Why “COVID-19 CEOs” should act on Paul Gilbert’s blog of yesterday, today

Yesterday, Paul Gilbert, CEO LBCWisecounsel, UK’s doyen of commentary and advice to and on in-house lawyers wrote an important blog which, I suspect will have been read by many lawyers but not so many “COVID-19 CEOs” – that is CEOs waking up this morning faced with the task of leading their organisations through an unprecedented global pandemic. 

Paul’s blog concerned a conversation he had last Friday “with a lawyer who told him such a gruelling story that I have not thought of anything else since.”

The lawyer spoke of “his loneliness when first fighting for what was right, but then resigning from a company in which he had discovered systemic fraud.”

So, another day another story of a in-house lawyer brutally forced out by “the business”. So what? Everyone knows this occurrence is commonplace, nay, “business as usual”. 

The “so what” for CEOs is Paul Gilbert’s analysis of the story:

“I will be writing to him this weekend to offer all the support I can. He is a lawyer of exceptional courage. A hero. He played his part flawlessly, made his contribution and he was not found wanting, but he has lost his job and feels alone. The company that employed him may write a different story and probably will. It will be a kind of history too, but not the truth. It is also possible that the lawyer’s story may never be written. His story may not inform a wider world. His story may be lost in time, but it is the truth and it will live with me forever.”

This reflection and the reaction to it on social media yesterday is noteworthy on three levels:

• first that the pain this lawyer – and his family – has suffered will have been awake-at-night and off the scale and is commonplace
• second the grim acknowledgement and acceptance that “his story may be lost in time”
• and third the reaction on social media: hugely sympathetic to the lawyer but resigned to the reality of their plight. They’re probably right about that.

So, CEOs, this story may well be unfolding in your organisation this week. Indeed you may well be a CEO about to “shaft” a hapless lawyer. 

If you are, then don’t do it, if only from a perspective of self-preservation. 

It’s as mad as cutting the brake cable in your own car. And to remove a lawyer of honour during a pandemic is the organisational equivalent of taking off your mask on the Underground and snogging the nearest random passenger. 

You need your “hang-on-a-minute” lawyers, now more than ever. 

But if, as I suspect, you are amongst the majority of CEOs who haven’t a clue what all the fuss is about and are blissfully unaware that lawyers in-house and out, businesses and regulators have slept-walked for the last 30 years, and particularly since the 2008 Global Financial Crash, through a small but growing clamour for regulatory change in the context in which in-house lawyers operate, then listen up: you are sitting on a time bomb. Why?

The day will come when you will be lying awake at night trembling in fear, like this lawyer was, as you deal with a catastrophic “risk event” in your business, on your watch most likely accelerated by the pressures of pandemic and filled with deep regret that you didn’t create an independent environment in which your in-house lawyers could thrive and do their jobs. It will be too late.

Paul Gilbert gives you clear guidance on this:

“The frame we are given as lawyers by our ethical code is an extraordinary gift that empowers influence. It requires that I must act in a way that upholds the constitutional principle of the rule of law, and the proper administration of justice. I must act in a way that upholds public trust and confidence in the solicitors’ profession and in the legal services I provide. That I will act with independence, with honesty, with integrity, in a way that encourages equality, diversity and inclusion, and always in the best interests of each client.”

You can read his blog here: https://www.lbcwisecounsel.com/resources/articles/article/who-tells-your-story/#.XxVM3xNKhhE

But don’t just read it. Act on it, today.

Tick, tock.

Ciarán Fenton

What can CEOs learn from Sir Keir Starmer’s first 100 days, and vice versa?

Sir Keir Starmer recently completed his first hundred days as Leader of the Opposition in the UK’s Parliament. Commentators have assessed these according to their political bias.

But none disagree on his chief achievement: his “forensic” approach to “calling out” the government on its behaviour.

CEOs can learn much from his approach. Keir Starmer is a barrister and, as Nigel Pascoe QC explained in BarriserBlog (2013), there are four rules in cross-examining a witness:

“Firstly, put your…case as shortly, clearly and concisely as possible and then leave it…you should try to keep control of the witness whom you are cross-examining. By that, I mean that as the questioner, you should be in the driving seat and by the precision of your questions, keep the witness confined to your chosen territory…the second golden rule, expressed in the truism that the art of cross-examination is not the art of examining crossly…The third rule, perhaps underpinning all the others, is that you must prepare your cross-examination meticulously. You need to think, so far as you can anticipate it, of the worst answer that the witness might give and how you are going to follow up their answer…The fourth rule is probably the best known. Never ask a question, it is said, to which you do not know the answer already. Now I would qualify that rule…Never ask a question unless you have a very good idea of what the answer is likely to be. In other words, there are times when you may feel that you can take a calculated risk…Beyond those four rules, there is one indefinable matter which is very difficult to explain and which you will only appreciate after you have been cross-examining for a while – something in the air that you detect and can use. Sometimes you will sense a line of cross-examination that you had not planned at all. And pursuing it carefully, suddenly the atmosphere changes in court…”

https://barristerblogger.com/advocacy-tips/the-art-of-cross-examination-by-nigel-pascoe-qc/

CEOs will achieve more productive outcomes if they follow these rules, at least directionally, when in “cross-examining mode” at board meetings, 1-1s and at the end of internal or external presentations and pitches.

