Category: Features

At Weil, we consider ourselves strategic business partners with our clients – you, the general counsel of large public companies, complex financial institutions and sophisticated private equity firms. In my 35 years practicing and running the firm at Weil, I have seen how tremendously the role of general counsel has evolved and expanded over the past four decades. The legal head of a large organization has always borne the heavy burden of ensuring excellence across their legal departments, management and oversight of all risk mitigation systems, and the development and enforcement of quality corporate governance protocols. But today, we are seeing the fusing of all these responsibilities with the business operations and over-arching corporate strategy. Senior lawyers are expected to be providing business judgement as well as legal judgement.

As a result, I’ve seen the role that we play, as outside counsel to our clients, also shift in that time. As we heard from the in-house lawyers who contributed to this report, there is now an interconnectedness of all business, strategic and legal issues. We carefully analyze legal issues for our clients, but we do not stop there. We supply commercial and business judgement, to help them answer that key question: ‘What should I do here?’ This makes for a dynamic time to be a lawyer, whether you are in-house or outside counsel.

I’ve also felt, more and more in recent years, that the legal leaders in organizations are expected to be responsible and responsive corporate citizens – far beyond the walls of their organization. We have always embraced that at our law firm, but now employees want their leaders to have an active voice on global issues that are impacting their lives – whether in or outside of the workplace. Again, this provides in-house legal teams and corporate management with a real opportunity to engage in a dialogue with their employees and address important cultural and social issues. It can forge and strengthen the bonds of loyalty so vital to an organization’s success.

There will always be new and changing developments to the practice of law and the issues facing in-house teams. What will never change is the need for bright, driven, collegial, diverse and adaptive lawyers to fill these roles. As the world and businesses grow more complex, the in-house leaders, including those profiled in these pages, will have the opportunity to be business as well as legal strategists. It’s exciting times, and I congratulate all of the dynamic and diverse GCs featured in this issue.

Barry Wolf Executive Partner Weil, Gotshal & Manges LLP

There are certain privileges held by those looking to take on a general counsel role in today’s world. Thanks to the information age, even those outside a suitor organization are able to easily discover facts and figures about their prospective company, and can access a wide range of materials to help them prepare for a new position. General counsel and would-be general counsel now have the troves of knowledge gathered by generations past at their fingertips.

Things weren’t always so easy.

‘I knew nothing. It’s kind of funny. I had been an appellate and supreme court litigator, I had been in government and had run a big office – so I had management experience. But I hadn’t spent one hour working for GE, not one hour. I met Jack Welch [former chairman and CEO], he interviewed me for 30 minutes and offered me the job. The company had 340,000 employees; I had not met one,’ recalls Ben Heineman of his appointment as general counsel of GE in 1987.

‘Welch didn’t know what he wanted. He knew that he wanted to reshape the legal function, but he didn’t know exactly what that meant. When he offered me the job, I said, “I don’t know anything about GE, I’m not a business lawyer.” And he said, “Well, you’ll figure it out.” I was truly driving the car and changing the wheels at the same time.’

To the wise professional, the perspectives of those general counsel whose careers stretch back beyond the current state of things offer more than historical fascination: they are a rich source of insight into how the role of the general counsel has transformed over years past, how it will transform in the years to come, and how the general counsel coming into the role today can best ensure their success in advising their businesses.

Wealth of experience

We talked to those battle-tested, long-serving GCs about their experiences making the transition: the war stories from getting established within the business to reflections on what might be done differently if given the chance.

The best heads are better than one

On arriving at GE, Heineman set about surrounding himself with ‘the best’:

‘I knew one really important thing. I knew I had to get great people – I had done that all my life. I hired great people very fast and Welch supported them. The first person I hired was one of the leading tax lawyers in the country. He made a huge difference and was beloved by the business people. I then hired a world-class and very famous litigator; a very famous person to lead environmental safety. What Welch liked was the fact that I was bringing a ton of new talent into the company. I was the first person to actually hire people from the outside on a consistent basis, I basically blew up the legal organization and over the first five or six years, it was transformed. And that was critical to my credibility – it wasn’t me, it was my super-talented partners.’

In contrast, after more than 20 years in-house with DuPont, Tom Sager went into the general counsel role in 2008 with his eyes open – not least with regard to the company’s extensive litigation docket, having spent over a decade as chief litigation counsel. But, like Heineman, he talks of the benefits of leveraging fresh perspectives in order to have a transformative impact. One particular case from the late 1990s and early 2000s springs to his mind as a striking example, not only of leveraging the best talent, but also ensuring that talent is diverse.

