7 First 100 Days suggestions to Facebook’s new GC, and all new GCs…

1. Remind her board that she is an officer of the court and lawyer first and a business person second

2. Waive any long-term incentive or bonus scheme which might possibly be construed as compromising her independence, no matter how remotely

3. Tell the board that if they put her under any ethical pressure whatsoever she will publish the fact widely including on her Facebook page

4. Tell the board that her role and purpose, and that of her legal function, is to enable better decision-making and legal process which honours the environment, society, governance and profit, equally

5. Tell the board, not ask it, what legal counsel and process it needs to achieve its objectives and manage its SWOT; tell it how much all of that will cost and deliver only what is funded; no ”more for less” BS.

6. Help create a culture where ”calling out” unacceptable behaviour is the norm

7. Strive for a legacy which reads: ”She helped Facebook move fast and break things, but never the law” because people died in trenches so that democracies could survive through lawful behaviour and trade.


NEDs have power, not just influence: they should use it or lose it.

katie porter

There’s no “NED box” to tick on the registration form for Directors required by Companies House.

Neither is there a distinction made between executive and non-executive directors in the Companies Acts.

Each NED has the same legal duties, responsibilities and potential liabilities as their executive counterparts.

Even insurance companies, the ultimate arbiters of reality, don’t offer cheaper premiums for NEDs.

Yet we all know that in practice many – although thankfully not all – NEDs behave, and are expected to behave, as if they are observers, influencers or, in the parlance of school governors – “critical friends”.

In my experience working with otherwise not-to-be-messed-with CEOs who become NEDs, there is a tendency among some towards timidity, fear of rocking the boat, and a hyper-gratitude for having a NED role at all in a competitive market.

Some NEDs place their “calling stuff out” setting on “Low” on the basis that they believe that “operational” matters constitute the bulk of a board’s deliberations and they are petrified of “interfering in operational matters”.

High on the list of some NEDs’ fears is a horror of developing a reputation of “being a pain the arse NED”. This widely used term, unsurprisingly, does not appear anywhere in the Acts.

To be fair to NEDs it’s not their fault that legislation has not yet caught up with the developments in ESG reporting, the trend towards “impact” investing and increasing calls by high profile business leaders for business to serve society.

The recently updated FRC Corporate Governance Code and the other “lighter” codes offer a clue to NEDs as to the regulatory direction of travel.

And the direction of travel is, without doubt, towards board decision-making which balances environment, society, governance and profit issues equally (ESGP).

My advice to NEDs, therefore, is to do three things: use to the full the powers granted to them by the Acts; build close, supportive relationships with GCs and thoughtful lawyers and become a complete pain in the arse in support of ESGP.

Why? Because society is demanding it. If you need convincing, watch the short video on social media of JP Morgan CEO Jamie Dimon squirming under the calm but razor-like interrogation of Rep. Katie Porter at a recent congressional hearing.

He failed to explain to her how he could help one of his low-paid employees make ends meet while he trousered $31m. As CEO his ESG settings seem to be set at “Very Low/Almost Off” in respect of costs.

I’m afraid the revolution is a ‘comin. And it won’t be about socialism. Or about reformed capitalism. Or about CSR. Capitalism is just fine. What will change will be the nature of the mandate society will grant organisations to make a fair return on capital employed. That’s all.

The harsh reality is that for Mr Dimon’s employee to make ends meet, his company will have to spend more on her and less on himself or others. It’s that simple. That means boards taking decisions that reduce profits. Slightly goes against the grain, doesn’t it?

I don’t buy the view that “ethics are good for business”. If you could make money from ethics, everyone would be at it. This is where NEDs come in. Their job will be to restrain the executives from unbalanced ESGP decisions.

They will feel the heat more acutely soon. And if they don’t measure up, society won’t allow them their much sought after “portfolio” careers. This will hurt them because many NEDs genuinely believe they are doing a good job and protest that they are “allowed” to say what they like.

The bar is about to become much higher. What passes currently for calling out poor conduct on the board by NEDs will in future be seen as merely benign nagging. NEDs will, in future, have to threaten serious consequences if their reasonable challenges remain unheard.

Do you think this is far fetched? If so, think again. NEDs will use or lose their power. Society has had enough of the Carillions & Persimmons, the dodgy auditors and poorly behaved bankers, unfair pay and male-dominated boardrooms. Listen to the mood music getting louder in the vacuum created by the extreme left, and right. Centrists are pro-capitalism on fair terms.

