About 20 years ago I wrote an article for the International In-house Counsel Journal about the direction and approach that in-house counsel should take in order to gain C-suite visibility.
I said that UK and European in-house counsel were seen more as suit-wearing wordsmiths, working behind closed doors, rather than part of the business. By contrast, US in-house counsel adopted casual attire, embedded themselves in an open space close to the top executives and were not only seen but also heard.
I argued that to get C-suite attention UK in-house counsel should leave their fishbowl, walk around the office to find (for example) the head of sales and ask to be part of their team. Also, get involved in pipeline meetings, participate in sales kick-off meetings and master customer relationship management systems. As soon as there is a whiff of a potential deal, even before the NDA stage, follow the sales journey and, when the deal is closed, celebrate that success with the team. This behaviour will prevent that feeling of being an afterthought that many in-house counsels experience. Given time, an invitation to the leadership team meeting will be forthcoming.
Since I wrote that article, I have seen many others advocating a similar approach, using buzzwords such as ‘business enabler’ and ‘trusted adviser’. I have even seen a small cottage industry spring up (courtesy of former GCs) offering advisory services to incumbent GCs on how to contribute to the business.
I am happy that there has been a massive shift in perception of in-house counsel. However, considering recent high-profile events, we need to re-examine our relationship with the business.
I am not going to backpedal on my synopsis. I agree that we have moved on from ‘wordsmiths’ to ‘business enablers’, but the more we become embedded in the business the riskier our behaviour becomes. I have seen too many cases where the desire to be part of the business has either crossed the line of legal professional conduct or blurred it to such an extent that the gap between the surface and subtext on the issue of a business enabler is riddled with disparity.
The Solicitors Regulation Authority last year published long-awaited guidance for employers on understanding in-house solicitors’ professional obligations. I was part of the in-house virtual group that contributed to it. The summary of this report concluded that GCs and in-house legal teams play a key role in helping organisations to behave legally, fairly and ethically by:
- Supporting good corporate governance;
- Improving accountability;
- Managing risk;
- Supporting robust evidence-based and lawful decision-making; and
- Supporting and enhancing a strong ethical culture within the business.
Key to the above is understanding who your client is.
According to the guidance: ‘For many in-house solicitors their client will be their employer. However, we recognise the variety and complexity of organisations and structures in which in-house solicitors operate, and that your client may vary from one matter to another. For example, if you work for an organisation with a complex structure, you may be asked to advise other companies within the group.’
And: ‘There are occasions where commercial interests will not be aligned with regulatory interests or the public interest. This means that an in-house solicitor will, on occasion, need to inform you that they have a concern that something improper or unethical may be taking place within the organisation.
‘In doing so, solicitors can support organisations to take lawful and ethical actions and help to prevent corporate scandals and collapses.
‘This is a valuable function of the solicitor’s role. In-house solicitors should be empowered and supported to raise concerns.’
I have always tried to keep the ‘officer of the company’ principle at the forefront of my mind when trying to reconcile the interests of my colleagues with my role. I have tried not to overstep that mark.
I have adopted the customer-support approach to being a friend of the business by:
- Identifying my client, their needs and preferences;
- Educating them to approach me as a service;
- Trying to learn their pain points and put myself in their shoes;
- Working on communication; and
- When the task is completed, asking for feedback.
The SRA guidelines are very useful for businesses. I urge in-house counsel to read them, pass them on to employers and even try to make them part of employment contracts. However, the guidelines are no panacea for the in-house profession. I am sure that they will continue to evolve, especially with the advancement of artificial intelligence and the changes that it will bring to our profession. However, the guidelines did not define: (a) the qualification of the GC; (b) best reporting line for the in-house function; and (c) requirements for continuing professional development.
I can only hope that these fundamental points will soon be more clearly addressed.
Dan Rhodes is senior director of legal and DPO at digital engagement business Granicus, London
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