‘We were dealing with lead paint litigation. We had a fairly strong team of defendants: we had ARCO [Atlantic Richfield Co], Lead Industries Association, and Sherwin-Williams. These were big players, and there was a mindset that said “We’re going to fight all these cases to the death”. I said to myself, “Well, that’s all well and good, but you’re only going to win so many, and then you’re going to be in more of a hurt because there’ll be some cases in which you’ll lose, and then, as we say in the US, the price of poker goes up,”’ recalls Sager.

‘So we got a team of diverse, talented people – Dennis Archer, who was the president of the ABA, mayor of Detroit, and a world-class guy; Benjamin Hooks, who was a civil rights icon; and several others. We got in a room and I said, “We don’t want to roll over, but how do we go about addressing the problem?” They came up with this idea of creating the Children’s Health Forum, which was designed to do three things: drive education with respect to inner-city families whose children were possibly exposed to the lead paint poisoning, remediation and then medical testing. Dr Hooks, at the age of 78, agreed to chair the Forum and he traveled the country to engage with primarily black inner-city mayors.’

DuPont was eventually dropped from the lawsuit in Rhode Island.

Learning to listen

Hiring talent is only as effective as the partnerships that allow organizations to capitalize on that pool and, like any good partnership, they should flow in all directions around the business. When Mark Ohringer began his first tenure as general counsel at Heller Financial, Inc in 2000, he believes he missed an opportunity to build relationships with those around him.

‘I should have gone on a bit more of a listening tour and gone to the heads of the business. I had already been in the department when I became GC and I probably thought that I knew what everybody wanted. But I should have put myself on their calendar for half an hour and checked that,’ explains Ohringer.

‘It puts a line in the sand: “New sheriff in town, I want to understand what you want as my client, and let’s have a discussion – tell me anything, how can I help you, and how can I be a good colleague?” I think I would have been more formal about going around business people and the people running the corporate functions. Particularly listening and not talking so much.’

Blowing the comfort zone wide open

The general counsel’s office has evolved from a silo to an intersection of cross-departmental collaboration, responsible for leading teams that include an assortment of internal and external specialists. The role has come down from the ivory tower to the corporate thoroughfare, meaning the leap from specialist to generalist is all the more critical. While cultivating a network of experts remains important, the GC must be able to view matters through a broad lens, regardless of background (and comfort zone), as Sager learnt the hard way at DuPont.

‘I turned down a commercial lawyer assignment that didn’t thrill me at the time, and that was probably one of the biggest mistakes I made,’ he says.

‘I did not spend time enough to know how the businesses are challenged and how they meet their profit objectives, and everything that they must deal with. Had I known that and taken that assignment outside my comfort area, it would have made me even an better general counsel.’

He did, however, accept another stretch assignment, which stood him in good stead over the years.

‘After four years of being a labor and employment lawyer, I was asked to be a lobbyist for DuPont in Washington, which was as foreign as it could possibly be. That assignment was painful at first but, over time I began to appreciate the value of being a representative of the corporation, because it exposed me to the issues that were challenging DuPont broadly, how one prepares to advance legislation or defeat it, and how to build coalitions and networks.’

Counseling the counsel

The experienced general counsel we spoke to have put in the years to develop the comprehensive scope and alliance-building skills necessary to succeed at leading the legal organization in top corporations. So what advice can older hands give to those navigating less familiar waters for the first time?

The right counsel for the job

‘The most important question is: does your skillset align with the needs of the corporation? I was a litigator, and we had a lot of serious litigation, so that led to my appointment. If your corporation is in a growth mode, then they’re probably looking for somebody who’s more versed in the core area of M&A deals and cross-border transactions,’ observes Sager.

‘General counsel will always have to put out the fires – that’s a given – and you need to be skilled in that. But increasingly, the general counsel is viewed as a part of a senior leadership team, and with that comes responsibilities – some way beyond knowing how to defend a litigation or handle an investigation or a crisis.’

Whatever skillset or background today’s GCs bring to the table, they will quickly discover that the role has evolved beyond individual expertise into a broad-based, proactive and strategic position. And although there is no fixed blueprint for becoming GC, let alone succeeding in the position, experienced past and present holders of the title agreed that there are a set of qualities that aspiring legal leaders should possess.

Communication skills

General counsel must bridge the gap between the legal and business mindsets, and also overcome any outmoded preconceptions that business colleagues might harbor about the dreaded ‘department of no’.

‘Lawyers tend to talk too much and write too much, and for business you need to be very succinct. Nobody has the same attention span that they used to – they’re used to these little sound bites on their mobile phones, and you can’t hand a business person a 25-page brief,’ explains Mark Ohringer, general counsel at Jones Lang LaSalle since 2003.