And lawyers will be the first to be told to change their behaviour by regulators. In turn, they will kick “the business” hard, because they will have the regulatory power and professional backing to do so.

Some lawyers will resist and end up in orange jumpsuits if not sidelined by a giant of a profession stung into action by society’s demands after years of complacent slumber.

NEDs will be next in line to worry about the consequences of their behaviour. My advice to them is not to wait for the tumbrels to roll, but at your next board meeting to ask this simple question:

“How does this decision impact the environment, our responsibilities to society, our requirement to meet the highest standards of governance and at the same time our need to make as much money as we can? Is this decision ESGP compliant?”.

Like Rep. Katie Porter, use your power to ask hard questions, repeatedly and without fear or favour. Otherwise, sooner than you think, you’ll be the one under cross-examination.

Ciarán Fenton

Is the partnership model a busted flush? My speech to The Managing Partners’ Forum…


Ciarán Fenton

Leadership Consultant

Facilitating Emotionally Intelligent Boards

A speech to members of The Managing Partners’ Forum’s

Debate on The Future of Partnerships

Is the partnership model a busted flush?

London, Thursday, 4th. April 2019


Fellow providers of professional,

advisory and consultancy services to clients,

Good morning!

My thanks to The Managing Partners’ Forum

for inviting me to speak on the motion

this morning which is:

The Future of Partnerships

Is the partnership model a busted flush?


I will argue that the partnership model

is suffering from boiling frog syndrome


The water around it is tepid

the temperature rising by the day

it’ll be dead before it realizes what’s happening


I will focus my remarks on legal services partnerships

because I know them best

However, my comments apply

to almost all professional services partnerships

and contexts


In respect of lawyers, I must start by

unburdening my conscience

I have a sort of


relationship with them.



I find them VERY frustrating

and sometimes

They are the most engaging people in business I know


Frustrating because often their

Emotional intelligence or EQ

is in inverse proportion to their IQ

Engaging because, when they access their EQ,

there are few more engaged


And in matters of leadership

EQ, for the avoidance of doubt

as lawyers like to say,

is what the partnership debate is about.


Since EQ outstrips IQ in importance

in leadership, therefore

in partnerships, it really matters


I should make clear

at the outset

that I am not a lawyer.


Note I didn’t say I’m a “non-lawyer.”

– that embarrassing ubiquitous misnomer

as if there’s such a thing as a non-doctor –


But I did major in Law

in my business degree

and then I spent most of the next 35 years

working with lawyers


First as an accountant –

and later as a director

in various organisations


And when I set up my leadership consultancy,

over 15 years ago,

I ended up spending

more than HALF my time

working with lawyers of all kinds

because they were experiencing

leadership “issues” at work


In-house, private practice,

public and private sector,

B2C and B2B.


Lots of in-house lawyers

– a key source of partnership fees –

were becoming leaders

because companies twigged that the cheapest

legal services were best provided in-house

and they needed their legal teams led

so in-house lawyers had to learn to lead

in a corporate environment



And because private practice firms

started to realise that the old ways weren’t working,

if not sure why exactly,

they too began to look at leadership issues



So I facilitated leadership programmes

with General Counsel

and their in-house teams

and with private practice managing partners

and their teams and boards


Consequently, I became immersed

in all the key partnership issues

and I also came to know

and understand lawyers as people

human beings

with good days and bad

in one of the few remaining

unreconstructed sectors on the planet


I warmed to the people

and to the subject

gave many talks,

facilitated workshops and off-sites

wrote blogs and articles


However, where I gained the most profound insight

was in the scores of 1-1 sessions

that I facilitated

with lawyers,

young, old and middle-aged



These were often deeply moving

as the person behind the professional mask emerged


So I must know hundreds of lawyers

– which makes me feel like a kind of

David Attenborough of the sector.


Fascinated –

even a bit obsessed

in the fascinated sense

perhaps a bit envious

but not one of them.


And 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 all lawyers,

is that they feel

they have to know





I don’t BLAME them for this.

Society grabbed very bright

young people from university,

put them through law school –

where they force-fed them

an adversarial model,

and more often than not

made them value thinking

over feeling.