Some barristers take delight in “shredding” witnesses as some CEOs do their direct reports, suppliers and staff. This approach may lead to winning in court but rarely leads to a long term win in organisations. 

While Sir Keir Starmer has deployed these rules to productive effect over his first 100 days he could learn some tricks from those CEOs who are effective and emotionally intelligent. 

In the unlikely event of him asking me for my advice for his next 100 days, I would suggest three things:

• Make your top people look good. 
  • The job of a leader is to create an environment in which the people they lead can thrive. The Leader of the Opposition leads their MPs, and especially their front bench, no one else. While everyone is obsessed with how Sir Keir might “lead the country” if he became Prime Minister, they must know that even prime ministers don’t lead the country. They too are paid to lead their MPs and especially their Cabinet. The mistake prime ministers and leaders of the opposition make is that they don’t spend enough time promoting their top team and listening to their backbenchers. Mrs Thatcher lost power because of that error. Most PMs do. The best CEOs avoid that trap.
• Help us understand “Starmerism”
  • As yet it’s not clear what Sir Keir cares deeply about i.e. his purpose. He must fix this soon, or he risks becoming a “one-trick-pony”. People will soon tire of the word “forensic” and realise that he should not be praised for just doing his job: calling out the PM. They need more. What’s “the more?” Sir Keir? Tell us. CEOs have an “-ism” like politicians evidenced by the change in culture in organisations when CEOs with “strong” personalities are replaced by others with different personalities. Clever CEOs figure out their purpose and live it.
• Please all of your stakeholders, not some
  • Sir Keir’s stakeholders are society, his MPs and voters. CEOs stakeholders are society, their people and shareholders. Each must balance these. Neither task is easy. But failure to do so leads to failure. 

Finally, CEOs currently share one other factor with Sir Keir: every CEO has recently completed their first 100 days as a “cum-COVID-19 CEO”. None could avoid it.

The pandemic is creating new challenges for leaders, not least a significant shift in stakeholder expectations. A reframed shared purpose, an appropriate strategy to achieve it and nothing short of a leadership relaunch are likely to work.

The problem for CEOs and Sir Keir is that these steps are painful. The good news is that the pain is worth it, for all.

Ciarán Fenton

Learn from Lincoln in a crisis: don’t send that email

During lockdown, I started reading – or more accurately listening on Scribd on my run – to David Herbert Donald’s biography of Abraham Lincoln: Lincoln.

In Chapter 16, he describes Lincoln’s fury at General Meade’s failure to prevent General Lee’s escape into Virginia.

Frustration fuelled the President’s anger.

Modern CEOs and leaders will recognise these deeper feelings if they take time to pause, stay in the present moment mindfully, and to acknowledge that anger is a much shallower feeling than the deeper unheard inner screams of frustration.

Lincoln had much to scream about: after so many lost battles, the Union’s surprising triumphs at Gettysburg and Vicksburg in July 1863 led him to believe that they could end the war if only General Meade were to “complete his work”. That’s the modern equivalent of JFDI.

However, General Meade didn’t “deliver”. Lee’s army escaped across the Potomac at Williamsport, Maryland into Virginia. There was a Cabinet meeting that day. And were that a crisis board meeting in today’s terms it would be said that the atmosphere was tense, to put it mildly.

According to Doris Kearns Goodwin’s description of that meeting in Team of Rivals – one of several excellent books on the President – Lincoln’s face clearly revealed that he was “disturbed [and] disconcerted”. That’s 1860’s code for: he was massively pissed off.

“If I had gone up there, I could have whipped him myself”, he said. How many times do we hear CEOs exclaim: “Do I have to do it myself?”

Moreover, Lincoln was a President who understood the importance of clarity of purpose and how it drives strategy. He lamented, therefore that since the Union’s purpose was to defeat Lee it followed that chasing him across the river was not the right strategy.

After that Cabinet meeting, he wrote the equivalent of a stinking email to General Meade, described by Goodwin:

“While expressing his profound gratitude for “the magnificent success” at Gettysburg, he acknowledged that he was “distressed immeasurably” by “the magnitude of the misfortune involved in Lee’s escape. He was within your easy grasp, and to have closed upon him would, in connection with other late successes, have ended the war.”

But he never sent the letter because, as Goodwin writes, “Lincoln held back, as he often did, when he was upset or angry, waiting for his emotions to settle”.

That was a good decision for he later realised that since Genreral Meade had been in command for only four days before The Battle of Gettysburg and had experienced enormous losses there, he was exhausted and in a state of great “mental anxiety”.

Lincoln came to appreciate with the benefit of hindsight that he had asked too much of Meade. Had he sent the letter, the hero of Gettysburg would have been unfairly traduced.

So, emulate Lincoln in a crisis: don’t send that email.

Ciarán Fenton

CEOs: are you the biggest problem in managing this crisis?

“Leaders must recognise people’s grief and assist them in finding meaning,” writes David Kessler in the July-August 2020 issue of Harvard Business Review in an article titled “Helping Your Team Heal”.

By grief, he means “the loss of control, the radical change in how we were living, the anticipatory grief we felt as we imagined future job losses and possibly the death of loved ones”. He goes on to explain how leaders can use the five stages of grief, plus a sixth – meaning – to “take care of their workers”.