Horizon spotting

‘We used to sponsor a NASCAR driver by the name of Jeff Gordon, and my CEO Chad Holliday showed us this picture of Gordon in his car, circling and making a turn in one of these races,’ says Sager.

‘“You have to help us anticipate the curves”, Holliday used to say. They might create an opportunity or risk for the corporation, and you can’t be effective if you’re not thinking along those lines.’

Most of the general counsel we spoke to agreed that GCs need to be particularly attuned to all kinds of change, including societal and political developments that are ostensibly unrelated to business.

‘There are new kinds of risks that never existed before,’ says Ohringer. ‘Cyber risk, social media – none of that existed when I started practicing 25 years ago, and now they’re enormous.’

A keen eye trained on the distant horizon will assist not only in managing and mitigating risk, but in planning for worst-case scenarios. GCs can be useful in bringing together the various siloes within an organization to design future crisis response, and ensure coordination between internal and external specialist resources.

‘A terrorism situation, a natural disaster, all these things keep happening. Are we ready as a company? Because if we’re not, there can be really bad legal risks, and that’s why the lawyers have a ticket to think about it. Those kinds of things didn’t used to happen so much and now they’re pretty much commonplace, so you need to make your response ordinary course of business. Nobody should be surprised when these things happen anymore,’ Ohringer explains.

Strength of character

When times get tough, fault lines often appear around the general counsel if they are not properly negotiating what Ben Heineman has called the ‘partner-guardian tension’.

Much has been written in recent years of the importance of effective partnership between organizations and their lawyers. The office of the general counsel has matured from the in-house approximation of the partner-associate-business ‘client’ model, to a deeper and more strategic enmeshment in the fabric of the business. So far, so value-add. But GCs must have the independence of mind to walk a line.

‘You have to have that partnering relationship with the CEO and the business leaders, but at the end of the day, your real job is being guardian of the company, which requires a certain amount of independence,’ explains Heineman. ‘There’s a certain tension between these two roles: if you are just a nay-sayer – just a guardian, protecting and risk averse – you’ll be excluded from meetings, you won’t be part of the team, and you won’t be able to play a business as well as legal role. But if you’re an inveterate yay-sayer and just do what they tell you to do, you’re going to get indicted.’

These are blunt words from a veteran GC, but necessary ones.

‘I think, sometimes, this idea that the lawyer should be part of the strategy may have actually gone a little too far,’ echoes Ohringer. ‘Big companies have had some terrible things go wrong; and how come the legal function didn’t help? It may have been too protective of the company.’

‘As all this evolves, lawyers have to not get sucked into the business too much. They need to understand it in order to do their jobs, but there’s still a need to maintain some independence. I always said I should not be the last one at the bar at night after business meetings – these are not my friends and I have to keep a little separate, because if they do something wrong, I represent the company, not them.’

We look next to today’s crop of newer recruits, and examine how they are rising to the challenges faced by the modern general counsel – and what advice they give to those currently eying the job.

New entrants into the world of the in-house counsel have a unique vantage point: they are a blank slate, and while they can enjoy the benefit of decades of experience and cascading knowledge of long-serving general counsel, they can also bring fresh perspectives to the table.

The newly-minted general counsel will often straddle the boundary between experience of an already established career and the unfamiliarity of a new one. But despite that, the groundwork for the general counsel role begins early in the legal career, even if they don’t know it at the time.

Amy Sandgrund-Fisher, who became general counsel of The Clinton Foundation in 2017 after nearly 20 years as an employment lawyer, found that her experience working in-house with many different companies served her well in making the leap.

‘To get that exposure, it was key to work at different organizations, with different risk appetites, different business models and different types of leadership. Exposure to a diversity of legal problems and problem-solvers prepares you for a job like this,’ she explains.

‘Given my own experience, my advice to attorneys looking to move into a GC role is to take chances and don’t hesitate to try different organizations and different types of roles, and don’t get stuck. Being at one place for too long can make it hard to have the flexibility and exposure you need to take on a role like general counsel.’

Digging in

Of course, all the preparation in the world can’t replace a thorough and candid conversation with senior leaders and function heads upon arrival at the business. This is done to glean a clear understanding of how they view the role, its parameters, any gaps that need to be filled, and any necessary points of continuation – or divergence – from the predecessor. In particular, such conversations can be just as necessary for internal promotions as for external hires, in order to align the vision of the c-suite with that of the new arrival in terms of scope.

‘People make assumptions and they’re not necessarily true. A lot of times there’s probably not a common understanding of things like that – foundational aspects of the job,’ warns Mark Ohringer, general counsel of Jones Lang LaSalle.

