CEOs: 7 reasons why the FRC Code is your unlikely roadmap through COVID-19, even for SMEs

Simon Sinek is unlikely to shout out “Start with the FRC Code”.

You won’t find a Ted Talk titled “FRC – The Cool Code out of COVID City.

Nor will #CorpGov be trending any time soon.

J A Sutherland writing in his book Ensuring General Wisdom: The critical role non-executive directors and trustees play in executive performance says “No-one leaps out of bed in the morning, breathes deeply and cries: “today I am going to govern corporately”.

Let’s face it; the term corporate governance is a bit boring. J A Sutherland believes corporate governance is about good leadership. He’s right.

Amid the COVID-19 pandemic, there’s a secure link between good leadership, good governance and getting your organisation through the crisis and out the other side.

If you’re lost, you need a map. And many CEOs, although they wouldn’t necessarily admit it, are lost as to how to lead their organisations at this time. They need a map. The UK FRC Code on Corporate Governance 2018 is an unlikely map for CEOs, even for SMEs and those organisations not obliged to comply with it. Here are seven reasons why: 

  1. It’s mercifully short at a time when you need brevity: the authors must have followed Churchill’s advice and went through the pain of writing a short document when it would have been much easier to write a long rambling one. It’s only 15 pages long.
  2. It’s clear at a time when you need clarity: the Code is written in plain English favouring sentences with ordinary nouns and verbs, especially the modal verb “should”. You are left in no doubt as to what you should do.
  3. The Code is well structured for your needs during COVID: five sections covering leadership/purpose – yours as CEO and perhaps the urgent need now to reframe your purpose; responsibilities – these may have to change; composition/succession/evaluation – do you have the right people on the bus for this time?; audit/risk/internal control – these three invariably suffer in a crisis and finally remuneration – well, it’s not as if that won’t be top of mind, is it?
  4. Each Section sets out clear Principles at a time when you need to reduce board and team conflict by everyone first signing up to agreed Principles. Arguments when they arise, as they surely will, will be settled faster in the light of these Principles.
  5. Each provision in each Section is practical, actionable and relevant to your organisation’s needs during COVID-19 unless it is evident that a Provision doesn’t apply to your organisation because of its size. There are not many of those.
  6. The Code does not favour a tick-box approach. It is strong on behaviour and a good thing too since your organisation’s survival in this crisis depends on your, and your team’s conduct and the definition of conduct is behaviour over time.
  7. Finally, an excellent set of notes, titled, The FRC Guidance on Board Effectiveness 2018 accompanies the Code. These expand on each Section of the Code with useful lists of questions.

If I were facilitating your next COVID crisis meeting, I would start with three from the first set of questions in the Guidance on Page 4 because the temptation now may be to focus on cutting costs and maximising cash which may be the wrong strategy. These questions would help CEOs and boards stop and reflect in order to agree a new strategy in the light of the pandemic.

  • What proportion of board time is spent on financial performance management versus other matters of strategic importance?
  • How will we assess and measure the impact of our decisions on financial performance, the value for shareholders and the impact on key stakeholders?
  • Are shareholders driving the company to act in a way that is out of line with its purpose, values and wider responsibilities?

Those three simple questions should bring more light and less heat to any crisis discussion at this time.

You can download the Code here: https://www.frc.org.uk/getattachment/88bd8c45-50ea-4841-95b0-d2f4f48069a2/2018-UK-Corporate-Governance-Code-FINAL.pdf

And the Guidance here: https://www.frc.org.uk/getattachment/61232f60-a338-471b-ba5a-bfed25219147/2018-Guidance-on-Board-Effectiveness-FINAL.PDF

Ciarán Fenton

Why CEOs should reset their relationship with their lawyers during COVID-19

The role of lawyers in the day-to-day running of a business is to enable better business decisions through excellent legal counsel and process.

During COVID-19, and in its aftermath, businesses need their lawyers more than ever to reduce risks and maximise innovation in adversity.