In the same HBR issue Kevin Sneader, the global managing partner at McKinsey, talks about choosing “candour over charisma”; Chuck Robbins, CEO at Cisco says that “…The culture of organisations, and their people, and how leaders show up during the moment – all of that will define who’s going to be successful in the future”.

Peter Scoblic, Principal, Event Horizon Strategies writes that “…at the very moment when the present least resembles the past, it makes little sense to look back in time for clues about the future”.

These insights are all helpful, especially Scoblic’s emphasis on “scenario planning…to anticipate possible futures while still operating in the present…to build a dynamic link between planning and operations”.

But I fear that the “emerging from the crisis” industry will result in leaders repeating the errors made during the 2008 Global Financial Crash after which they pathologised “their people” and introduced a raft of downwards focused “reforms” to “fix them” without pausing first to look at themselves in the “leadership mirror”.

The result, according to many surveys, was that little changed in terms of behaviour, especially in the financial services sector. It appears that everyone, except taxpayers and the lowest-paid workers, got away with it.

Not this time. This crisis is not the same as the Crash, which was caused by unchecked conduct. This crisis was caused by a virus which has changed the nature of the body politic.

So, as the CEO you can decide to focus entirely downwards – no one will stop you because you are the boss.

Or you can give yourself a year – yes, a full 12 months – of personal purpose, strategy and behaviour reflection, reframing and relaunch.

A year because you will need at least that amount of time to reflect, to take feedback in real-time to reframe your leadership and to relaunch yourself as a credible “cum-COVID19” leader with the humility, nous and emotional intelligence to make the tough calls and to manage relationships in a manner which will not send your organisation into an uncontrollable tailspin at worst or lead to missed opportunities at best.

I propose three steps:

Step 1: Review your personal purpose

• How has the pandemic changed your personal purpose? 
• If not, how can it not?
• Are you somehow immune from the psychological impact of the pandemic because you are the boss?

Step 2: Reframe your personal strategy

• Having decided on a new personal purpose, how will you achieve it?
• What fresh approach will you use?
• What leadership strategy got you to pre-COVID-19 and how can you change that strategy now, because you must?

Step 3: Relaunch your personal behaviour

• How will you heighten your empathy, because your “people” need it?
• How will you deepen your self-awareness, because you risk making irreparable mistakes if you don’t?
• How will you negotiate your needs productively because people won’t give you the discretionary effort you desperately need if you “drive change” rather than lead it?

I have developed a one-year programme to assist CEOs, leaders and NEDs in avoiding being “the naked emperors” in their organisations, to prevent unforced errors and to emerge from the crisis feeling more fulfilled, reputationally enhanced and whole.

Please contact me at cfenton@ciaranfenton.com for further information.

Ciarán Fenton

GCs: relaunch, don’t cut, your law department cum-COVID-19

Everyone is talking about post-COVID. This is wishful thinking. There will be no post-COVID. Ever. Vaccine or no vaccine. As one client put it: it will be forever “cum-COVID”, not post. We will live with this pandemic and its impact for the foreseeable future.

As after World War II, nothing will be the same again. Only worse. At least during that war the foe was in plain sight and the pubs were open.

COVID-19 has changed everything. All the assumptions in your organisation’s target operating model are now up for questioning.

• How, will your customers’ needs have changed? For they surely will.
• How therefore will your strategic resources required to meet those changing needs, in turn, need to change, especially your people? And how will these have changed, irrespective of changes in your customers’ needs?
• How, therefore, will you alter your strategic processes to apply your resources to your customers’ new demands?

As if these questions were not enough, the fundamentals of capitalism, already under scrutiny pre-COVID-19 via the ESG and other movements, will come under accelerated pressure as the societal consequences of the size of state bail-outs of businesses in furlough and other schemes become clear.

One consequence is that your organisation will come under accelerated pressure from society – which includes you, the people who work for your organisation, who buy from it, who sell to it, who sue it and are sued by it – to prioritise the environment, society and governance issues before profit.

The society Genie is not going back into the business bottle. COVID-19 is the final nail in Milton Friedman’s coffin. And if you doubt this ask yourself why the Black People Matter campaign took off so instantly, so virally, and so viscerally, given that Mr Floyd was not the first victim of police brutality and mobile phones have been around for some time?

One part of the answer is, as an Observer editorial pointed out, that “…The disproportionate impact of the virus on black people, in terms of death and infection rates, has unforgettably dramatised the corrosive inequality at the heart of American society.”

So, when this phoney war against the virus is over – by phoney I mean when the furlough money, cash balances and state intervention monies are all gone – we will have the mother of all depressions with unprecedented levels of unemployment – and in those circumstances, society will not tolerate extreme Friedmanesque behaviour by any organisation. And it won’t be polite about it. And society includes you and the people in your organisation.

So, it’s against this dystopian background that you are leading the legal function in your organisation. You are the CEO of Legal whether you have a team or whether you are a sole GC or Head of Legal and whether you like it or not.

You may be tempted to react to your organisation’s inevitable call for cuts by faithfully taking an axe to your legal budget, doing even more for even less and performing the “diving catch” more frequently and more masochistically than before.

Don’t do it. You, your organisation and society will regret it. Don’t cut. Instead, relaunch your law department using these seven steps and remembering that your purpose is to enable better decisions using excellent legal counsel and process. You are now mission-critical to your organisation’s cum-COVID-19 survival.