Our newer general counsel all understood that their value to the business is directly proportional to their understanding of the business. If the general counsel wants their team to provide actionable advice, then this must be grounded in acute insight into the issue in the context of the business itself, at the most granular level possible.

Those new to the company, and especially those new to the sector, all reported investing significant time and energy into gaining a thorough understanding of their new business – including scouring annual reports, rounds of meetings and tours of the shop floor.

Throughout this process, our interviewees were quick to advise the importance of asking even the simplest of questions, not only because it adds granularity to the GC’s grasp of the business, but because it could also benefit the organization.

‘Oftentimes, including a fresh perspective causes people to rethink and re-evaluate things, which is never a bad thing,’ explains Hannah Lim-Johnson, general counsel of Kelly Services.

Governance

The next step on the road to orientation in the GC role is adjusting to new obligations relating to governance and the board. Those with a corporate secretarial background have an edge here initially, but for many, being a direct line to the board, with the attendant educational, counseling and fiduciary responsibilities, is a new and absorbing dimension to even a longstanding in-house career.

‘It’s really hard to overestimate how much time and effort goes into board and governance issues. That continues to surprise me, even four years into the role,’ says Tim Murphy, general counsel of Mastercard.

‘Getting the narratives right to the board, not just on my own things, but helping the company do that well overall so that we have effective meetings and get good conversations – boy, it’s time-consuming. You’ve got to make sure you’re resourcing for it, because it can take over your role.’

Learning to function as the board’s lawyer, as opposed to a mere ad-hoc dispensary of advice, requires an ability to both find the right tone for engagement with the board and earn the trust required for developing robust and durable relationships with its members. Those with the benefit of being introduced via a sound succession plan have a leg up. Those without will have to put in significant face-to-face time to build a rapport strong enough to reach their potential.

In addition, finding an equilibrium between acting as a manager of the business – and the juggling act that this entails – with the independence needed for advising the board is a challenge that will be new to most first-time general counsel.

The personal touch

Newcomers looking to acclimatize to the general counsel role will be well-served by a knack for relationship building. Intra-business relationships will be fundamental in maintaining trust within the business and developing a knowledge base from which to operate within the new environment. This, in turn, is the ticket to a full appreciation of the culture at the top echelons, which the general counsel must negotiate.

‘I didn’t realize how complex the landscape could be, and I’m talking about relationships with the senior leadership and the board itself, the significant players who were truly in the inner circle,’ recalls Tom Sager, former general counsel of DuPont.

‘Be sensitive to your landscape. There’s always the political side: who’s in and who’s out in terms of their relationship with the CEO. What is their tenure?’

Solid relationships with the c-suite, and a commensurate understanding of its challenges and priorities, will inform the GC’s ability to add value to the company at the strategic level. But looking around as well as up is a prerequisite for gaining an appreciation of the company at the grassroots level, as discovered by James Zappa in those first months after arriving at CHS from 3M:

‘I spent a tremendous amount of time with my direct colleagues and the board of directors, but I should have done more to get to know the business unit leaders. They are the people who are most important to the operating rhythm of the company and to the risk management practices. Most employees in the company will look to their business unit leaders for guidance relating to culture, appropriate behavior and day-to-day leadership, and had I accelerated my learning and meeting those people, I think I would have known more about the company earlier.’

Developing all types of relationships is essential for achieving that delicate balance between ‘business professional’ and ‘company guardian’ – but just as the role has expanded in recent years, the GC’s sphere of influence has extended further, even to outside the organization.

David Yawman, general counsel of PepsiCo, characterizes the role as achieving mastery of ‘different vectors of influence’.

‘When I look to the north, I see a CEO and a board and the shareholders, and I have to influence them on the things that matter most to them. When I look to the south, I lead multiple functions, and I’ve got to ensure that there’s the right talent and skills and that I can grow the team individually as well as overall. To the west, I see my peers, and whether it’s head of human resources or the chief financial officer, I need to be able to understand their perspectives on things in order to collaborate. To the east, I see a lot of external parties, from government officials, to NGOs, to competitors and industry groups that I also have to engage.

‘In the past, some individuals would be good at one of those vectors and maybe two, maybe three. But now, I don’t think there’s any one of those vectors against which the general counsel can afford to be ineffective.’

Navigating the needs of, and pressures imposed by non-company stakeholders – what Mastercard’s Tim Murphy dubs the ‘external ambassadorship’ component of the GC role – requires a skillset that is even further evolved from the ivory-tower lawyer of yore.

‘If you can give a good speech in a TED Talks style in front of 200 economists in a leading country and come off as pretty compelling, you’re adding value to your firm. The best skill you can ever get anywhere in life is public speaking,’ he explains.