Decisions which are taken by CEOs, boards and teams under extreme stress are more prone to error than in normal times; executives at all levels may abandon standard legal processes in favour of shortcuts; communication and consultation suffer.

There is anecdotal evidence that some early stage and rapid growth organisations have decided they “no longer need a General Counsel” relying instead on more junior and potentially more biddable in-house lawyers or more arms-length external law firms; that CEOs and senior executives are not inviting in-house lawyers to crucial meetings and finally that some lawyers are pulling back from their usual habit of checking that their advice is being followed because they feel such probing is not welcomed.

Based on my and other consultants’ experience in working, writing and speaking with and about lawyers and their relationships with CEOs, their boards and teams I suspect that the actual situation is far, far, worse than the anecdotal evidence suggests.

If you are a CEO, you should be worried about the top and emerging risks that this reality presents to your organisation.

The reason I’m so sure that during COVID-19 these risks on your Risk Register, if it’s up to date, are not green, not amber but red for your organisation is that, in normal times, CEOs, boards, teams, lawyers and regulators failed to confront what everyone knew and knows to be true: that the relationship between commercial lawyers and CEOs, boards and teams is broken and has been broken since at least the 1970s in respect of the long-term sustainability of businesses and the interests of society.

This evidence that everyone knows and knew is contained in detailed academic research, surveys and case law. But you don’t need these. Just listen to lawyers’ stories or ask CEOs about the problem as I and others have done. The lawyers’ stories are chilling. If even 10% of what “goes on” were to reach the front pages of the newspapers there would be a public outcry.

Conversely, ask CEOs about the problem as I and others have done and you’ll find them living in a parallel universe with no insight into the danger of their of collusion, conscious or not, with a lie.

The lie is that society believes in good faith that, when push comes to shove, in-house commercial lawyers always act independently of their CEOs, boards and teams if in-house. They don’t. And sometimes out-of-house law firms don’t either.

If a lawyer reports to you as CEO, then you control them. In career terms you effectively own them. That’s what “reporting to” means. It’s not just their pay and rations you control, or their annual reviews and performance scores but their career advancement and sense of personal fulfilment.

And yet your in-house lawyer is an Officer of the Court with powers that no one else in your organisation holds including the power to have a privileged conversation with you and an obligation by their regulator to act independently. The regulator leaves it up to the lawyer “to report anything” which leaves the regulator off the hook.

Think about it for just a minute. How can your lawyer who reports to you act independently of you when it’s as clear as day that they depend on you so much?

Many lawyers will protest that they do stand up to their CEOs as I’m sure they do, but many don’t or feel they can’t and in any event, doing so shouldn’t be exceptional. It should be business as usual. It isn’t.

None of this would matter so much because it’s gone on for more years and would go on more years but for the coronavirus pandemic. This is a game-changer. Normal rules don’t apply.

Just as successive governments failed to prepare for a pandemic, lawyers in-house and out, CEOs, boards, teams and regulators failed to create an environment in which the independence of in-house lawyers is enforceable.

If I were in your position as a COVID-19 CEO, and since you can’t fix this mess created by all parties, I would act now and take three decisions:

  • change your in-house lawyer’s reporting line from you to the board via the Chair. Do it today.
  • ask your board to explain to them how it intends to reframe the organisation’s purpose, strategy and behaviour plan in the light of COVID-19
  • ask, don’t tell them, what legal counsel and process they feel is needed to achieve those outcomes; listen to them; keep them in the room. 

Then get out of their way. 

And if lawyers fail to deliver, they will no longer be able to blame you, as in some part at least, they can blame you now.

Ciarán Fenton

CEOs: How to have a proper bloody row during COVID-19

I’m noticing an increase in boardroom tension since lockdown. Boardrooms are always full of human drama but, based on calls I ‘m receiving, and what I hear on the Zoomvine, COVID-19 is bringing way more heat than light into our C-Suites than usual.

Roughly speaking, the rows are about three issues:

  • the other person isn’t doing want I want them to do
  • the other person is behaving appallingly towards me/others but mainly me
  • the other person “doesn’t get it” meaning they don’t get me 

Does this sound familiar?

