In-house lawyers: building relationships at a time of change & upheaval – Ciarán Fenton’s speech to The Law Society of Ireland’s Annual Conference, Dublin, 8th. November 2018. (SPEECH FORMAT)

 

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 Ciarán Fenton

Leadership consultant

Building relationships at a time of “change & upheaval”

morning keynote speech

 at

The Law Society of Ireland

Finuas Skillnet

ANNUAL IN HOUSE AND PUBLIC SECTOR CONFERENCE

Thursday, 8th. November

Blackhall Place

Dublin, Ireland

Good morning, delegates.

I must start by unburdening my conscience. I must confess to having bad thoughts about some lawyers.

To be perfectly honest – I have a sort of “love-hate” relationship with them. I say sort of because love’s DEFINITELY too strong a word. Let’s be clear and for the avoidance of doubt as you, people like to say: I-DON’T – LOVE – LAWYERS. And you’re not to tweet that I do!

And hate’s TOO strong a word, too. What I mean is sometimes I find them VERY frustrating. But I do admire them. I do respect them. Perhaps, part of me even envies them.

I’m NOT a lawyer. Note that I DIDN’T say I’m a NON-LAWYER Whoever came up with that expression should be shot!

Between 1978 and 1982 at UCC, I studied “Commerce”. I MAJORED in Law & Accounting. Then I spent most of the next 35 years working with lawyers, in one guise or another. First as an accountant – and later as a divisional director and managing director in various organisations mainly media companies. So I spent a lot of time with lawyers mostly on commercial or intellectual property deals.

When I set up my own consultancy, over 15 years ago, I ended up spending more than HALF my time working with lawyers of all kinds – in-house, private practice, public and private sector, B2C and B2B.

I’ve lost count of the number of legal sector talks, workshops and conferences I’ve done. The plethora of blogs and articles I’ve written. The number of 1-1 sessions I’ve had with in-house and private practice lawyers, young, old, and middle-aged. I’ve even worked with the most maddening lawyers of all – barristers.

So, I must know hundreds of them – which makes me feel like a kind of David Attenborough of the sector. Fascinated – even obsessed – yet not one of them.

In the main, most lawyers I’ve met are usually “nice” people. And they’re invariably bright – sometimes, awesomely bright. And they’re incredibly hardworking. And they’re interesting and good company because they tend to be readers and thinkers – and have opinions on everything from politics to sport.

But there’s one thing I’ve come to notice over the years with lawyers, is that they behave as if they feel they have to know EVERYTHING!

Now, I don’t BLAME them for this. Society grabs very bright young people from university puts them through law school – where they are force-fed an adversarial model, and more often than not made to value thinking over feeling. After that, they’re worked to death in law firms.

Yes, We need our lawyers to be tough, analytical and unemotional. And we hire them because they know the law – and we don’t. So, what’s the problem?

Well, it’s this. Many lawyers end up in leadership roles of one sort or another. Roles they’re OFTEN not prepared or trained for. One GC client of mine – from an international business with a huge Legal team – was once asked whether she became a “manager” by luck or design?

She answered that she started as a litigator and loved litigation. Later she worked on commercial deals and became a bit of a “deal junkie”. Then she was spotted as a potential leader and was given some leadership roles

She liked the promotion but said that she had no proper TRAINING in LEADERSHIP, OR in other business disciplines, like, for example, MARKETING.

I choose marketing because it can to some appear to be the most nebulous of functions. I’ve known some lawyers to look down their noses at marketing. One equity partner client earning over a million dollars once said to me: “Marketing? how complicated can marketing be? All you need are forty tickets to Wimbledon…”

At a stroke, he had reduced to nothing all the art and science of marketing – which is awesomely difficult to learn and to get right.

But to be fair to lawyers when it comes to the use or abuse, of the word STRATEGY they HAVE a point. Strategy, after all, simply means “HOW?”How will you achieve your objectives? That’s all. The rest is MANAGEMENT SPEAK.

And it’s not a case that lawyers don’t go on management or leadership courses – they do. But they approach them with a particular mindset forged in the CRUCIBLE of their legal training.

Their training usually excluded the F-word – Feelings. Lawyers are trained to distance themselves, to some extent, from their feelings.

That’s OK when it comes to black letter law – Or in court – Or when you just want to win your case, Or deal point. But leading people requires a DIFFERENT skillset because it’s more problematic. And the problem is, you CAN’T lead unless you engage with your feelings and with other people’s feelings. I’m afraid there’s no way around it.

So Lawyers must find a way of increasing their EMOTIONAL INTELLIGENCE if they want to manage their relationships successfully. That’s it. That’s my core message today.