Talent contest

When Ben Heineman started at GE in the late ‘80s, he had 33 direct or dotted-line reports. He fired 30 of them within the first three years.

‘The most important thing that a new GC does is to assess the talent that is in the legal department immediately and determine whether or not they keep those people. Creating your team is one of the first paths, do not wait on personnel,’ he says.

Hired from outside the company with a brief to create change, Heineman was keen to build the legal organization from a blank state. Compare this with the approach taken by Ford’s Bradley Gayton, a company ‘lifer’ with already-established relationships within the company. Gayton took a softer line with the talent around him.

‘Having grown up here, the relationships that I had were now different when I became general counsel. I sat on the operating committee of the office of the general counsel with my peers, all of whom were very talented and any one of them could reasonably have expected that they would be GC,’ says Gayton.

‘So part of this job on day one was re-recruiting my peers, and acknowledging just what incredible lawyers and leaders they are, and reaffirming that all the fantastic work we had done as a leadership team was going to continue.’

No doubt, the incoming general counsel’s approach to talent will be influenced by the condition in which they find their new department. But the GC should curate the department according to the new reality, and not old models, as Eric Dale learned at prominent data company Nielsen, which he came to from 13 years in private practice.

‘I initially analogized my position at Nielsen as me being a partner and the rest of the department being associates. I quickly learned that that was a poor analogy! A better analogy is more along the lines of being a managing partner in a law firm and that there are a lot of other partners as well as associates’.

Team members who are not micromanaged but are empowered, independent decision makers and are fully credited for their contribution, are fundamental to developing what Tom Sager calls ‘collaborative intelligence’ – a willingness to raise issues and reach out to others about problems, rather than cover them up out of fear of criticism. He quotes former US Secretary of State and retired US Army general Colin Powell: ‘The day soldiers stop bringing you their problems is the day you have stopped leading them.’

Thinking diversely

The concept of ‘diversity of thought’ has permeated the corporate landscape, and legal teams, like other business teams, have woken up to the fact that finding the best talent means looking at all talent available; seeking it out if it does not arrive at the door easily.

The new general counsel could do worse than to take a leaf out of Bradley Gayton’s book when he was building out the legal team at Ford. As the company’s first black general counsel, he has considered the topic in much detail.

‘I think about it in terms of diversity of our office, and then I am also thinking about the pipeline to law school. And there, what we’re thinking about is both late-stage pipeline, maybe people already in college, and we’re thinking about early-stage pipeline, so: should we be thinking about helping kids in sixth grade in debate club?’ he says.

‘And then the thing we’re giving a great deal of consideration to in the office is: should we use the “Mansfield Rule” as a way to recruit, which says you should ensure that 30% of the applicant pool you’re going to put through the funnel is diverse, because then, when you pick the best candidate, you stand a good chance of driving diversity. It’s not a quota system – you don’t only pick people from a diverse pool – you just make sure that the applicant pool is significantly diverse. I’d say we’re mid-level stage of considering what does that look like, how would we implement it, and having really good discussions about that.’

General counsel are in a unique position to drive diversity in the wider general profession – ‘the east’ in terms of David Yawman’s vectors of influence. The competition between external law firms gives in-house teams leverage to select for those whose values align with their own. If firms want to win the business, they will have no choice but to adapt.

PepsiCo has devised practical steps to encourage diversity among law firm partners, launching an outside counsel diversity initiative under the leadership of Yawman’s predecessor Tony West [now at Uber].

‘We demand a lot of metrics from outside firms and then, through a weighted formula that we’ve created, we ascribe a diversity index score to each firm [within peer group – Big law, large firm, small-medium firm]. We are disinclined to provide new business to those firms that have a diversity index score below the median in terms of diversity within the US population of the firm, and particularly for those people working on matters for PepsiCo,’ explains Yawman.

‘In 2017, roughly 85% of new matters that we placed with outside firms in the US went to those firms with diversity scores above the median. We’re trying to put our money where our values are in terms of driving the legal profession to be more diverse, rooted not just in providing individuals with opportunities, but believing that there are better legal services on a qualitative basis when you have a more diverse team.’

Back at Ford, meanwhile, Gayton is applying his thoughtful and nuanced approach to promoting diversity among Ford’s external network, that doesn’t rely on a stats-focused system of measuring diversity metrics.

‘You can tell me that you have three women on your team, but what I really want to know is: what are you doing to develop them? Are they on track to be partner? What kind of work do they have? I’d almost rather that instead of five women doing low-level work, you’ve got two, but they are two that you’re really invested in and I can see that they really have good assignments that will build meaningful expertise over time. This is part of the challenge isn’t it?’ he reflects, adding:

‘We’re going to identify a handful of alliance partners and really work to understand this issue with them, so that we can go beyond the list of top-line numbers.’