What if the other person changed their behaviour because you changed yours? Can you imagine that?

You know, deep down, that even though you want to throttle the other person, you need them; they need you, and the organisation needs both of you at full throttle, as it were, in the service of the people in your organisation at this time of existential risk to get out of this mess.

The cost of an unresolved row between two senior leaders during a crisis is incalculable.

A few years ago at the Hay Festival, I attended a fascinating lecture by historian Antony Beevor about his new book, Arnhem: The Battle For The Bridges, 1944 in which he describes, almost on an hour by hour basis, that devastating defeat. During Q&A, I asked him if there was any evidence about the behaviour of the decision-makers involved in the plan, codenamed Operation Market Garden.

He said that the behaviour that led to decision-making errors was appalling. Nothing that would surprise you or your colleagues: overconfidence, wrong or skewed intelligence, last-minute changes, poor communications and above all, vanity.

As with many boards, dissenting voices were neither encouraged nor heeded. One member of the military team saw the flaws in the plan but was ignored and sidelined, a regular occurrence in business.

I had a sense that the top team were rowing not just about strategy but about bruised or potentially bruised, egos.

I acknowledge that the war context is wholly different in implications than in peacetime business and is not comparable, but the behaviour is identical.

But it’s not just the cost of bad rows at the top that matter, it’s the opportunity cost which can be even higher. According to historians, the failure of Operation Market Garden ended hopes of finishing the war before the end of 1944. A huge opportunity cost of not having a few proper military boardroom rows.

I understand that you may feel that the example is a bit “OTT” for your organisation – that doesn’t happen on your board – but let me give you a sense how I’ve seen this play out with others:

  • the other person on the team or board is not “pulling their weight”
  • the other person “is taking dangerous risks”
  • the other person “is impossible to work with and they’re getting worse”

What if there was a way through this? What if it were possible to have a “proper row,” i.e. one where tough stuff gets said, but the outcome is productive? What if this angst which is keeping you, or if not you, someone else awake at night could somehow go away so that you all could get stuff done?

What might that process look like?

  • You and the other person would be on the same page on your objectives…
  • …on the same page on the approach to achieve those objectives…
  • and on the same page as to how everyone should behave in getting there

In theory at least, would that not mean that any disagreement could be sorted in the light of these three steps?

In theory, yes, but how can this be put into practice without the exchange going totally off the rails and ending in disaster?

My solution is to have a proper bloody row. By proper, I mean one that ends productively. By bloody I mean – no holds barred in terms of expressing how strongly you feel. By row, I mean a robust exchange of views on a matter of shared interest. Here are the steps I use in advising clients who ask how they should confront the other person:

Step 1. Meet or Zoom the other person. Do not; repeat do not write an email to them. You cannot have a proper bloody row by email. You’re not Tolstoy.

Step 2. Ask them if they still agree with, what I call, the PSB of the business: its current purpose, strategy and behaviour. Frequently I find that there are unaddressed or unresolved differences of opinion, particularly on purpose and strategy, which are the underlying causes of many rows. No team or board can achieve success unless they have a shared purpose and shared strategy. If one person wants to get rich at all costs and another sees money merely as a collateral benefit of providing a product or service that they love, then they don’t have a shared purpose, can’t have a shared strategy and rows are inevitable. It’s clear from Antony Beevor that the generals and politicians didn’t exactly have a shared purpose. Their project was doomed from the start.