• Step 1: help your organisation relaunch it’s “PSB” – its purpose, strategy and behaviour plan
• Step 2: decide, don’t ask, what ten things the business needs in terms of legal counsel and process to relaunch itself
• Step 3: set up a Legal Operating Board which includes “non-lawyer” experts in finance, IT and internal communications to run Legal as a break-even business
• Step 4: sell to your Board the purpose of Legal as an enabler of better decision-making for the good of society and “the business” in the light of COVID-19; be ready to walk away if they don’t buy it; you’d be unwise to stay in those circumstances, and don’t bluff
• Step 5: invest in relationships with Law firms to help you negotiate the gap between you and the C-Suite; if you say there’s no gap then you are part of the problem
• Step 6: negotiate a business plan, using zero-budgeting, with “the business” which meets its needs and its responsibilities to society while honouring Legal’s purpose
• Step 7: acknowledge that you the GC are the CEO of Legal, whose job is to deliver the ten things for ten dollars and not ten for seven.

I have set these steps out in more detail in my ebook InHouse TOM – a new target operating model for the law department, law firm & C-Suite relationship which you can download at https://www.ciaranfenton.com/downloads-tools.

Also you should read Section 4.12 of the recently published Mayson Report if you want to get ahead of the direction of travel of legislation in the provision of legal services. Recommendation 20 of the Report is that law departments be the set up as separate business units.

Currently I am facilitating the implementation of these steps with a number of GCs in the UK and in the U.S.A.

Please email me at cfenton@ciaranfenton.com if you would like to hear more.

Ciarán Fenton

What should COVID-19 CEOs do about The Mayson Report Section 4.12, if anything?

On the morning of June 11th. 2020 The Centre for Ethics and Law, University College London, published a report written by Professor Stephen Mayson with the title: “REFORMING LEGAL SERVICES – REGULATION BEYOND THE ECHO CHAMBERS – FINAL REPORT of the Independent Review of Legal Services Regulation”.

This Report almost certainly did not form part of the bedtime reading of most CEOs, board members and management teams that evening. 

It should have done.

Or, at the very least, they might have read or yet might read to their advantage pages 147 to 152 which relate to “Corporate legal departments and in-house lawyers”. 

Even if you are a “COVID-19 CEO” – i.e. a CEO trying to get your business through the pandemic – with no legal department or in-house lawyers you should read these few pages because many of your customers and/or your suppliers will have law departments. 

In any event, you will have dealings with private practise lawyers. These are connected to in-house lawyers with whom they maintain almost umbilical cord closeness because most in-house lawyers started their careers in private practice and because the system does not allow that cord to be cut for reasons which become clear if you read the other 315 or so pages of the Report.

These pages also go some way to explaining why you call your in-house lawyer your “in-house lawyer” a term you do not use for any other executive in your business. For example, you don’t call your CFO your “in-house accountant”, do you? 

So what is this Report about?

Helpfully, Professor Mayson includes a section headed “In a nutshell” in his Preface as follows:

“The current framework for the regulation of legal services in England & Wales has its origins in the self-regulation of the legal professions. As a result, it is superbly (and rightly) designed to preserve and protect those legal services that are critical to the rule of law and the administration of justice, and the integrity of the practitioners who provide them. The downside is that this regulatory approach is then applied to all other legal services and all other providers. In practice, lawyers have consistently estimated that on average only about 20% of their work falls into the category of services that are ‘reserved’ exclusively to them – though it will be higher for most barristers…The conclusion of this Review is that the regulatory framework should better reflect the legitimate needs and expectations of the more than 90% of the population for whom it is not currently designed. The current arrangement of ten front-line regulators, plus an oversight regulator, is cumbersome…this Report proposes that we should in future allow the registration and regulation of all providers of legal services, whether legally qualified or not. Registration and regulation should be the responsibility of a single, sector-wide, regulator to ensure a common, consistent and cost-effective approach, subject to a statutory duty to apply only the minimum necessary regulation. The nature of the regulation applied to registered providers would be founded on the public interest of furthering the rule of law and administration of justice…”

I suspect the 90% revelation will shock you as much as it shocked me as will as the ten plus one regulators involved who I expect will be a bit cool about the suggestion that they should be replaced by just one.

In his Preamble, he goes on to say, inter alia:

“… The legal profession’s echo chamber is a comfortable and comforting place for many of its members and representatives. The reverberating belief is that all is fine, that citizens are best served by qualified lawyers, and that the world would be a better place if all providers were like them – in fact, better still if they were the only providers…There is talk of lawyers versus the rest – ‘us’ and ‘them’ – where the latter are variously described as ‘non-lawyers’, the ‘unregulated’, ‘para-legals’, and ‘support staff’. In short, they are labelled by reference to not being lawyers. The individuals who provide legal services in law firms are more likely to be introduced as ‘fee-earners’ rather than as legal advisers, who will work ‘chargeable’ hours. They do so in order to generate ‘profit per equity partner’. The insidious consequence of this language is that employees appear to clients to be engaged to baffle them with technicalities and to earn money from them rather than advise; to maximise time that can be charged to clients (often at the expense of developing relationships, support, and meaningful and timely communication); and to charge for the input of time, irrespective of the value of the outcomes of that effort. The problem with the lawyers’ echo chamber is that its beliefs and opinions are shared by so few others. It matters not whether those beliefs and opinions are ‘right’…

Lawyers may agree or not with Professor Mayon’s tough analysis but if he is right, shouldn’t that worry you, yor board and management team?

