How to: be a non-executive director

‘A lawyer buys a bottle of lemonade. It has a snail inside. The lawyer’s first thought is “is the manufacturer liable?” not “what has gone wrong with the supply chain?”.’

This long-lived anecdote, informed by the famous case of Donoghue v Stevenson, has been used to justify the absence of lawyers from UK board positions for aeons.

Nevertheless, back in the 1980s City solicitors were relatively commonplace on the boards of large corporates. But as boards professionalised, and concerns over conflicts of interest between general counsel and company secretary roles began to emerge, lawyers began to disappear. Today, unlike in the US and Germany, non-executive directors (NEDs) with legal backgrounds remain a relatively rare sight in the FTSE 100.

Most commercial NED roles are never advertised, says ex-Slaughter and May partner Elizabeth Holden. Along with a team that includes former Allen & Overy senior partner Guy Beringer, Holden runs Bckr.com, a consultancy that helps City law firm and senior in-house lawyers find NED jobs.

People aim too high. Because you’ve been very successful in your career so far, you expect to succeed again, but for some, you’re going to have to start more humbly

Elizabeth Holden, Bckr.com

‘There’s a fine art to finding the right candidate and those in the headhunter world tell me that advertising is not the right way to do it. They go very much by word of mouth and recommendation,’ she tells the Gazette. Where NED roles are advertised, competition is exceptionally fierce.

After networking her way on to the board of FTSE 250-listed Great Portland Estates despite having little experience of the property world, Holden was headhunted for HML Holdings, a small residential management company. Seeking a third position, she applied for three directorships of housing associations on the same day. Only one, Clarion Housing Group, interviewed her – though she was offered the job. ‘People say it’s hard to get your first job,’ she says. ‘Well, it’s not easy to get your second and third either.’

Although Holden’s clients at Slaughter and May had been huge – FTSE 100 names – she believes she has been more helpful as a NED to smaller businesses. ‘Early on in their development, companies don’t have the resources to access advice from Allen & Overy or Slaughter and May, so my experience of dealing with companies higher up the food chain can be useful.’

City lawyers tend to be dismissive of these types of job initially, she notes: ‘People aim too high. Because you’ve been very successful in your career so far, you expect to succeed again, but for some, you’re going to have to be prepared to start more humbly.’

Lawyers spend a lot of time being measured against the size of their last deal, but outside the City context the parameters are different. As Becky Mackarel, consultant in the legal and professional services practice at executive recruitment firm Odgers Interim, points out, the major corporates may already feel they are well supplied with legal advice.

It may be better to aim away from very ‘corporate’ environments to those where stakeholder management, risk and governance expertise, regulatory insight and so on would be viewed as real strengths

Becky Mackarel, Odgers

‘Our clients generally have a general counsel acting in an advisory capacity and a capable law firm on the books too,’ she says.

Businesses will be more interested in hearing about consultative experience – how an applicant has guided a business through an IPO, helped a start-up grow into an established enterprise or steered a client through a challenging period of retrenchment – than in the types of achievement that would impress your fellow lawyers, Mackarel adds.

‘Lawyers need to reflect how they have acted as a boardroom adviser through thick and thin – not as “just” a deal doer or case manager.’

She suggests targeting industries and sectors that play to solicitors’ strengths in regulation and working in partnerships: ‘It may be better to aim away from very “corporate” environments to those where stakeholder management, risk and governance expertise, regulatory insight and so on would be viewed as real strengths.’

Being familiar with the themes and buzzwords likely to crop up at interview will also help. ‘Can you confidently answer a question or advocate a position on diversity and inclusion, transformation and innovation, or sustainability?’

Ironically, Chris Spencer-Phillips, managing director of specialist chair and non-exec search firm First Flight, says an inadequate appreciation of the benefits of diversity is part of the reason some companies will not consider lawyers.

Becoming the trustee of a charity is a good start. Once you have an unpaid role it’s easier to get a paid one

Chris Spencer-Phillips, First Flight

‘We talk to clients all the time, trying to open their eyes about diversity,’ he says. ‘There are some pretty entrenched views.’ Lawyers have much to offer, he believes, but there are ‘a heck of a lot of people wanting these jobs and limited opportunities’.

Like Mackarel, he recommends solicitors maximise their chances by developing a ‘skills-based rather than roles-based’ CV, with a heavy emphasis on competence outside the legal sphere. For those who are light on experience, he suggests taking on unpaid roles.

‘Becoming the trustee of a charity is a good start,’ he says. ‘Once you have an unpaid role it’s easier to get a paid one.’

Trusteeships of charities or not-for-profit organisations can be a way for specialised desk-bound lawyers to reconnect with the wider world and work in an area they have a passion for, such as sport, the arts or a particular charitable cause. These jobs, just as much as paid NED roles, provide experience of being the client rather than the adviser, and are a route to skills and a network.

Spencer-Phillips is a NED for ShareSoc, a voluntary organisation that represents the interests of private investors in the UK. In July he recommended Paul de Gruchy, a former head of legal at BNP Paribas bank, join the Sharesoc board.