It’s in your personal interests, in your family’s interests, in your profession’s interests, in your Legal Function’s interests, in your organisation’s interests, and – of course – it’s in the interests of society – that you increase your EI or EQ, whatever acronym you use.

Don’t take my word for it – just Google EI or EQ, mindfulness or empathy at work. You will find that this is not a fad. This is here to stay. Because the fads have gone. They were blown away by the last corporate scandal. The trust barometer has been broken into smithereens – and we all know it.

So there’s no getting away from it – in the 21st century – if lawyers are going to be fit for purpose, increasing their emotional intelligence is an ABSOLUTE must.

There are LOADS of books written about emotional intelligence – some better than others. Daniel Goleman is great if you want to understand the theory and the practice of EI. Brené Browne’s top ten TED Talk on how showing your vulnerability is NOT a weakness is excellent. Her book, Daring Greatly, which was given to me by a GC, Is well worth reading. Eckhardt Tolle who wrote The Power of Now is brilliant on mindfulness.

From all my reading of these great authors and from all my work with clients I distilled EI down to three components:

  1. Empathy.
  2. Self-awareness.
  3. The ability to negotiate your needs productively.

Empathy is about being able to understand how another may be feeling. Self-awareness is about knowing how you behave on a good OR bad day and the ability to negotiate your needs productively is about win-win NOT win-lose and NOT lose-win.

It is often in the area of negotiating needs that many lawyers come unstuck. It may be productive to get your needs met in an adversarial manner in court, or in negotiating a deal or a contract but that approach will not get you where you want to get to with your relationships.

Now, some of you may be thinking – this is all very interesting, but it isn’t about me – I’m not a leader. Some of you may not even have a team.

My belief is, based on my experiences that if you’re a lawyer, you ARE a leader. Let me explain to you why I believe that you are a leader whether or not you lead a team: It’s because you are an officer of the court.

That means – to quote the Law Society of Ireland’s Guide for In-House Lawyers May 2018: “You have an overriding duty to the court to ensure, in the public interest, that… justice is achieved”. And that’s a leadership position. In your organization –In your community – In society.

You colleagues in Finance, Operations, IT etc. They are NOT officers of the court. They do NOT have the same broad legal responsibilities.

Philip Wood QC, Visiting Professor of Law at Oxford, wrote in the January Edition of Modern Legal Practice: “legal systems are, in all their aspects, the most fundamental source of morality… the world may be able to do without its various philosophies and religions …it cannot do without its laws” …

So, you are guardians of the rule of law and defenders of our hard-won democracies. And when it comes to upholding the rule of law, your role is to protect us from ourselves – as one GC, for example, put it to stop us sending that stupid letter; to put the good of society above what is expedient for the business or organisation.

And if all of that’s not lofty and high fallutin’ enough for you if you HAVE a team, not only must you LEAD them as well as any other leader in your business or organization, but you must lead them in accordance with your higher purpose in society.

 The first rule of leadership is to create an environment in which the people you lead, THRIVE. And what could be more at ODDS with your legal training than creating an environment where the other guy thrives? Were you not trained to some extent not only to win but to ensure that the other party loses? Is that not the essence of an adversarial system? But as leaders, you can’t treat your context as a gladiatorial arena. That’s a recipe for disastrous relationships.

And over the next five years – a period of “change and upheaval” the strapline of this conference – you will have to grapple with these contradictions in your business – in your public sector organisation – and in your head.

So, imagine this is 2023 and not 2018 just five years from now. And, imagine if with the kind permission of The Law Society – albeit with a forty-page health and safety disclaimer – a Time Tunnel, like the one in the TV programme we used to watch as kids – were to appear behind me, and we all entered it together and tumbled into the future but back into this same hall, here in Blackhall Place in Dublin the year would be 2023.

If still alive, we will have aged by five years. I will be 63. You will all be five years older. So picture yourself in five years’ time? What work will you be doing? Where and with what title? Will you still be an in-house lawyer? How will the function have changed, if at all? Will it be, as you lawyers like to say, B-A-U, business as usual? Lots of stuff done using new technology and AI, but the core will remain unchanged – but with some techy bells and whistles ridding you of some of the tedium.

Or will the legal sector be unrecognisable from what it is now – like the airline industry is when compared with 25 years ago?

All the art and science of legal counsel and process serves the purpose of ensuring that the business – or the organisation – makes the best decisions it can.

And how you manage your RELATIONSHIPS up, down and across – impacts HUGELY how those decisions are made. So the most important thing for you to do now is to focus on managing your relationships as well as you can. That way you will be prepared for any outcome and you will have a more fulfilling and rewarding career.

Life and work are about how one person, one team, one function, one board, one business, one organisation, or indeed one country – relates to another.

