As we tentatively move into a new age of seeing the world as something to be nurtured and not exploited, and as we need to find more certain and comprehensive ways to collaborate rather than just compete, it is time to be the bold architects of our future contribution, not the tenants of our past. As part of this reflection what should be the role of General Counsel?
Now, more than ever, at all the significant intersections between governance, technology, business, politics, sustainability, contracts, human rights and ethicality, there are lawyers. As societal, environmental and humanitarian expectations evolve, I do not think it is contentious to suggest that the purpose of lawyers should be abundantly clear for all to see, to understand and to evaluate.
The most senior employed lawyer on the payroll is the General Counsel. The vast majority of these lawyers undertake their roles for their institutions with great care, expertise and commitment. Many of us who observe them closely find their responsibilities daunting and their determination inspiring. It is a vital role, a pivotal role and a role that carries daily onerous challenges. We should therefore have the highest expectation that the role of General Counsel will be fulfilled with care, skill and courage.
I believe three things encourage and support this expectation:
First, and above all, that the rule of law and the administration of justice must never be comprised by what we do or choose not to do.
Second, that our role is never just as a servant to the expedient needs of a few executives temporarily in charge for now.
Third that in serving the best interests of the organisations we advise, we should self-consciously consider the impact of our actions on others including colleagues, suppliers, customers, the communities in which they trade and the environmental impact our businesses have on our planet.
However, fine words alone are not enough, we need to look at behaviours too. This is where we need to be especially clear because I believe we have allowed the conflation of ideas and behaviours that create an ambiguity and a tension with the purposefulness of the role I have just described.
- Are we gatekeepers or facilitators?
- Are we cheerleaders or critical friends?
- Are we commercial players or governance guardians?
- Are we pushers of envelopes or protectors of established best practice?
- Are we a consigliere to the CEO or our conscience?
- Do we lead opinion on doing the right thing or simply hope that we are all on the same page?
- Do we see our career as illuminated by the brands that employ us, or by the difference we make to the people and communities impacted by our work?
- If we see bad things, are we there to sweep up the mess as discreetly as possible, or to shine a light?
- Are we lawyers first and always, or are we business people with legal skills?
Many General Counsel will feel they can do all of these things, and move seamlessly between them, but my reflection is that these ambiguities are ultimately unhelpful. Where do we put the emphasis? Are we certain we will be on the right side of the line when the cold light of hindsight’s scrutiny falls on our work. To borrow the Warren Buffet quote about the banks, “Only when the tide goes out do you discover who’s been swimming naked.”
My reflection is that if General Counsel want to be on the right side of history, now is the time to be leading the conversation that puts the role at the front and centre of new thinking. Not to accuse or diminish, but to emphatically leave behind the age of foggy ambiguity and move with certainty and determination to an age of transparent ethicality.
We need clarity of purpose and a conversation that frames an accountable contribution. I do not think we need more regulation to do this and we are not all trundling to hell in a hand-cart, but we should be open to small steps that are determined and impactful changes of emphasis. For example:
- This might mean ensuring that the contracts made by our businesses are stripped of overbearing clauses and will instead reflect a desire to be fair, balanced and proportionate with respect to the legitimate interests of the organisations, places and people impacted by our agreements.
- It might mean that we conduct disputes and litigation wholly on the merits of the issues and not tactically to exploit market position or financial power or to deflect reputational harm.
- It might mean that when an employee complains of bullying, discrimination or harassment that we see our role not as the company’s lawyer come what may, but as ensuring the company does the right thing.
- It might mean that we do not hide bad actions under the cover of confidentiality clauses and that we expose wrongdoing.
- It should mean that we are not complicit in strategies of distraction where poor behaviours are hidden from view for the sake of reputational risk management.
- It might mean that we self-certify to our regulator on the renewal of our practicing certificates that we have complied with our code of professional conduct.
- It might mean that our incentives are linked to our accountabilities as lawyers and not to commercial targets driven by sales, growth and market share.
- It might mean taking a leading role in promoting the values of our organisations with our supply chain, our customers and with the communities in which we trade, so that these are embedded in our environmental policies, terms of trading and supply change management.
- It should mean having a positive, active working relationship with all non-executive directors and perhaps a reporting line that is not just to an executive colleague, but additionally and explicitly to the chair of the Audit Committee.
- It should mean a duty to report to the Board as soon as possible any instances of significant regulatory breach.
- It might also mean some employment contract protection for us, so that if things look really bad, we have better options than to resign in professional silence or take a period of sick leave to lick our mental health wounds.
- It might mean only using law firms that help us fulfil these responsibilities and who understand that these are duties we have been employed to discharge.
- It should mean we are not nervous when a regulator or a judge asks for our papers, because legal professional privilege is a gift that should be used to serve justice and not to salve our employer’s embarrassment.
I may be wrong, I often am, but we are undoubtedly moving to an age of seeing the world as something to be nurtured and not exploited. A world where collaboration will become increasingly important and where doing the right thing will always be more important than expediency. A time therefore to reflect and to be the bold architects of our future contribution, not the tenants of our past.
Take care. Paul xx