GC2B: Do you need to be a great lawyer to be a successful GC?

The participants:

Lisa Mayhew, managing partner, Berwin Leighton Paisner and chair of the roundtable

Tinu Adeshile, head of legal, Landmark Information Group

Rolf Althen, group general counsel, Acteon Group

Kelly Carmichael, senior counsel, Countrywide

Michael Coates, head of legal and director, Royal Dutch Shell

Luca Forgione, general counsel, Scorpio Group

Phil Hagan, director, group legal, Phoenix Group

Ausilia Matraxia, in-house solicitor, A2 Dominion Group

James Ormrod, general counsel and company Secretary, Mitie Group

James Ratcliffe, director of recoveries and general counsel, The Art Loss Register

Robin Storey, general counsel and company secretary, Sequa Petroleum

Lesley Wan, corporate real estate counsel, Lloyds Banking Group

Kiaron Whitehead, general counsel, BPI

Catrin Griffiths, editor,
The Lawyer

Lisa Mayhew, BLP: In your current roles, how much do you draw on your technical legal skills to perform your day to day responsibilities?

Michael Coates, Royal Dutch Shell: It’s inevitable that when you reach the role of head of legal you do management, staffing, pay, office seating, all the while remembering that the reason you’re in that job is to advise the board on the law. It’s understood that you need to research things. You probably don’t even know what you know until you reflect on the journey of your career and what you’ve learned over the years.

Rolf Althen, Acteon Group: I agree with Michael’s point. Part of the problem is how you keep abreast with what’s out there. You don’t need to know the intricate detail of a case or its technical aspects, but you need to be alert enough to know when a light should go on. This comes from experience, knowing when to intervene and investigate further.

James Ormrod, Mitie Group: If you work in a large institutional environment, such as Hewlett-Packard where I spent a long time, you do a lot of the management, but many in-house lawyers work in smaller environments and you’re closer to the coalface. In terms of legal expertise it depends what you mean – you can think of it as in-depth knowledge of and experience of rules or regulations, but if you take a step back from that, there are fundamental skills we all share and probably take for granted at an analytical level.

We’re all knowingly or unknowingly experts at identifying a problem, breaking it down into constituent parts, having that addressed by experts  and, crucially in an in-house environment, by stakeholders. So the GC’s role is a combination of operational experience and expertise. It demands legal expertise but it’s to do with fundamental skills rather than specific knowledge, which is the main difference between in-house and private practice.

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James Ratcliffe, The Art Loss Register: You develop an instinctive understanding of what’s important and what’s not, and that’s what lets you make that decision as to when you need to intervene in something. But it raises the challenge as to when that instinct becomes outdated because you aren’t necessarily dealing with the nitty gritty of that issue day in day out.

Robin Storey, Sequa Petroleum: There’s also a thematic understanding. For example, I do small cap oil and gas companies, and when I’m listing a company there might be only 20 people in head office, and it might be worth half a billion. In these cases you do all the listing, managing it through to an eventual sale. That gives you a ­thematic understanding of how to handle a UK merger for the future.

Lisa Mayhew, BLP: Do you find that internal stakeholders within the business come to you asking you to help them understand the intricacies of the law? I see smiles around the table!

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James Ormrod, Mitie Group: Absolutely not! It’s a great way to lose friends. What they want is to know the next steps – what’s my problem, tell me yes or no. You distil what you know for them.

Phil Hagan, Phoenix Group: I suspect that most of us would have alarm bells ringing quite loudly if someone were to ask you that. You’d go, “Really? Tell me why you want to know, because I’m slightly worried that you’ve got something going on.”

Rolf Althen, Acteon Group: One area where it’s quite difficult for lawyers to convince their business partners to pay attention is compliance, where basically we get a new law or new rule every five minutes. Hands up here who’s done any modern slavery work? Our job is to find a director and say, “by the way we need to go into our supply chain to make sure we don’t use slaves in our business”. They’re likely to say, “this is a nuisance, we haven’t got a problem with that”, but then we say, “yes but our clients, a BP, or a Shell, are asking their suppliers to confirm compliance so we have no choice”.

That’s where we have to be proactive and alert people, and read a lot.

Robin Storey, Sequa Petroleum: In our business of upstream oil and gas the Bribery Act has made a huge difference. It’s good practice to have it there anyway. But the difference in small companies is articulating that it all now has to be a process and it has to be written down. People say, “I’ve been in the business for 30 years and I’ve never had to worry about this,” the fact is they’ve never had to worry about it before.

Luca Forgione, Scorpio Group: Yes, you not only have to do the right thing but you have to be seen to do the right thing. Maybe you were doing the right thing in the past but you were not producing evidence to show that.

James Ormrod, Mitie Group: Different stakeholders have different levels of interest in different aspects of compliance.

Rolf Althen, Acteon Group: I think that’s where our role as diplomats and politicians is called upon. Someone asked me to describe my role as a general counsel and I said 50 per cent lawyer, 50 per cent manager and 50 per cent politician.

James Ormrod, Mitie Group: …and 80 per cent whipping boy!