After that,

They worked them to death in law firms

Where they had to knuckle down

under the partnership system

where billable hours

were measured to the minute


And, of course, we know that

people tend to deliver only what’s measured


The system required lawyers to be tough,

analytical, unemotional

and fees oriented


And the partnership model was the best Model to support that system. So it thrived.

and to a large extent, it still does

and there was and is, currently

no incentive to change it,



But the problem is that many

lawyers ended up in leadership roles

as Managing Partners

and they design organisational models

and they lead people

in a modern organisational context


And these essential activities

can’t be billed by the hour

yet must be done


And this reality is resisted by some partnerships

which insists that their managing partners bill hours

when they should be on zero hours

because leading is a full-time job


And even those firms which allow their

managing partners zero hours

some experience passive aggressive

carping from some partners

who feel they are feeding freeloaders

and sometimes it’s not so passive aggressive


And these managing partners sit on boards

and take strategic decisions

or contribute to decisions

but when they do so

most do so with the mindset of lawyers



Even they admit

they were not trained to lead

and some I have spoken with

frankly, don’t value leadership skills

as much they value legal skills



So how can we trust their leadership?



The partnership model assumed

that there was NO case to answer in respect

of lawyers’ ability to run their own businesses

in-house or out



Notwithstanding the fact that their legal training

contained little or no leadership training

and the fact that great lawyers are not necessarily great leaders

Tho’ often the best lawyers become leaders.


And of course, lawyers do attend

Management and leadership courses

But they approach these

with a legal mindset, also,

forged in the crucible

of their legal training.


And their training

usually excluded the F-word –


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 they want to win a deal point


But leading people

And designing models and organisational structures

requires a DIFFERENT skillset


It’s more problematic

it’s can’t be reduced

to an analytical problem to solve


It’s a bit

well, ‘touchy-feely”


And the problem is,

leaders can’t lead

and can’t design or redesign

sustainable organisational and leadership models

unless they engage with their feelings

and with other people’s feelings


I’m afraid there’s no way around it.


I know this to be true because of the work

I do with boards


My leadership programme

for main and operating boards

and executive committees

including the work I do with

partnership management boards


is called The Emotionally Intelligent Board


An emotionally intelligent board

applies EQ principles in its decision making

by understanding the inter-dependence

between the personal purpose of board members

AND the purpose of the organisation

AND the purpose of the board in achieving

the objectives of the organisation


As a reminder the core principles

of emotional intelligence are



  1. Empathy


  1. Self-awareness


  1. And an ability to negotiate needs productively


And it’s in the area of negotiating needs productively

that lawyers and managing partners sometimes struggle        


In my view an emotionally intelligent board in a law firm

or any professional services firm

should start planning, if not already,

for the demise of the partnership model




Society and therefore the market

is increasingly saying YES to high EQ in decision-making


Witness the 20% weighting given to ESG factors

in the ranking of the TOP 100 CEOs by Harvard Business Review. And over time this weighting will increase


Or witness the massive increase in impact investment assets

which require nuanced emotionally intelligent decisions

not crude ROI analysis.


And society is saying YES to emotionally intelligent leadership


Witness the hugely positive reaction

to Prime Minister Ardens’ high EQ response

to the atrocity in Christchurch last month



And if society is saying says to high EQ leadership

it’s, therefore, saying yes to high EQ boards


Witness the emphasis on soft issues in

the recently updated corporate governance codes

e.g. FRC and Wates Principles


But the partnership model tends,

more often than not to say

NO to high EQ generally

NO to high EQ leadership specifically

AND NO to high EQ boards consequently


There can be only one logical explanation for this

Lemming-like behaviour

Lawyers suffer from what my Dad used to call

“compound ignorance”

They don’t know what they don’t know


And they don’t know enough about EQ

because it isn’t valued

and the reason it isn’t valued

is because it isn’t measured


Just Google emotional intelligence

or mindfulness or empathy at work


And you will get thousandths of hits

The EQ focus is not a fad

EQ is here to stay

And it embraces #metoo

and gender pay equality


The fads have gone.

They were blown away

By the last corporate scandal.