There then follows a list of 13 “Findings” and then no less than 46 “Recommendations” in respect of which Recommendation 20 on page 151 will be or should be of interest to you, your board and management team for it states:

“An in-house legal department should be capable, for regulatory purposes, of being registered as a distinct business unit, so that the department’s delivery of legal services would be subject to the same regulatory obligations as any other registered provider. Individuals within such a registered in-house unit should also be registered personally if they carry on activities for which before-the-event authorisation or personal accreditation would otherwise be required.”

Professor Mayson sets out his reasons for this Recommendation on pages 147 to 151. Of these, the following points may be of particular interest:

Most of the organisations that maintain in-house legal departments will not regard ‘legal services’ as their main activity. However, the principal activity of the in-house legal team will certainly be the provision of legal services to their organisation. Analysis of the legal services market shows that a significant and increasing volume of lawyers (about 20%) and legal services are now in in-house settings. There is little doubt that a tension is inherent in this relationship when the client for legal services is also the adviser’s employer. The usual expectation of ‘independent’ legal advice is often stretched….”

Think about that statement for a minute. Your company is your in-house lawyer’s client, not you. Yet they report to you, or to your CFO. You control their pay and rations, and you mark their homework in their annual performance reviews. Isn’t he right that there is an “inherent tension” here? If he is, shouldn’t that bother you?

He goes on to say:

“… those in-house advisers who are professionally qualified would typically prefer to maintain their professional independence, ethics and standards and not bow to any organisational or commercial pressures to modify their advice to make it more palatable to their internal clients. In these circumstances, it is arguable that those with professional obligations might benefit from further regulatory support… In principle, they should not be at risk of dismissal or disadvantage simply for observing their professional obligations….”

Is your in-house lawyer “at risk of dismissal or disadvantage”? Then think about his next statement:

“Further, effective corporate governance should ensure that in-house lawyers are able to function effectively and are supported in doing so….This might entail express conditions in their employment contract, and a direct reporting line to the Board (or to the chairman or a senior independent non-executive director)…”

Can you imagine that? Your in-house counsel not reporting to you and with different a contract to everyone else? How does that suggestion make you feel?

He goes on to say:

“..we should not presume that “corporate governance alone is sufficient to address the public interest – there will be times when general counsel need recourse beyond their board, to their regulator (e.g. when the concerns derive from, or are perpetuated by, behaviour at board level)”….[and]…since the officers are not the lawyers’ clients, we would expect lawyers to take steps to protect the company, which has no legitimate interest in violating the law or in becoming the victim of management illegality. But lawyers will be reluctant to antagonize corporate officers because their jobs, assignments, or retentions depend on their good will. Yet their duty is to protect their client….”

Can you see how some high and indeed low profile corporate collapses may have been avoided and may be avoided if a regulatory environment existed where it was easier for in-house lawyers to have “recourse beyond the board”? Maybe the collapse of your business could be thus avoided.

Professor Mayson goes on to say:

“… These are not just private or commercial matters, and we cannot afford to assume that effective corporate governance always exists and is always effective. Constant vigilance, and robust independent advice from in-house lawyers, is required….For a discussion about best practice, see Moorhead et al. (2019). “a tension is inherent in this relationship when the client for legal services is also the adviser’s employer”…As we have seen in recent years, corporate failures can lead to consumer and societal detriment. In-house lawyers have to be able to sound alarm bells without the chilling effect of potential reprisal. The public interest in effective and fearless legal representation is engaged in much the same way as it is in private practice….”

Note the words: “chilling effect of potential reprisal”. Are these words not chilling? Is it not shocking that the public interest, which lawyers are required to protect, is potentially not being protected in your organisation?

Section 4.12 goes on to explore how a separate legal business unit might operate. So what should you, your board or management team do about this Report, if anything?

Option 1: Don’t wait for any change in the law; voluntarily implement at least “the separate unit” aspect of Recommendation 20 as soon as possible because it makes sense for your organisation and for society for the reasons set out in the Report and especially at a time of pandemic and then actively promote the entire Recommendation to lawmakers.

Option 2: Ignore the Report until you have to deal with it when or if the law changes by which stage the more robust aspects of the Recommendation may well have been watered down by those who prefer the status quo. 

Option 3. Actively protect the status-quo and lobby hard against Recommendation 20. 

I’m sure there are other options and to that end and to discuss Section 12.4 in detail I am hosting a Webinar on September 17th. 2020 – details here: https://www.eventbrite.com/o/ciaran-fenton-8237635611. 

Professor Mayson has kindly agreed to be the principal speaker on the webinar and he will be joined by panellists and attendees drawn from the C-Suite, law departments and law firms.  

Meanwhile, I encourage you to think the unthinkable and choose Option 1 now. Why?

Because if the Legal Services Act is as dated as stated and if the context in which your in-house lawyers operate is as dysfunctional as this Report asserts then you should be afraid. Very afraid because it means that a system that is meant to protect your business and society doesn’t. And if you care only for your business’ profitability only in the short-term, you will find that COVID-19 has created an environment in which you will be out of step with the public mood in short order.