Rolf Althen, Acteon Group: Generally a lot of my job has been to convey messages that get the attention of those who need to listen to it, whether it’s directors or shareholders or both, or investors, the banks – and that is a key skill which is not legally technical.

Tinu Adeshile, Landmark Information Group: When I used to work in television, we always had Ofcom compliance issues to deal. If we didn’t, we’d lose our accreditation. It depends on the company culture as well. I worked at a Japanese company and Japanese companies tend to want to have the compliance in place. That makes it easier, otherwise you’re talking to yourself a lot of the time.

Michael Coates, Royal Dutch Shell: Whereas in private practice you might do a four-page memo, in-house you do that analysis yourself and have ultimate responsibility for that advice. That’s liberating because you have to distil the law and form a view.

Phil Hagan, Phoenix Group: It’s great to have that opportunity to provide your filter or judgement without having to exhaust all the possible alternatives. In private practice you felt you had to go through the motions, saying: “You could do this, or this for the following 17 reasons”.

Kiaron Whitehead, BPI: It’s almost as if the business is the acrobats and we’re the safety net. If we weren’t lawyers we could probably give the same sort of advice and let’s say 5 per cent of advice we actually give might turn out bad – but if that advice was not based on law, the business is without a safety net.

Lisa Mayhew, BLP: To equip yourselves with the knowledge or confidence to deliver your recommendations, how do you go about keeping abreast of legal developments? 

Michael Coates, Royal Dutch Shell: I would never advise on something I know nothing about but you can do the research and distil the advice – often it happens at the board table so you have to be careful what you say. People understand you might need to check.

Luca Forgione, Scorpio Group: One skill you develop is working out of your comfort zone. I’m a shipping, commodities and energy expert and I often find something I don’t know about. We operate in Russia, Venezuela, Colombia, Mauritania – some of those places don’t always have the sense of law that English solicitors have.

Michael Coates, Royal Dutch Shell: An issue that arises in English law would probably arise in France or Germany – there may be a different outcome in the law, but the issue is the same.

James Ormrod, Mitie Group: The general counsel’s role is so broad that you can’t possibly be a technical expert and you’re not expected to be – but you’re expected to be accountable. If you go into an area where you’re not knowledgeable, it’s a very bad idea to pretend you are.

Phil Hagan, Phoenix Group: We’ve talked so far about how we deal with ourselves, but we also need to encourage members of the team to keep up to date on areas they may touch upon but may not be expected to be expert on. That can be more challenging, particularly when someone might say, “That’s not my area, I don’t need to know about it”, or “I’m not an expert so I’m not saying anything”.

Some team members are reticent about being drawn out of their comfort zone. So we need to make sure they are doing the extra research and are going to that extra seminar. That’s a management challenge.

Lesley Wan, Lloyds Banking Group: Bankers are always trying to come up with new products and develop things. So it’s important to engage, ask the right questions and draw out the information that you need so you can take it away.

You need to ask: what are you trying to achieve, what is the time frame? Who’s your audience?
The next step might be to go to your external advisers and say I’ve researched this myself and come up with some ideas and I understand your firm is an expert in this area, can you give me your expertise?”

With a particular external law firm I was involved in, it happened that one of the partners had sat on a committee at the Law Society on the very topic we were talking about, so I was able to extrapolate all the information, prepare a full pack slide and present it to our bankers.

Frankly our team looks good because we’ve now got a proposition, we’ve got it signed off by a big City law firm and now we’re sitting down. What’s more, we’ve guided them in a different direction to what they were originally trying to do, because they hadn’t done that research in the beginning – so having legal in there to advise and guide them is a real skill.

Rolf Althen, Acteon Group: The key thing, Lesley, was that you were in there early to catch the idea before it becomes entrenched. You were able to mould it together with them, and it becomes a more pleasurable experience.

Lesley Wan, Lloyds Banking Group: It’s about building the right relationship with the business – that’s really important.

Tinu Adeshile, Landmark Information Group: My company has an entrepreneurial environment and people come up with new products and new ideas all the time and you’re dealing with very bright individuals. But yes, you can delegate to and work with external counsel on that.

Lisa Mayhew, BLP: How many general counsel are on the board, and is there an advantage to being there? 

Michael Coates, Royal Dutch Shell: There are advantages about being on the board – the biggest one is that you’re treated as a peer with the other directors and if you talk about risk it has weight.

Rolf Althen, Acteon Group: In other countries being on the board carries different risks from being a UK director. I’ve been asked in previous jobs and I’ve said no, but I will be at every board meeting and will voice my opinion and give advice as consigliere and hope I can play my role in that way. But the fiduciary duty as a director versus being general counsel, I have a problem with that.

The not on the board of the company I’m with now, but I am an invitee. And I sit on the executive management team and that’s a better place to be as far as influencing strategy goes, because it’s where the action is.

Robin Storey, Sequa Petroleum: To have the company secretary role as well as head of legal for a small company is critical, because things move so fast you simply can’t advise if you’re not part of the management process.