Step 3. Provided only that you are on the same page as to purpose and strategy and if you are not do not, repeat do not, move to Step 3 which is the bloody bit and that I mean that you tell the other person in no uncertain terms how you feel. I don’t mean how you feel about them; I mean how you feel concerning the impact of the other’s behaviour on the already agreed shared purpose and strategy. This is part of a FEEL/NEED/DO approach that many experts, including Marshall Rosenberg in his book Non-Violent Communication recommend. You can’t go wrong if you start the sentence with the word “I”, and not “you”. As in “I feel anxious about how we are going to get through COVID-19; we need all hands on deck to get through it and achieve what we all agreed at the last board meeting, and I feel that you are distracted and doing other things and we need you fully on board, and I feel you’re not. I’ll be honest. I often feel furious about that, but more importantly, I’m very worried about the business. ” Full stop. Don’t be tempted to use the word “frankly” which will emphasise your anger. While you can honour your anger, it’s best to focus on your anxiety as it is a deeper truth than your anger and the other person is more likely to listen to your concerns.

Step 4. Shut up. Don’t speak. Stay silent. This is key. Let the other person speak. Do not interrupt them.

Step 5. Continue to use FEEL/NEED/DO and link it with organisational PSB no matter what they say. For example, you find they say that “…fair comment I am up to my eyes with other stuff…” in which case you can move on to Step 6 or they might say “…I don’t accept that, how would you know what I’m doing…you never call me except to moan…how dare you traduce me…” or they might say something else. The key point is that you don’t know what they feel until they tell you and if you attack them, why would they tell you anything? And you might learn something new. And you might find as is usually the case that there are two sides to the row and you may be part of the problem. If you are: own it. Use FEEL/NEED/DO in response to everything they say and you won’t go wrong.

Step 6. Agree a “soft contract” on future behaviour in the light of shared PSB and what you both have learned from the exchange as in: “I have agreed to check in with you more often, and you have agreed to be more present”.

Step 7. Legislate for the breach. Being human, each of you will breach your soft contract. Agree in advance how to call out that breach. People vary in how they like to be told off. Some can’t bear confrontation in a group so tell them in a 1-1 meeting. Avoid shaming at all costs.

This approach works with most clients, but some say: “…those steps sound great but won’t work in our case because X is a total psychopath”.

To that I say:

  • if you’re so sure they’re that bad, then leave
  • or why not try it. I know from experience that if you change your behaviour, you will notice a least some shift in theirs
  • finally, how do you know you are not part of the problem unless you ask?

How?

Ciarán Fenton

CEOs: forget “recovery”; instead: reframe, reset, & relaunch

Picture source: https://service.snom.com/display

Everyone is talking about the ‘new normal” meaning that “things” will never be the same again and we’ll have to bally well get used to it. 

Yet the same commentators talk of recovery and reopening as if it will merely be a case of removing dust sheets and shutters and opening the doors to unchanged customers as if nothing fundamental has changed. 

It has. 

Ignore the screams from the right that “No, No, No! The business bail-out is not the S – Word” but a proper intervention by right-wing governments to protect capitalism. 

Ignore the counter-screams from the left that they were right (sic) all along; that the scale of the furlough system is proof as if proof were needed. 

Neither is true. 

The future belongs to the political centre, and no one will return to work unchanged by an experience which matches any of the significant milestones in history, in impact if not in scale. 

The reason is one word: terror. 

As Nick Cohen wrote in The Observer (May 16, 2020):

“…surely the reason why the British and so many other populations are obedient is that they are terrified. The only way the authorities can begin to clear up the mess they have made of this crisis is by understanding our fears and showing us how to improvise ways round them. Unfortunately, they show no sign of doing it.”

People will have a different response to the pandemic than they had after the 2008 Crash – terror, not relief.

But notably, the nascent CSR, “purpose” and ESG movements flourished after the Crash. A sign of things to come. 

Cynics will point to the fact that, as The Banking Standards Board grimly reports annually, behaviour in the financial services sector has changed little since the Crash and that after we settle back to work behaviour will return to the old normal. 

CEOs: you should avoid this thinking trap and believe that at least one component if not all of your target operating model will be redundant post-COVID-19.

Your operating model before the pandemic identified market needs, assembled strategic resources to address those needs and then applied your internal processes to apply resources to meet those market needs. 

But even if consumers and business services buyers appear to want the same products and services as before they will undoubtedly want changes to them or in their delivery or both, because of changes to their buying needs and expectations driven by their pandemic experiences.

