are certain, we should not let anyone go into a General Counsel role who will be surprised or unprepared. We need to normalise the fact that there will be ethical pressure. This does not mean we need to treat in-house legal departments like a crime scene, but nor does it mean we should shrug our shoulders, look the other way, and busy ourselves with marking up another routine contract.
I have three suggestions:
First, we should put the role of the General Counsel on the risk register. This is not because the General Counsel is a risk, but because if the business puts her under the drip, drip, drip of ethical pressure, then at some point the business is at risk. I know she can resign if it all gets too much, or if she is professionally compromised, but surely we have the imagination to de-escalate concerns well ahead of such a moment?
Second, as a matter of course, any General Counsel leaving any company, in any circumstances, should be interviewed in private by the Chair and the Non-Executive Directors. Her views on risk, resources, ethical pressure, relationships and on the challenges facing her successor should be transparent and clear to all in the boardroom.
Third, the General Counsel should prepare an annual report for the Audit Committee on how she and the Legal Team are resourced to meet the needs of the organisation they serve, and how their structures and priorities are aligned to the needs of the business.
If I were a GC today, I would welcome these suggestions. They would make me feel less exposed and better supported. If you have read this however, and think it is unnecessary because you are strong, experienced and your company behaves well; may I please ask you to pause and to consider if your talent and your good fortune are things that we can all rely upon.
Please take care.