Yes, you can become more and more expert in your area of legal expertise. But this is not what worries the GCs I work with apart from the nonsense of doing “more for less”?

They are concerned about their relationships. They are worried about making a mistake. Some fear their boss or specific people in ‘the business’? Some see in emails and texts sleights – real or imagined. And they often feel angry, frustrated, unappreciated or sometimes, just bored

These are all feelings. If you Google feelings you will get a chart of ‘emojis’. These come under four headings: Happy, Sad, Angry and Other. Let’s pick three from each

Happy: Confident; content; loved

Sad: Disappointed, Hurt, Unloved

Angry: Annoyed, Frustrated, Fuming

Other: Anxious, Jealous, Bored

SO how can YOU manage these feelings – and therefore your relationships – better? That’s a big subject. It’s what I spend most of my time doing with boards main and operating and Exec. Committees and with lawyers and their legal teams.

And I too use an acronym. It’s P – S – B: Purpose, Strategy, Behaviour.

Your starting point is to review THREE purpose statements:

FIRST, what’s your personal purpose as an in-house lawyer?

SECOND, what’s the purpose of your Legal function?

THIRD, what’s the purpose of your organization? Unless these three purposes are CLEAR. Unless their INTER-dependence is NEGOTIATED  then it follows that the relationships on which they depend are at risk.

On your personal purpose:

Why are you an in-house lawyer? Why do you want to remain a lawyer? Did you always want to be one? Did you drift into law? Or were you pushed?

Since you are where you are what’s your purpose now?

You have choices – you can stay where you are, and make it better – or you can leave. Whatever you decide, make sure you have a purpose – even if your purpose is to figure out your purpose. The quality of your relationships – which is what this talk is all about will come back time and time again – to the extent that OTHERS can see and feel that YOU have figured out YOUR personal purpose.

They won’t speak openly about this of course But that does NOT mean they’re not trying to figure YOU out.

Next, you must decide on the purpose of your legal function in relation to the purpose of your organization.

Earlier this year I was commissioned to write an article for the quarterly journal  – Modern Legal Practice. You can download it from my website. The title was: GC role and purpose: a revolution, not evolution, is needed by business and society

The gist of it is this:

When it comes to legal counsel and process – you know, and they don’t. The relationship is asymmetrical. FULL STOP. So you must have the courage to tell – not ask – the organisation what it needs to achieve its purpose. Now that can be a bit scary and for good reason, there is “scared” emoji

Next, you can move on to your personal  STRATEGY. That is, HOW will you achieve your personal purpose? I recommend that your strategy should be to learn how to lead by connecting with your feelings – as well as your thoughts.

You were trained to think. That’s made you a good lawyer. Now you need to train yourself to feel as well as you think. That’s about using a different muscle.

That brings us to your B – the behaviour you will use to implement your strategy to achieve your purpose.

Feel Need Do is a useful tool, championed by Marshall Rosenberg and others, to help you manage your feelings and therefore your relationships. It works like this:

So, start with what you feel about a situation, then ask yourself what you need in relation to that feeling. Finally, ask yourself what OPTIONS you have in terms of what you can you do to meet your need to address your feeling.

Often lawyers jump to DOING because their legal training ensures they usually know what to Do. Doing is their comfort zone. They should pause. Check what they feel and what they need.

In summary, there are three steps to managing your relationships better:

Step 1: figure out your personal purpose

Step 2: decide on a strategy to achieve it

Step 3: then make small changes in your relationships every day.

Just start by changing ten interactions in every hundred to reflect your newly-framed purpose as a lawyer-leader. Changing just ten interactions is only 10% of all interactions.

That’s small change.

But – in aggregate – small changes will have a big impact on you on your business or organisation and society. So if you want to manage your relationships better – and you’re looking for two words to sum it all up – then SMALL CHANGE sums it up.

If you’re up for Small Change in YOUR behaviour then, hard as it is to believe, you will notice big changes in THEIRS.

I know it seems like a contradiction that to get others to change you have to change first. But it’s true.

And take a moment to think about the complexity of some of your relationships today. If you RAGed them now: how many are green? how many are amber? how many red?

How can you convert the Reds to Green – and prevent the Ambers going Red? The answer lies with you – not them.

Recognise that, and you will be well on the road to being a great lawyer-leader.

Thank you

 

 

 

Society needs in-house lawyers’ employment contracts to be regulated

Contract of employment

“The only difference between in-house and out is that they have one client,” said a GC at a recent conference.

I struggle with this. Yes, in-house lawyers focus on one business, but the word “client” doesn’t appear in their employment contracts, nor is it an accurate description of their relationship with “the business”.