Even if you continue to use, broadly, the same inputs to your products and services as before, one of these will have changed irrevocably: and that is the mood of”your” people. 

“Your people” will be terrified of the virus spiking again, terrified of economic uncertainty and most of all terrified by incompetent politicians and bosses.  

They will be terrified that you, their CEO, isn’t up to the job in these new circumstances. They will be afraid that you possess neither the EQ nor the IQ required to create a safe and sustainable environment for them, never mind the usual purpose of leadership which is to create an environment in which they can thrive. 

That’s out the window now, for the moment.

Friedman is out, and Maslow is back. You can forget “maximising shareholder” value because the people you need to do that started to abandon that philosophy after the Crash, and COVID-19 consigns it to the dustbin of economic history. 

For sure many employees will pay lip-service to ROI because they have to, just as many employers paid lip service to ESG for the same reason.

If you think fear of losing their jobs will drive compliance – think again, for people will undoubtedly comply to keep their jobs, but they won’t go that extra mile you desperately need to “recover”” as you might put it.

So no, your business will never “recover” because it will never be the same again. It can’t. 

Forget recovery and reopening, instead reframe, reset and relaunch your business. 

Return your business to its “factory settings”. Bin your pre-COVID-19 business plan. Tell your CFO not to produce a re-forecast but to draw up new revenue and cost budgets based on the output of a series of meetings with all your people, your management team and your main board, if you have one to address the following questions:

⁃ what should our purpose be now?

⁃ what strategy should we use to achieve it?

⁃ what behaviour should we employ to implement our new strategy?

If as CEO, you go to a clean page and acknowledge changed market needs, changed employee needs and changed society needs post COVID-19 you’re in with a chance. 

Pretend nothing has changed, fundamentally, and you risk decline. 

As WB Yeats in different circumstances, A Terrible Beauty is Born. 

COVID-19 CEOs: “resilience” isn’t code for “suck it up”

Picture from consulting firm’s EY’s website: EY: Ten ways to enhance firmwide resilience

Here we go again – another crisis another “in-word”.

After a previous crisis the word ” engagement” which, by the way, was code for you engaging with us, not the other way around – was all the rage.

Now it’s “resilience”.

You can’t turn a page, scan an online newspaper or website without the R-word screaming at you. And I don’t mean that other R-word, the virus reproduction rate, I mean “resilience”.

To be fair, most writers use of the word is well intentioned.

For example, if you Google “resilience”, first up on my browser at least, after the adverts – and all credit to their SEO people – is Deloitte with:

Combating COVID-19 with resilience: Leaders like you are responding to one of the most sweeping crises in recent memory, calling for both empathy and action to guide your people and businesses through uncertain times. This page gathers Deloitte’s global insights to help you not only respond to this crisis, but recover and thrive.

https://www2.deloitte.com/global/en/pages/about-deloitte/topics/combating-covid-19-with-resilience.html

I’m sure Deloitte didn’t mean that it had found a cure for coronavirus, which a literal interpretation of its headline, but that resilience will help your business “recover and thrive” by guiding your people with “empathy and action”.

What’s wrong with that, you ask? Isn’t Deloitte’s purpose to sell consulting services and are they not merely demonstrating how much they are in touch with the zeitgeist and needs of their clients?

Boston Consulting Group takes a similar approach. Its website on the subject says:

How Mindfulness Can Boost Our Adaptive Resilience to COVID-19: COVID-19 is having dramatic impacts on our world. While the coronavirus inflicts damage on health, society, and the economy, it also exerts a strong emotional impact on individuals…If we let ourselves be hijacked by what we classically call negative emotions, we risk reacting blindly and impulsively.

https://www.bcg.com/en-gb/perspectives/244889

Similarly EY notes in its “Ten ways to enhance firmwide resilience”:

10.   Promote a learning, resilient culture In the end, resilience is about having the organizational discipline and nimbleness to develop — and constantly enhance — the firm’s plans and capabilities to deliver services continuously. This requires a culture that is open to learning from past mistakes and events — those of the firm and its peers — and that promotes timely and effective remedial and enhancement activities. This focuses attention on changing human behaviors — making employees appreciate their important role because resilience is very much in their hands. It is not someone else’s job. If successful, this creates the necessary conditions for a resilient culture.

https://www.ey.com/en_us/financial-services/ten-ways-to-enhance-firmwide-resilience

Is EY wrong?