A vocal proponent of diversity in the law, Tom Sager has a Minority Corporate Counsel Association award named in his honor. According to him, achieving, maintaining and promoting diverse teams, particularly within the wider profession, continues to be a struggle for general counsel, as with other business leaders.

‘This is a slow process and the gains are incremental – in fact, the numbers may keep regressing depending on the state of the economy. So I remind everybody in this space to celebrate the successes: we’ll have some setbacks, but it pays to persevere,’ says Sager.

‘The whole commitment to diversity can change overnight with a change in leadership – in the corporation or in the law firm – so you’ve got to get the culture built in.

‘Create a culture and this is part of your strategic direction, because some people think it’s no big deal, but I’m telling you, those that understand this and drive it are going to be far more successful than competitors that don’t.’

Driving strategy

Once the new general counsel has established a penetrative understanding of the business and assembled a team of their choosing, the more substantial value-add can begin: bolstering the company’s strategic direction, and then helping rather than hindering the progress toward achieving the goals of the business.

‘A lot of times, lawyers are very good at highlighting the risk, and saying that it’s a “big risk” or that it’s a “material risk”, but I think in order for us to really effectively influence, assist and counsel our business clients, we actually have to be willing – and a little bit more evolved in our ability – to put a value on that risk,’ says Yawman.

‘[That means] a business leader can ultimately weigh [the risk] against the value of the resources, time or energy that he or she might have to place in order to mitigate that risk.’

Practically, this can manifest in many areas. A number of our interviewees describe how a sound apprehension of company strategy can help to appropriately color the day-to-day activity of the legal team, and ensure they are furthering strategic goals both now and in the future, while taking care not to stifle potential opportunities.

But in-house teams can add even more value if they view potential legal problems as opportunities to create competitive advantage. At Mastercard, Tim Murphy and his team took the challenge of complying with the recent GDPR data privacy regulation in Europe into an opportunity, by creating an innovative data anonymization venture. At healthcare giant McKesson, GC Lori Schechter’s team formed a cross-company task force to brainstorm ideas to tackle the US opioid crisis, which resulted in a white paper shared with legislators.

But, counsels Murphy: ‘You need to tell your colleagues that [leaning into the company’s strategy] is a priority and you need to get their buy-in and acknowledgement, so when you are successful it doesn’t look like a random walk, it looks like very important strategic work, which it in fact is. In-house lawyers need to be selling their services and their value.’

Another essential tool for demonstrating value in the profit-and-loss-focused corporate world is managing to metrics, and general counsel who have not viewed legal work through this lens would be well-advised to start.

‘For lawyers, it is really hard, and a lot of lawyers resist it. But at the end of the day, if you push hard enough, I think every legal function can find a metrics-based scorecard to measure themselves. That’s really powerful because it speaks the language of business,’ adds Murphy.

Innovation

Much has been written and said about the supposed intransigence of lawyers, and their tendency to fight the tides. But the general counsel we spoke to were all concerned with embracing change and innovation within their departments. Much of the innovation being enacted or contemplated centered around adopting new technology and processes to enhance efficiency, such as contract, knowledge or risk-management systems, many involving artificial intelligence.

But Jones Lang LaSalle GC Mark Ohringer advises less-experienced GCs to avoid rushing into changes without a full consideration, not only of what the legal department could achieve, but of what business leaders really need and want.

‘Do you want a very industrialized and efficient law department? That could mean asking the business to do more self-service, for example with contracts. But maybe they don’t want to do it; that may not be the smartest thing to do if that’s taking them off the street from selling or doing other more high-value-add jobs,’ he explains.

Instead, he says, the GC should gauge the appetite of the business for wholesale transformation before implementing any innovation plans. He warns that while creative thinking could enhance productivity, business colleagues might not be comfortable with entirely new ways of engaging with the legal function, such as offshoring or outsourcing arrangements. Maintaining an interface that looks coherent with a more traditional way of working might be more effective in some circumstances, for example.

‘What innovative things can you do behind the scenes that make it more effective for the legal team to deliver their services, but when a business person calls, a lawyer is still answering the phone? Which I think a lot of business people want and deserve. That’s very different from having some kind of central legal function based in Mumbai and all the bid people are calling and getting different people – which may be fine for some companies and not fine for others, or fine for some parts of the law department and not fine for others,’ he says.

New might not always be better. But this is very different to adopting a head-in-the-sand approach to innovation, he stresses.

‘You need to know how cool you could be – but then check it out first.’

Ohringer’s own legal team, for example, has leveraged the skills of data scientists within the company to mine existing company data for patterns of behavior that could be red flags for fraud, bribery or other ethics violations.