If you do decide to voluntarly implement the “separate busieness unit” aspect of Recommendation 20 now, I suggest you sit down with your in-house lawyers and their favourite our-of-house lawyers and together create a new target operating model for your law department. 

Over several years I have piloted such units with in-house teams and have developed a framework which you can use here: https://ciaranfenton.wordpress.com/2020/03/22/in-house-tom-index/

But even if you decide to do nothing, decide to do nothing with full information and read the Report. Then, at least, you can justify your decision to do nothing, and you won’t fall into the compound ignorance trap of not knowing what you don’t know.

Ciarán Fenton

COVID-19 CEOs: Is your use of your “Leave Meeting” button causing “ZOOM cruelty” and damaging your business?

Feelings of shame, hurt and anger, to name just three, were merely business as usual (“BAU”) at and after pre-COVID meetings at which people were physically present.

When I had a “proper job” in corporate life, I recall leaving meeting rooms and boardrooms in one of three moods:

• Red-faced with shame: “And unlike Joe Bloggs, whose results were stunning, Ciaran’s department’s revenues were very disappointing indeed last month”. The D-Word used with devastating effect.
• Beaming with pride: “And of course if only everyone in the business took a leaf out of Ciaran’s innovation book…” No turn left unstoned.
• Rigid with boredom: “Ok, listen up everyone – my 30-slide deck on next year’s strategy is inspiring…” KMN.

But at least “back in the day” when a meeting ended, it didn’t stop. There was the ritual of the gathering of papers enabling football/opera/soap-opera conversations [delete as appropriate], snatched conversations with allies, snarls at enemies and, outside in the corridor/cafeteria/pub [or all three], an opportunity for fevered gossip:

• “You got a right kicking there, didn’t you mate, LOL [or the nineties equivalent of LOL]…”
• “Whose teacher’s pet this month…”
• “I’m sure I must have zoned out at Side 3…”

The spectrum of boardroom and meeting-room behaviour was broad, from the Kafkaesque – see Chapter 12, The Fear Culture in Shredded on RBS by Ian Fraser – to the most benign and holistic – see Maverick! By Ricardo Semler.

But now at a time of “back to back of Zoom meetings,” everything has changed, utterly. The spectrum has morphed into something we don’t yet fully understand.

Academics and researchers are on to it. You will find a rich list of articles, many of them on “fatigue” if you Google “the psychological impact of video meetings during COVID-19”.  

But I know from my work that people feel upset, depressed, angry, confused, misunderstood, ashamed, and bullied after they press “Leave”.

And they are alone with their feelings at a time of global pandemic, with existential fear now part of “BAU”.

CEOs can’t afford to ignore this new reality from a human perspective and from a business perspective. Not that remote working is new. It’s that remote working by everyone at a time of pandemic is new. And ignorance of your unintended cruelty is not good enough. If you are a CEO, high emotional intelligence is no longer optional. At least if you want to survive a pandemic, it isn’t.

While we wait for the outcome of this research, I offer three simple steps CEOs can take to minimise the risks to their colleagues, employees and customers of “Zoom Cruelty”, intended or not:

Step 1: Leave five minutes at the end of each meeting for feedback.

Step 2: Give permission to all at the start of the meeting that no one should leave the meeting with “an itch unscratched”.

Step 3: Set up parallel systems for 1-1 feedback.

I facilitate 1-1, one to few and one to many Zoom meetings daily. Also, I have started to replicate, in part at least, “off-sites” for which demand remains strong.

While I can’t replicate the country house hotel experience on Zoom I can spread the “off-site’ over several 90-minute video sessions over many weeks and with heavy use of parallel systems: 1-1 email, What’s App and Slido, for example, for polling.

You can’t over-communicate with people working remotely from each other.

So, next time to you are about to press your “Leave Meeting” button, pause and be kind.

Ciarán Fenton

CEOs: a 7-step COVID-19 business re-launch plan

Last week I worked with a CEO who leads a rapid growth multi-site retail business trying to figure out how to “re-launch” after his employees come back “from furlough”. If you are in a similar situation, I propose:

7-step COVID-19 business plan process

Step 1: Bin all previous plans

Don’t be tempted to re-forecast the current financial year’s P&L in the light of COVID-19 using your pre-COVID business plan’s revenue and cost budget. They’re out of date. Everything has changed.

Step 2: Draft a new PSB Statement

Start with a “clean page” and write a “brand new” PSB Statement: by which I mean your reframed business purpose (P), strategy (S) and behaviour plan (B) in the light of COVID-19.

Step 3: Develop a new target operating model (TOM) from “scratch”

A target operating model consists of at least three elements: market needs, strategic resources and processes to meet that need.

Step 4: Draft a zero-based revenue and cost budget

Don’t refer to the previous budget but build a line by line new budget as if a start-up.

Step 5: Circulate the new PSB, TOM and Budget

Gather as much feedback as possible

Step 6: Appoint a Devil’s Advocate

They must have permission to challenge everything.

Step 7: Sign it off

If you have a board, have a formal vote. There should be no hiding place nor should you drive the plan through on the nod.

Developing a COVID-19 PSB Statement

A COVID-19 PSB Statement answers three questions:

First, how will your business purpose (P) change in the light of the pandemic?

You may say that your business purpose hasn’t changed at all. You may say that your purpose remains exactly the same: maximising return for shareholders.

