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?’
Private Practice Perspective: More than just a lawyer
David Lender is co-chair of Weil’s global litigation department and a member of the firm’s management committee. He has more than 20 years of experience trying and litigating complex international commercial disputes in state and federal courts around the country, as well as in arbitration proceedings. In this Private Practice Perspective, Lender extols the virtues of balancing effective lawyering with business judgement when it comes to successful in-house practitioners, while providing his views on how they can best incorporate outside counsel within their departments.
Any general counsel of a large global business knows that being a great lawyer and manager of your in-house team is not enough in today’s marketplace. As many of the GCs profiled for this feature point out, top in-house lawyers are expected to make business decisions. They are part of the key strategic executive teams and decision makers in their organizations.
That makes it an incredibly dynamic and exciting time to be a GC. The general counsel I work with all have a specific and detailed understanding of their industries, business operations, marketplace forces and competitive factors. Constant absorption and recall of this information is critical to their ability to fulfill their expected roles, both in developing and executing corporate strategy.
As outside counsel, our team at Weil partners with clients to delve deeply into these business issues. Our roles have expanded with our clients, and we clearly need to match their level of sophistication on industry and business matters. No longer is being a strong advocate enough. Over the past several years, I have needed to become an expert on topics that typically require advanced degrees in engineering or business – not law. I’ve had to understand the mechanics and technology behind wind turbines for an important patent trial, the wholesale grocery market for a large antitrust trial, and the syndicated real estate loan business for another multibillion-dollar dispute. It’s a host of different challenges. As with GCs, we as outside counsel can only understand what is at stake if we understand the client’s business, the value of IP, and the cost of losing exclusivity over a patent, among countless other considerations.
Part and parcel with knowing the business and the stakes is moving lawyering beyond risk analysis. Both in-house and outside counsel will always need to provide excellent substantive legal analysis and advice. Now, in addition, we – our GC clients and our firm as outside counsel – need to use that analysis to help recommend business decisions. Not only ‘this is the fact pattern and these are the areas where we have exposure’ but also ‘even with the indemnification in place, the reputational and collateral risks associated with continued litigation warrant resolving this matter now.’
Gone are the days of corporate executives merely looping in legal for the greenlight at the end of a project. There has been a beneficial fusion of the legal and business teams. And while we still have to be the analytical voice that looks most critically at risk and the legal questions that ultimately need to be resolved, we are also now expected to state our point of view with regard to corporate strategy. For all these profiled GCs and anyone new to the in-house role, that hopefully makes for deeper relationships with your outside counsel and the practice of law even more rewarding.
David Lender Co-Chair of Global Litigation Weil, Gotshal & Manges LLP
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.