The hidden burden of the general counsel role

In another life I once held positions as general counsel in two major companies and so watching the News International phone hacking story play out in the press and on television I cannot help having a thought for Tom Crone and wondering what he must be going through now and what it was like for him when he was at N.I.

Paul Gilbert
Paul Gilbert

I am not going to write about Mr Crone now; it would not be fair and I have no view on the rights or wrongs of the situations he might have faced; but it does raise a concern that I have had for some time and one that I would like to write about.

Approximately every couple of weeks or so I get a call from a general counsel who would like to chat something through; the call will start with a few superficial comments about how we might have met once before a couple of year ago, or how the call was prompted by an article (or something) …but then we will get to the point of the call and it is rarely a comfortable listen.

Over the last five or six years I have heard most things…

My chief executive bullies me;

The marketing director doesn’t follow advice;

I am certain we are breaking the law in x or y manner;

We are not reporting on something the regulator wants to see.

…And very many more examples like these.

I do not want to pretend that in-house lawyers are grappling with illegality or unethical practices as part of the every-day routine; but I am certain that many general counsel occasionally feel exposed and in need of some support.

One of the first such calls I had was about seven years ago and concerned a company that had gone into administration. The sole in-house lawyer had been working on a property matter which had failed to complete when his business literally ran out of cash. The law firm acting for the landlord had sent him a Friday pm email which just said:

“Your email of last week confirmed your company would be in funds and ready to complete. This amounts to an undertaking for which you are personally and professionally responsible.”

The poor guy told me this while crying his eyes out.

In the end the Landlord did not pursue the undertaking and the lawyer involved “only” lost his job and nothing else. It was however my first real-life encounter with the hidden burden of the general counsel role.

I am very fortunate to work with some really able in-house lawyers who brilliantly manage not just the legal risk of their businesses, but who have genuinely established themselves as respected trusted advisors to their employers. However I also know that many very able in-house lawyers find themselves locked into structures that do not easily facilitate access to the CEO or board, where their remit is limited to operational priorities and where many decisions are taken without a thought of running it past them…

Another call I took last year was from a general counsel based in Europe whose business was under investigation for fraud. A senior employee told him not to worry so much cs there would be an “elegant solution” involving unauthorised payments. The general Counsel subsequently resigned.

I have long held the view that companies taking on the privilege of employing qualified lawyers should fully appreciate the extent of their lawyers’ professional duties AND that in-house lawyers should fully embrace their role as officers of the court and as exemplars of a strict ethical code.

We talk long and hard about lawyers partnering with business, of being commercially focussed facilitators and of being proactive, but we must do this in a context which will sometimes mean difficult conversations and sometimes very difficult decisions. In the end relationship management is not about pleasing people, but about doing the right things.

My view is that business should welcome this from the board level down, but we must also help businesses and lawyers make this work well. To be a general counsel is potentially one of the most intellectually rewarding and important positions to achieve in any company. It may also be a profoundly lonely and isolating role.

I will leave you with three thoughts:

First, every general counsel should have someone they respect and trust and who they can talk to when the going gets particularly tough. Experienced general counsel out there, please put yourself forward for mentoring roles and relationship partners in law firms – I am talking to you here too – step up to the plate please

Second, general counsel – when was the last time you read the SRA guidance on code of conduct? You must know this stuff and how to build internal and external support structures around you.

Finally, just take care; it can be tough out there.

Paul Gilbert is Chief Executive of LBC Wise Counsel the UK based specialist management and skills training consultancy for lawyers.