But that assumes that your customers, employees and society are content that your mandate to trade remains the same as before when there’s a strong possibility that it won’t. The environment, society and governance (ESG) movement which was well underway before the virus will, I suspect, resurge if perhaps after an initial falling off in “ethical” investing. Even if you feel that ESG will lose favour in the face of the harsh realities of a recession, you should have the courage to include that prediction in your PSB Statement and be judged on it.

In the case of my CEO client, his business, as it happens, is likely to benefit from increased customer need for his services because of the pandemic but he will have to be very careful indeed how his market proposition articulates that benefit. Any hint of exploitation could be very damaging to his brand.

So we worked together on what language to use to reframe his organisation’s purpose, how that change would feed into his marketing plan; how he would have to change his leadership behaviour in articulating that purpose to customers and all stakeholders, particularly in interviews, blogs and on social media.

Second, how will your business strategy (S) change in the light of your reframed purpose?

If your business purpose changes, even a little, your strategy to achieve that purpose must change at least a little.

In the case of my client, we are exploring a new strategy which focuses on contributing to customers recovery from lockdown.

Third, how will your business behaviour plan (B) change in the light of your new strategy?

This refers to the broad behavioural expectations on everyone in the organisation in implementing the new strategy to achieve the reframed purpose.

In practice, this involves throwing your pre-COVID-19 business plan and operating model in the bin and developing a new COVID Target Operating Model or TOM.

Developing a new COVID Target Operating Model “TOM”

So, three questions:

First, how will your market need change in the light of the pandemic?

• In my client’s case, his customers’ need for his service will potentially increase, but how and where they want to experience it will change.

Second, how will your strategic resources change?

• In my client’s case, these consist of people, sites and kit all of which may need to change for one reason or another. He may need to add new resources or substitute resources because of these changes.

Third, how will your strategic processes change?

• In my client’s case, the main change is likely to be home delivery of the service and significant change in the sales and marketing processes.

When you have drafted your new PSB and TOM statements and zero-based budget circulate these widely and get feedback on them.

Before your board signs off the new budget and operating plan appoint a Devil’s Advocate with explicit permission to pick holes in the plan and don’t sign it off before it passes the Devil’s Advocate’s test.

For the avoidance of doubt, as lawyers like to say, you can’t be the Devil’s Advocate.

Ciarán Fenton

COVID-19 CEOs: stay alert for aggression, active and passive; be kind to self/others

You are the CEO because you are demanding on yourself and others. When the going gets tough, the tough become bloody unreasonable. Don’t.

The novelty of lockdown has long worn off. It’s now a grind; an economic nightmare looms; the possibility of a second wave, real. The divorce pains of Brexit, whether you voted for it or not, unavoidable.

The early days of Zoom awkwardness are a distant memory; interest in your bookshelves, a tired joke; early genuine politesse, now just faux.

You haven’t changed. Your life situation has. If you were a bully before COVID-19, you’re still one. If you were extremely passive-aggressive before the pandemic, rest assured the virus hasn’t cured you.

But bullying and extreme passive aggression are poles on a spectrum upon which we all sit, somewhere. We all bully, sometimes. We are all passive-aggressive, sometimes.

One client CEO said to me that s/he wanted to have had “a good pandemic”, a war reference. The importance of having a “good” war, not letting yourself or others down – I sensed this was a genuine wish and a real fear—a desire to behave well; fear of not.

You can’t fix those on the extremes of the aggression spectrum. But there are three things you can do as a CEO if you want to avoid your unconscious behaviour making things worse for yourself and others:

1. Give bad things bad names. Don’t say on the one hand “these are unprecedented times, abnormal and weird” while on the other hand expecting everyone, including yourself, to behave normally. This is not the Blitz. This not about the Dunkirk spirit. Saying so is a disservice to both. This is a pandemic—a virus. Don’t personify it as an enemy. Enemies generate aggression. People are dying, but there are no bullets. You could die. Your colleagues could die. That’s a terrifying reality to face daily. Allow yourself and others to say out loud that they are afraid of a deadly virus. That’s normal behaviour. Create space for it. Don’t smother fear. Don’t shut people down. If you do, their fear will surface elsewhere under another guise where it may harm you, others and the business.
2. Let yourself off the hook. You’re not a war general. You’re a CEO trying to get through this. Be kind to yourself. Allow yourself to feel s**t and not feel bad about feeling that way. This is an internal process. The first step in the FEEL/NEED/DO triad, a useful tool in relationship management. What do you feel? If you feel rubbish, acknowledge it. Next, what do you need apart from not feeling so awful? A break? Some TLC from someone else? Both? You feel what you feel. You need what you need. These are not up for debate. They are what they are. You may be a CEO, but you’re not omnipotent. You control neither your feelings nor your needs at this moment. They may change, but not now. They are what they are. But you can manage your options around what you do with your feelings and your needs. One option is to show your feelings and to make your needs plain to your team.
3. You’re not a war general. It’s ok to show your fear to your team. In fact, it’s essential. Show your vulnerability, and your team will feel they have permission to show theirs. Moreover, you may get what you need from them. Just because you lead them doesn’t mean they can’t or don’t want to take care of you. But if you shut them down with aggression or passive aggression, you’ll get compliance. But the last thing you need in a crisis, that is not a war, is compliance to suit your moods. It could kill your business, if not you or them.