No. Of course not. All three world leading management consultancies are making what they feel are valid points.

My concern is the danger that the underlying purpose of the focus of consultants and CEO’s on resilience will shift quickly from people’s needs to business needs, exclusively.

There are hints of this in the extracts above. EY gets to people and culture in detail only in their last point, Point 10. The earlier nine “ways” are great but they are mainly about business process. BCG’s excellent article feels it necessary to use a metric, presumably because they feel they must: “The 31 teams that participated in a ten-week mindfulness program showed an average 13% increase in their collective intelligence.” One has to wonder about the value of that metric. And Deloitte is quick to point out that leadership focus should expand from a “very inward (and entirely appropriate) focus on employee safety and operational continuity to also include embracing a return to a market-facing posture”. Note the brackets.

The dictionary definition of resilience is:

“the ability to be happy, successful, etc. again after something difficult or bad has happened”

https://dictionary.cambridge.org/dictionary/english/resilience

It’s a noun. The verbs used with it give it force. In the extracts above we have Deloitte “combatting with…resilience” and BCG “boosting with resilience” and EY abandons the noun altogether and uses the adjective form as in a “resilient culture”.

This use of language assumes that everyone has the same ability to recover. It’s as if resilience is a bench-markable thing that anyone can achieve with the right processes. A bit like “engagement”. And look how long that fad lasted.

If your purpose is to build a resilient culture after COVID-19 I’m afraid you’re a bit late to the party. Now is not the time to be building a “resilient” culture that recovers when a crisis happens. It’s too late, mate. The crisis has happened. The horse has bolted.

Those organisations who invested time and money in building kind cultures where people learned to be kind to themselves and kind to each other – these are the organisations that will recover faster.

The “resilience” fad will be shorter lived than the engagement nonsense because some CEOs will quickly become frustrated and resilience will become code for “suck it up…get your act together…and if you can’t we can find people who will” thereby wiping out any incentive for their people to give the discretionary effort absolutely required for organisations to recover and the use of the word resilience will be seen for what it is.

And no money will buy that discretionary effort.

What’s needed is not resilience but kindness in helping people to recover from a trauma. And if you think that’s a bit wet, go ahead, see how much “discretionary effort” you get from bullying already scared people.

So, CEOs:

  • take your time
  • acknowledge that people have different rates of personal recovery. Help them. One size doesn’t fit all.
  • and be kind, for kindness sake.

Then and only then will you have a chance of recovering from this crisis and building a resilient culture for the next.

Ciarán Fenton

Why #COVID19CEOs should remember Chilcot’s criticism of “sofa style” decision-making

Chilcot report pic

When The Chilcot Report into the Iraq Inavsion was published in November 2016 The Guardian newspaper reported that:

“…Giving evidence to a parliamentary committee, Chilcot said “sofa government”, in which ministers were not consulted on crucial decisions, reached a high point …on several occasions between 2002 and 2007 “things were decided without reference to cabinet”.

https://www.theguardian.com/politics/2016/nov/02/tony-blair-psychological-dominance-key-in-uk-joining-iraq-war-says-chilcot

The rights and wrongs of the Iraq invasion or the strengths and weaknesses of Mr Blair are not my focus here. How decisions are made by what I call COVID19 CEOs – those CEOs unlucky enough to be in charge during and after the COVID-19 crisis – is.