And the link between corporate scandals

and the demise of the partnership model

is that trust in business is at all time low


And law firm partnerships and their in-house clients

are in danger of being perceived

to be standing by

while that trust is lost,

the partnership model

is seen as part of the problem

not part of the solution


And part of the boiling frog syndrome

is that society will punish lawyers

and all professional service providers

especially auditors


For not protecting them better

against the excesses of the market

and of course, there’s a particular injustice to this

because in-house counsel are frequently bullied by their

employers, put under “elevated ethical pressure”

–   a term used in a 2016 UCL Moral Compass Survey into in-house counsel –


And sadly, the profession

appears not to be creating

an environment in which lawyers can

have each other’s backs


Private practice partnerships are not rushing

To the aid of their in-house comrades

whilst taking their cheques

and The Law Society and SRA

are not geared to help either


Prof. Stephen Mayson in his

current review of the provision

of legal services appears

to be putting the role and purpose of in-house counsel

under the microscope

For good reason


“The Review”, he says “provides an opportunity

to reflect on whether the regulatory provisions that

apply to in-house counsel could be better crafted”


He’s right because sometimes they are forced to play down their responsibility as Officers of the Court

and to “do more for less”

a mad principle if I ever heard one


And yet in-house counsel and out of house lawyers

don’t confront “the business” which feeds them


And in-house counsel don’t have

as I believe they should have their

Office of The Court title

written into their contracts


Their independence is sometimes compromised by

their LTIP and bonus schemes


In-house lawyers have trained the business to get “more for less from them” yet also have trained “the business” to expect high fees from private practice


And this situation is held in place by all


It keeps the partnership model

alive and kicking


Why would anyone do anything

to rock this lovely boat?

Why would plump partnership turkeys

Vote for a new brand of “touchy-feely” Christmas?


It’s, like, market forces,



But ironically, market forces

will make the water boil faster

because the market i.e. society

is getting very fed up

with this mess




they want their lawyers

standing up for the law

they want fewer corporate scandals

and avoidable business collapses




they want business employers to treat lawyers better

and private practice lawyers, especially the younger ones,

to be less stressed


In the current political context

with a vacant political centre

and an extreme left

and extreme right

we need our lawyers

to stand for up

for what people died in trenches for


None died for the billable hour

although, ironically, some lawyers

have died from stress,

alcohol or drug addiction in its service


So those who provide value to society

through organisational models which value

shared purpose above personal wealth

will thrive and those that don’t, including typical legal partnerships, will, ultimately, collapse



I acknowledge that many will disagree with my point of view

However, I take heart from the fact that even academics and

commentators can’t agree



In her book, Leading Professionals, Power, Politics, and Prima Donnas,

Professor Laura Empson

writes that ineffective leadership in partnerships

can be ineffective in three ways


First, they may be a failure “to contain organisational conflict”…


Second “they may avoid conflict

and fail to resolve inherent tension.”


And Third, if some within the partnership live

“within a harmonious cocoon, they may become disconnected from the anxieties of others.”


Yet she writes that “partnership works

in professional organisations because

it is the optimal

method of reconciling

the competing interests

of three sets of stakeholders:


owners, and their clients

thus bringing together and reconciling questions of power, benefit and accountability.”


I’m not so sure this is still the case as much as it was

in the past.


Professor Stephen Mayson

in his review of her book

in Modern Legal Practice

challenges the stability of her four “characteristics of partnerships

“career-long tenure,

close personal relationships,

shared values and mutual trust…”


Given “generational differences and expectations.”

– what some call the millennial problem

a term they hate

as if none of that cohort is unique –


“changing promotion, retention

and reward structures

and increasing geographical

and social diversity are eroding all four of them”.


He adds that “there’s an increasing shift

from the individual to the organisational

and “these challenge autonomy, control,

power, security and performance assessment.”


For “challenge” read

increased temperature around

the frog


But the part of his Review that stuck

the biggest chord with me was

where he writes that

“Increasingly firms are not only

abandoning Partnership as a legal form

but also at best paying lip service

to a partnership culture and

ethos in their structural

and governance arrangements.”


Many factors will contribute to

The destabilization of partnerships


And these are well rehearsed by

commentators like Richard Susskind,

Jordan Furlong and Mitch Kowalski

to mention just three


But it will, in my view, be social factors

that will bring them down.


Indeed Professor Empson

in a very moving BBC Radio 4 Documentary

entitled “Insecure Overachievers”

set out in various interviews the shocking

impact of stress in professional services firms.


And Philip Wood QC,

visiting Professor of Law at Oxford,

wrote in the January 2918 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 religion…it cannot do without its laws”

But it can do without its partnerships.


And, in time, it will.


Thank you