So, be kind to yourself and others, and you’ll get through this and, remember, #feckdevirus.

Ciarán Fenton

Three lessons COVID-19 CEOs can learn from Mr Johnson’s & Mr Cumming’s CEO/COO relationship

Let’s say, for the sake of argument and I know there are some flaws in the analogy, that Mr Johnson is the equivalent of a COVID CEO and Mr Cummings the equivalent of a COVID COO in business.

In normal times the CEO/COO relationship is tricky. In times of pandemic, it’s positively problematic. COVID-19 CEOs and COOs are like no other CXOs, whether they like it r not.

At the risk of teaching granny to suck eggs, here’s a reminder of what a CEO and COO are, and what they should be doing:

The CEO

A CEO is (or you are), and it’s worth pointing out the obvious because some forget it and others ignore it, the chief executive officer in your organisation. This should be obvious. Unambiguous, as it were. The title is, as they say, “what it says on the tin”. The giveaway word is “chief”. Just reflect on the word “chief” before reading on or you may wish to replace the word “om” with the word chief it in your next yoga session.

You as CEO do three things and three things only. Or should.

1. Help the people you lead to thrive
2. Grow or ensure your organisation is flourishing
3. Balance the needs of stakeholders

I have worked with many CEOs, all of them driven but each of variable IQ and EQ. Few do all three things well.

Some are brilliant at No2 and less so at 1 and 3, except in delighting shareholders, of course.

The COO

Your COO is your Chief Operating Officer and sits on your operating board and, in some companies, sits on your main board along with you and your CFO.

The role and purpose of your COO is to keep your organisation’s promise with its customers. Nothing else, in my view.

I know that’s controversial as many boards like to say that their COO “runs the business day-to-day” and their CEO “does the strategic stuff”.

This is tosh IMHO, because:

• Your CEO must lead the business day-to-day. They can’t duck that, I’m afraid. Try as they might.
• Your board and people working in your organisation need to be in do doubt who is the boss – it’s you, the CEO. Full stop. Your COO reports to you. Your COO is not some joint CEO-type-person. Write a woolly COO job specification and you are begging for trouble and endless politics.
• People like to drive a wedge between the COO and CEO if they can. Don’t be doing with that. It’s a total waste of time.
• The “strategic stuff” is meaningless management-speak and guff.
• A strategy is a sentence describing how your organisation will achieve its purpose. It consists, usually, of one line as in: “our strategy is to grow by rapid acquisition, globally”. There’s no “stuff” to be done on strategy.
• Everyone on your operating board is involved in the implementation of the strategy, not just your you or your COO
• But only your COO is responsible for customer satisfaction
• If your customers are unhappy call your COO. Only one point of contact. One point of control. Only one person can or should fix it.
• In the old days, they would be called Head of Production or Head of Services.
• Today they are heads of “delivery”. [Side note: “delivery” is the one word I have tried to stop using but can’t. I wrote to Lucy Kellaway when she was the doyenne of eliminating management-speak at the Financial Times to ask her advice. “Never” she replied  “should the word delivery appear in a sentence in which a van does not also appear.]

So, is the role and purpose of your COO in your organisation clear and crisp or is it part of the problem on your operating board? Be honest.

All, except the pathological and narcissistic – and I have met a few of those – are capable of so much more if they made small changes in their behaviour and if you and your COO can change yours just a little the impact can be big.

So the three lessons you can learn from Messers Johnson and Cummings without getting into the politics of it are these:

1. The impression is that Mr Johnson doesn’t call all the key shots. He should. And if you are a CEO so should you and everyone should know that it is you, and you alone, who calls them. Mr Johnson should not have allowed Mr Cummings to give a press conference alone in No 10’s Rose Garden. It confirmed the impression of leadership ambiguity at the top.
2. Mr Johnson is not paid to lead us, “the people”, but to lead his Cabinet, his MPs in Parliament who represent us and to lead his senior staff. His job is to create an environment in which they thrive so that we all will thrive. Since Mr Cummings, Mr Hancock, and Mr Raab – to mention just three – will not go down in political history as “the greatest leaders at a time of pandemic” it’s clear that Mr Johnson is falling short of the high standards in his leadership of them. If they are not doing well it’s his responsibility as is the performance of your CXOs. Sack them or help them but don’t ignore them. That’s would be a dereliction of your duty.
3. Mr Johnson and Mr Cummings appear to have a shared purpose (P), a shared strategy (S) and a shared behaviour plan (B) – that is a perfectly shared PSB in my leadership model. The not so tiny flaw is that their PSB is not shared by most if not all of the people they co-lead and they are, sadly, co-leaders. Sadly, because joint leadership never works as well as single leadership. Mr Johnson and Mr Cummings reflect many singularly driven CEO/COO relationships in business, particularly in start-up, early stage and rapid growth contexts. In these cases the CEO and COO usually co-founders “have a vision” which phrase of itself should set off alarm bells and they fail to take others with them but rule with rods of iron. Don’t do it. It will end in tears. And while the day will come when Mr Johnson will use those famous words ” we are leaving Downing Street for the last time” he is unlikely to shed a tear as Mrs Thatcher did because she loved the job and I have a hunch that Mr Johnson doesn’t – but one way or another Mr Cummings won’t be there to save his legacy.

Your COO won’t be there to save your legacy, either.

Ciarán Fenton