‘It’s exciting to me, and the data guys like it because it’s fun for them. It wasn’t so obvious for them and it’s not really what they got hired for, but they can add a lot of value for the company,’ he explains.

The Jones Lang LaSalle team has also hired a graphic designer to work on presentations and documents, in recognition of the fact that when training documents and other reports look visually appealing, people actually read them: ‘I’m always amazed when law firms come to give presentations. They’ll put up a slide that’s got very tiny print, and is full of words, and somebody’s talking and you don’t know whether to listen to that person or read the slide. It’s a mess.’

In many cases, the general counsel we spoke to were new enough in their post that they had yet to formulate transformative plans for the legal function. But all backed the notion of keeping abreast of technological and societal developments as key to keeping the legal organization agile and poised to add value – something to think about sooner rather than later for a new GC shaping their legal department.

The legal function might not traditionally be associated with the phrase ‘competitive edge’, but many of the general counsel we spoke to are aiming for exactly that. In the here and now, the pressure is on for GCs to be watching competitors, hoping to learn from their successes and mistakes, while also thinking about how to get to the answers to tomorrow’s questions before anyone else.

‘I think of it in three phases – now, near and far. I draw a circle for “now”, I draw a bigger circle around it and I call that “near”, and I draw an even bigger circle around “near” and I call it “far”,’ explains Gayton.

‘I obviously have to spend time in all three areas, but my most significant value can come from thinking about the “far”, because if I can anticipate both where the law is going and where the business is going, we can identify solutions that are out in the far and then try to bend them back to today. If we can reach out to the future in how I’m thinking and bring those solutions back to today, the curve that comes back is my competitive advantage – that’s how we can contribute to beating the competition.’

Developing a nose for the future is especially demanding in today’s world, given the constantly shifting sands of technological capability, societal norms and geopolitical activity (and the subsequent struggle of regulation to keep up). Some sectors might be steering the waves, while others are drowning in them, but all are operating in an environment where little can be taken for granted.

‘The job is harder than it’s been because of those things and I think we need new models and approaches to addressing them – because trying to do it alone isn’t likely to be successful,’ says Tim Murphy, general counsel of Mastercard.

While the challenges are unprecedented, our GCs were full of insights into the future of legal services for both in-house and private practice.

Thinking global

Collaborative efforts, such as building a peer network of general counsel outside the corporation, can provide traction for dealing with the day-to-day. This has always been a common feature of the general counsel’s armory. However, it was common to hear from those interviewed that general counsel increasingly need to think beyond their immediate geographic environment and cultivate a truly global perspective.

‘Not only is the business climate more global, but our regulations around the world are becoming much more collaborative and sharing more, and so are all of our customers. Social media takes an issue that you might think is a local issue, and can make it a global issue pretty quickly,’ says Gayton.

‘You can’t be myopic in terms of solving these issues thinking that they’re simply local – you’ve got to understand the likely global ramifications. Being able to have a global view and understand how to navigate globally and lead a global team and engage with law firms and martial troops together to resolve global issues is critical.’

That means creating and capitalizing on opportunities to experience unfamiliar perspectives and build international relationships, through travel, international deals, setting up international entities or working on international litigation.

‘Being able to understand and value the differences in cultures, and being able to be inclusive in how you work with people, whether they are next to you or whether they’re 5,000 miles away – that’s a skillset; it’s not just your nature,’ adds James Zappa, general counsel of CHS.

At the margins

Like all business leaders, general counsel are no longer strangers to efficiency drives. Creative efforts to position the legal function as a generator of revenue, instead of just a cost center, do not exempt them from needing to demonstrate maximum productivity, on top of adding value. It seems natural to assume that alongside a growing use of systems that track and document workflow, attempts to streamline legal functions will continue well into the future.

‘There will be segmentation. The lower, repetitive work will be commoditized and the margins will be lean,’ says Tom Sager, former general counsel of DuPont.

‘It requires a lot of forethought, a lot of knowledge around process, a lot of thought around what is the lowest appropriate level to delegate this work and leverage the contribution of non-lawyer practitioners who can bring immense value in areas such as compliance, ethics, risk management, governance, procurement, crisis management and diversity.’

The word on everyone’s lips, of course, is ‘automation’, which Sager (and many others) believes will displace some in-house professionals. During his own tenure at DuPont, the bankruptcy team shrank from five members to a single paralegal.

‘It starts with some methodology (and it may be Six Sigma) that maps and processes, to understand the steps, understand where inefficiencies or duplication occur, and put in a system which may be facilitated by technology to ensure that process takes hold,’ he explains.