‘A lot of stuff we do revolves around company law and directors’ responsibilities, and we didn’t have anyone else on the board with Paul’s expertise,’ Spencer-Phillips explains. Gruchy is also a NED for FTSE 250 company GCP Infrastructure Investments, a fund focused primarily on investments in UK infrastructure debt. Gruchy sees the new role as complementing his position with GCP.

‘It’s hard for NEDs to speak to individual investors – this is a way of keeping up to date with concerns.’ For any NED, Spencer-Phillips advises, it’s important to get out of the ‘corporate bubble’.

‘The more you understand about the business, the more customer feedback you get, the better. What you hear from management is often a gilded version of the truth.’

But for Spencer-Phillips the key issue is the character of the people who run the business. ‘Are they dependable, honest, trustworthy?’ It might be tempting to take on anything that is offered, he says. ‘But when you’re a director, if anything goes wrong the buck stops with you. It’s not like a legal job, where if you fall out with a client the relationship usually ends. You could end up having to deal with angry investors or spending years sorting out someone else’s mistakes.’

Simon Rendell, a consultant at Fieldfisher LLP who has held up to 10 NED roles simultaneously, recommends lawyers interested in a directorship take a few months getting to know the business before joining its board.

‘Go in with your eyes open,’ he says. ‘There are serious potential liabilities attached to being a director.’

After spending eight months as interim legal director of Vodafone while on secondment from Osborne Clarke in 2005, he developed a taste for business. Focusing on smaller tech companies, he found the opposite problem from that outlined by Mackarel and Holden – he was almost too much in demand, but for the wrong reasons.

He learned to be discerning the hard way. ‘I hadn’t done my due diligence,’ he says, recalling a time when he was asked to steer a company he had just joined through distinctly choppy waters. ‘I wasn’t with them very long. These days, if somebody seems desperately keen to have a lawyer on the board I ask myself why.’

Solicitor NEDs should bear in mind that they are not on the board to give legal advice, he adds. ‘Some people just wanted a free lawyer,’ he recalls. ‘I did end up giving free legal advice but that’s not what being a NED is about – you’re not the general counsel. You’re there to challenge and support the CEO and the board.’

Neither are you a replica CEO, he adds. Full of enthusiasm, Rendell admits he became far too involved in the operational side on some occasions during his NED career: ‘It’s very easy to get dragged into the day-to-day goings-on.’ Also, perhaps because at the time he was investing ‘rather crazily’ in various small businesses, he was expected to stump up cash. ‘Everyone thinks lawyers are rich… we do OK but we don’t walk around with sackloads of money. And we’re not too keen on joining a company just to bail it out of some financial crisis.’

NED roles can require a large time commitment. While on paper a director’s presence is only required at the monthly board meeting, ‘the reality for a NED is that you’re always at the end of a phone’, says Rendell.

Mark Spragg, a consultant litigator at Keystone Law, joined Medway NHS Foundation Trust in 2017, in his first NED position.

Being a lawyer I’m used to being a loner, the butt of people’s jokes. I was surprised how welcoming they were and open to new ideas and also to questions about things

Mark Spragg, Medway NHS Foundation Trust

‘I wasn’t expecting the volume of paperwork,’ he says. ‘We can easily get 400 to 500 pages to read before a board meeting, which is quite daunting.’ He also was not expecting the camaraderie of the board. ‘Being a lawyer I’m used to being a loner, the butt of people’s jokes,’ he says. ‘I was surprised how welcoming they were and open to new ideas and also to questions about things.’ Staff confounded his expectations they would be embarrassed or evasive when questioned about their spending. ‘They seem to welcome it. You can ask anyone there what they’re paid and they’ll tell you to the penny.’

He is paid £15,000 for working around one day a week. Because he’s a self-employed consultant he gets to keep the money. Lawyers who take on NED roles while part of a partnership may be expected to hand over their remuneration to the firm.

Adrian Possener, a partner with Norwich firm Birketts, sat on the board of his client, poultry giant Bernard Matthews, until recently. The money he earned in the role went to Birketts and he sought the partnership’s approval before taking the job on.

‘You have to make sure your firm is OK with you spending a lot of time on this, possibly taking away from the day job,’ he says. ‘And do not underestimate the time it takes. You need to spend a lot of time understanding the business; it’s hard work.’ He recalls being presented with ‘hundreds of pages on the stats of rearing turkeys’.

His second tip for new NEDs is to understand why you have been appointed. ‘If you’re there to keep an eye on corporate governance it’s one thing, if your job is to arbitrate between conflicting views it’s another. Understand what you’re there to do.’ Be wary of controversial issues being decided outside the board, in order to bypass you, he adds.

If being a NED does not appeal or it proves impossible to find a suitable position, do not despair – there is an alternative, Mackarel says. More lawyers are now seeking interim or consultancy jobs as an alternative career, she explains: ‘It’s a different path that enables lawyers to enter into a well-paid advisory role, at the same time as getting back to the “nitty gritty” of the law that is often lost the more senior a lawyer becomes.’

Melanie Newman is a freelance journalist