James Ormrod, Mitie Group: Being company secretary gives you access. There are professional conflicts of interest risks but these are corner cases, and you weigh that against the positive impact of having that platform. That whole mix depends on the composition of the board, the personalities and so on.

Lisa Mayhew, BLP: There’s a lot of double-hatting going on – compliance responsibilities mixed with counsel responsibilities mixed with management responsibilities. So when it comes to privilege, do you consciously think about what hat you’re wearing from that perspective?

Rolf Althen, Acteon Group: Every time, every day. We have a very small team so I see a lot that comes across my table and I say: “Hang on, this can go south, we need to be very careful.”

I’ve spent a lot of time teaching people about document creation – what you shouldn’t write, or if you want to phrase a particular thing you should choose your words wisely, because it’s easy to create something that will come back and bite you.

Michael Coates, Royal Dutch Shell: There’s a difference between European and common law jurisdictions. A conversation that may be privileged under English or US law may not be so under European law or with different authorities.

Luca Forgione, Scorpio Group: If you move in-house in Italy, you need to deregister yourself as a lawyer so it’s tricky – the cover you get in Italy is not the same as you get in the UK.

James Ormrod, Mitie Group: It’s important to be aware of it but important not to rely on it too much. We do tend to assume we have privilege when we don’t.

Kelly Carmichael, Countrywide: Legal privilege would be great but the steps you’d have to go through to preserve it in every instance – unless it’s really important and multimillions of pounds hinge on it, it’s not practical for us to say at every step on every email, don’t forward this, this is privileged and so on. It would take a disproportional amount of time to do that compared to the actual risk.

James Ratcliffe, The Art Loss Register: The choice of language and how you actually record it becomes very important. It’s easier to train people about the language you use.

Robin Storey, Sequa Petroleum: Emails in arbitrations are astonishing, aren’t they?

Rolf Althen, Acteon Group: And when a managing director says to you: “Oh, don’t worry I delete all the emails…”

Lisa Mayhew, BLP: But then you can get too cute for your own good sometimes and tie yourself up in knots.

Kiaron Whitehead, BPI: It’s important to get to know the personalities you’re advising, whether it’s a face-to-face conversation or setting it out in writing.

Lisa Mayhew, BLP: Do you reach for a bit more technical security and understanding when dealing with different jurisdictions?

Michael Coates, Royal Dutch Shell: If the advice really counts and if you get it wrong it would cost the company. That’s when you’d seek local advice, but often a lot of advice is given on the hoof. So you’d say “this is an antitrust issue, is it a problem?” and that steers the conversation rather than chasing down every burrow.

Luca Forgione, Scorpio Group: I had a vessel arrested in Togo once and when that happens the response time is crucial. You have to forget the law for a second, so you come up with a plan that may not be legally sophisticated but it does the job.

Robin Storey, Sequa Petroleum: I recommend litigating in Kazakhstan – it’s a fascinating experience!

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Lisa Mayhew, BLP: We have newsletters, updates, seminars and training programmes. Do you value those? Are they relevant at all in a world where we have so many information sources?

Rolf Althen, Acteon Group: Online can be very lonely. The advantage of having an event like this or a conference with topics that interest you, is that you are able to have discussions and exchange ideas and problems with other people – it’s the whole community. Sitting in front of the screen lacks that exchange.

James Ormrod, Mitie Group: It’s a way of keeping a level of awareness about what’s in the pipeline and what the pressure points are. It’s ­essential. What I really like is the conciseness. You don’t want to know more than what you need to know. There are some firms that are good at striking a balance.

Phil Hagan, Phoenix Group: For those of us who are reasonably central in London you can get to magic circle and silver circle events pretty quickly and some do pretty impressive offerings. I also like BLP’s Busy Lawyers Programme, you put a bit of fun around it.

Luca Forgione, Scorpio Group: That’s something I miss operating in Monaco, the possibility of having those breakfast meetings and so on.

Tinu Adeshile, Landmark Information Group: I work in Reading, so I can’t always come to seminars in London. In my case emailed updates are actually useful.

Michael Coates, Royal Dutch Shell: We require the team to do 18 hours of this type of thing, separate from CPD.

Robin Storey, Sequa Petroleum: Several firms do an annual update on corporate in a longer format – that’s the one thing I might go to in the year.

Lesley Wan, Lloyds Banking Group: Something that is different from webinars and breakfast meetings are live simulation events – they’re fantastic because you get 20 lawyers in a room with a law firm and you’re running a live simulation and facts are thrown at you and you have different teams of lawyers. And partners of the law firm get to spend quality time with in-house counsel.

You’re doing something really relevant to your day job and you sit around and argue the point with the lawyers about your next step. And then there’s dinner afterwards time spent networking and learning different ways to doing things – it requires quite a commitment of time but it’s really valuable.

Replaying the journey

To find out about previous The Lawyer and BLP GC2B roundtables please contact Lisa Mayhew at lisa.mayhew@blplaw.com. To read previous GC2B features, go to TheLawyer.com/GC2B