In-house lawyers are employees. Their employment contracts enshrine their rights and obligations. They are entitled to holidays, sick pay, pensions, bonuses and Long-Term Incentive Plans (LTIPs). They are hired, appraised, fired or made redundant just like everyone else.

However, their contracts are silent, to my knowledge, on a) their role as Officers of the Court b) any client-type relationship with “the business” and c) that they are regulated by the SRA or a law society.

In private practice no lawyer would or could participate in the equivalent of an LTIP or bonus scheme with a client nor could they be beholden to them in any way save regarding the quality of their work.

Indeed private practice lawyers require their clients to sign carefully crafted engagement letters which protect the law firm and which reflect their arm’s length relationship as regulated professional advisors.

If there’s no difference, other than client volume, between in-house and out, why don’t in-house lawyers have the same protections against unacceptable behaviour towards them as out-of-house do?

Moreover, for the same reason, shouldn’t in-house lawyers be precluded from participating in LTIPs?

To address these issues, an In-House Lawyers Special Terms Schedule could be attached to their Employment Contracts drafted by the regulator and covering three main points:

  • The employer acknowledges that the employee is an Officer of the Court and has an overriding duty to the Court to ensure, in the public interest, that justice is achieved
  • That the employee is precluded from participating in LTIPs or any scheme likely to create a conflict of interest
  • That the employer undertakes to use their best (not reasonable) endeavours to create an environment in which the lawyer employee can discharge their duties without fear of any ethical pressure whatsoever and acknowledges, that breach of this requirement would attract investigation and severe penalties

Dream on, you may say. Well, you would if you are a director disdainful of good corporate governance or a GC very focused on their LTIPs. As one said to me, you ”must have skin in the game.” Who says that you “must”? And it isn’t a game. Or shouldn’t be, at least for lawyers.

There is no current financial incentive for any individual directly involved to change the status quo.

Why would any GC at the top of the in-house profession rock the boat? I don’t blame them. They didn’t create the system, have worked very hard and probably feel they should benefit from it financially like others in “the business”, especially having eschewed higher fees in private practice.

But I suspect that if GCs waived their bonus and LTIP rights, their salary market rate would auto-correct upwards. That said, if lawyers want to make a lot of money, they should stay in private practice.

Private practice lawyers are not going to change anything lest they offend the GCs and ”the business” which writes them large cheques.

And “the business” will not want to cede power to an employee whose role is, in their minds, to ”do more for less”, be “commercial” and not be a “deal preventer”.

Such phrases risk the lawyer-employee participating in decisions which ignore or break their professional obligations or otherwise being castigated for raising legitimate concerns.

The law societies could help, but they need new legislation and funding from in-house lawyers to give them the power to support their members.

This issue is not about lawyers – in, or out of house. Nor is it about “the business”. It’s about society and the basis on which it mandates businesses to trade. We can’t look to individuals in the profession to solve the problem, many of whom don’t see a problem.

But if nothing is done then poor corporate governance leading to the repetition of seriously damaging and dangerous risk events, which we have seen over the last 20 years, will increase as well as ongoing poor treatment of lawyers. Far too often “the business” shoots the messenger.

The solution is that the government reviews of the provision of legal services currently underway or near completion in the UK should include provision for special terms for in-house counsel so that the various law societies can support their implementation.

I drafted this blog on a flight yesterday from Dublin where I spoke, and listened, at The Law Society of Ireland’s In-House and Public Sector Annual Conference. One GC said that in his organisation he and the Finance Director are not on LTIPs. He believes that this makes a noticeable positive difference in their decision-making behaviour on their management board.

Last month I spoke at The Law Society of Scotland’s Annual Conference at which one GC acknowledged that my suggestions are worthy of a debate while another was very concerned about my use of the phrase “stick to beat the business with when it misbehaved”.

I slightly regret using the word stick. But only slightly. My point was that I know enough lawyers who have experienced appalling behaviour at the hands of “the business” to feel that it needs to know there’s a line it shouldn’t cross and the consequences of doing so. The GC role is different from that of a director but too few businesses are willing to accept that.

And earlier this year I chaired a session at The Law Society of England and Wales at which some GCs took a dim view of my comments on LTIPs, but notably, not all in-house lawyer delegates.

So we can’t expect lawyers, as individuals, to defuse this time-bomb, and a time-bomb it is. Society will soon not only ask “where were the lawyers?” – they will hold them accountable.

So what if lawyers came together, confronted this issue, took the long view, “had each other’s backs” and that of society? It takes just a few in-house lawyer-leaders, with credibility amongst their peers, to lead the way and to engage with those appointed to review the provision of legal services to empower law societies to better support in-house counsel with teeth, if not sticks.

Could you be one of those lawyer-leaders?