Ford is already using artificial intelligence for e-discovery, and is considering its application in writing patent applications, as well as in evaluating risk in the company’s contract portfolio. Gayton’s appetite for tech-based applications goes further than most, as he imagines virtual reality tools shortening geographical distances, not only in business meetings, but in courtrooms, widening access to justice. But for now, AI-enabled contract management is within the grasp of many in-house practitioners, as evidenced from our sample of general counsel.

Outside of the realm of technological solutions – although certainly enabled by them to some degree – is the growing range of options for streamlining routine work, which has led many, such as Mastercard, to consider shared services as an option in handling work traditionally handled by the in-house team.

‘Now, at Mastercard, if you do a non-disclosure agreement with us, it’s done by staff in the shared service function – and that shared service function has all sorts of automation and it tracks, in a very rich way, timelines and response rates and so on,’ says Murphy.

The future of legal services

While such initiatives are indicative of the diversifying internal marketplace for legal solutions, the external marketplace for non-traditional solutions is also flourishing, as alternative legal services providers, such as on-demand legal professionals, are taking a foothold and challenging law firms for many types of work.

‘We are seeing a trend for law firms to provide one-stop-shops for professional services – not just legal advice, but also things like financial management, media and political consulting – and clients are increasingly coming to expect that,’ says Tom Johnson, general counsel of the Federal Communications Commission.

‘The reality is that the problems affecting corporations and other organizations are not always neatly pigeon-holed as a legal problem, and that’s becoming increasingly true as the world is more becoming more interconnected, as people are becoming more socially conscious, and as information is much more public on a real-time basis through 24-hour news cycles and social media. Law firms are going to be increasingly called upon to expand their traditional skillset.’

The need for law firms to employ lawyers with multiple specialisms, or even non-lawyers, could impact the professional and ethical norms of the legal practitioner, mirroring the in-house partner-guardian tension highlighted by Ben Heineman.

‘It used to be common ground that attorneys did not see themselves as ordinary business people – they saw themselves as officers of the court with a solemn responsibility towards the judicial system as well as to their clients,’ says Johnson.

‘It’s a good thing that lawyers hold themselves to those high professional expectations, but the model is getting to be tested by some of the new trends towards increasingly global professional services organizations.’

If true, this could mean that in-house lawyers are ahead of their private practice peers in negotiating this tension, having walked a similar line for many years. Some believe that for the in-house community, things might be about to come full circle.

‘I expect that, given the brand reputation issues that companies are running into, there will be a greater emphasis on the role of the GC as that internal watchdog, and how their level of responsibility to the owner or the board or whomever is the controlling entity, informs the things that they need to know,’ explains Hannah Gordon, general counsel of the San Francisco 49ers.

But any distancing from the business would seem to be at odds with the seeming proliferation of non-legal responsibilities – and their attendant risk profiles – being absorbed into the GC role.

Subsequently, how law firms adapt to a changing legal marketplace, drew some novel ideas from the GCs we spoke to.

‘I do wonder if we will move away from the very hierarchical law firm model that exists today to one that’s a bit flatter, with more risk that sophisticated clients have to accept. If you don’t have a typical pyramid where you’re paying for review after review after review of work, that could work just fine for a sophisticated law office like ours with sufficiently large numbers, where what you could use in the moment is another junior lawyer,’ says Gayton.

‘I don’t necessarily need the law firm partner’s review of that lawyer’s work, because I have the equivalent of that here. But the law firms would have to be comfortable with the fact that we’d take that risk.’

Business in society

It was Ben Heineman who coined the phrase ‘business in society issues’ – a concept encapsulating the effects of businesses as corporate citizens: ‘The company can get seriously impaired or seriously improved if it does appropriate actions as a citizen, as well as a business performer’.

As the recent sexual harassment scandals spanning numerous sectors have shown, all organizations must be cognizant of the sudden and incalculable damage that can be wreaked by perceived bad conduct, whether or not that conduct amounts to a substantive legal or compliance violation.

These issues, among others, demonstrate the imperative for future general counsel to act with integrity and a keen sense of their responsibility as an ethical guardian for the company, as an influencer in terms of company culture and, at times, as an external ambassador.

‘We’ve seen how incredibly destructive some of these divisive cultural issues can be if they’re not managed the right way,’ explains Murphy.

However the position and the market might evolve, at the core of the role of the general counsel will continue to be sound and nuanced judgement, at times straying into delicate matters that might be tangential to the usual delivery of legal advice.

Our conversations with those at the top of the corporate legal tree supported the view that whatever technological or efficiency-based innovation is around the corner, there will no substitute for the general counsel to steep themselves in the training, experiences and tools that build that balanced view – and subsequently, retain it.