Andrew Hill at the time of the report observed in the Financial Times:

“…What does this report tell us? The same old corporate and political story of how an excess of certitude at the top can lead to catastrophe…If chief executives know little else, they know they have to take decisions… The report advocates wider and deeper discussion in cabinet and committees, separation of risk assessments from policy decisions, and independent audit of strategy as it is implemented — all good advice for CEOs considering important strategic moves… It casts doubt, for example, on Mr Blair’s predilection for sofa-style government…where many leaders draw strength and advice from an inner circle…The sofa where a few intimates discussed strategy was exceedingly comfy…Mr Blair seems to have had a strong need for “cognitive closure” — an instinct to “make a judgment and then stick with it” — described in Charles Duhigg’s book Smarter Faster Better. Many successful decision makers eventually over-reach.”

https://www.ft.com/content/8465df96-44e6-11e6-9b66-0712b3873ae1

So, The Chilcot Inquiry criticism of “sofa” style decision-making is a grim reminder of the importance of good corporate governance that encourages challenge by dissenters. But how many leaders are emotionally equipped to encourage this?

I recall, as a young divisional managing director, and a member of a group Executive Committee being told by an old hand who whispered to me at my first meeting “you can always tell who the new people are at ExCom meetings”. “How’s that”, I asked.  “They’re smiling” he said. “They sure as hell stop smiling after their first public slap” as I learned for myself, painfully,  in due course.

So, what’s to be done by you, you COVID19 CEOS?

Leadership101 is my answer:

How about old fashioned meetings with an agenda, motions, pros and cons discussions, permission to have “Devil’s Advocates” in the room, votes or, at least, shows of hands and above all, Minutes written after, and not drafted before, the meeting?

The problem is that the very personality traits that propel some leaders to the top, including you, are the ones which will prevent them from changing behaviour  to accommodate dissent.  But there is a chink of light here: apart form utter psychopaths – and I acknowledge that a few of these stalk the corridors of corporate power – most dysfunctional leaders are merely playing out, as the experts tell us, behaviour patterns established in their formative years.

So, if they – you – can be brought to see that even small changes in behaviour – e.g. listening to a contrary view just 10 times more out of every hundred interactions – that’s only 10% behavioural change, this can lead to improved outcomes for them – for you – as an incentive to change.

But we must face these issues now in the thick of COVID-19 since, as day follows night, there will be a COVID Chilcot-type Inquiry. Already we are getting some insights into the horrors that the report may contain.

Imagine there’s going be a Chilcot-type inquiry into your behaviour as CEO during COVID-19. How will you emerge from that?

You can decide today. Either behave as you usually do and you will almost certainly err, or stretch your behaviour during these stressful times and do what athletes do – strive for peak performance.

But you don’t have to suffer half as much as athletes do, just listen to others before you make decisions. How much can that hurt?

Andrew Hill puts it well in his FT piece:

“The test of their greatness is how willing they are to consider the alternatives to what may appear a clear course of action before making a bold executive order. Duhigg tells the cautionary tale of the Israeli general Eli Zeira, who failed to spot the imminent Yom Kippur war of 1973. Years later, the ex-officer admitted that, before making his fateful decisions, he should have referred to a talismanic note he carried. On it were written three words: “And if not?””

Ciarán

COVID-19 crisis: should you oust your narcissistic CEO now?

Nick Cohen’s piece three years ago in The Observer (Jan 5, 2017) was mainly about Mr Trump but, to my mind, it was also one of the best general essays on leadership I have read and remains highly relevant.

A flavour of the piece:

“No one in the West has seen Trump’s kind of triumph…But look around your workplace…little Hitlers…They exhibit all the symptoms of narcissistic personality disorder…less likely to engage in the hard work of innovating…”

Nick Cohen The Observer (Jan 5, 2017)

His premise was that “compulsive liars can create compulsive believers”. Their peers “believe the stories,” these leaders tell about themselves.

“People are on a continuum — there’s a range of narcissism,” W. Keith Campbell, Ph.D., head of the Department of Psychology at the University of Georgia and co-author of The Narcissism Epidemic: Living in the Age of Entitlement, explained in a HuffPost piece. “Most people are sort of in the middle, though some are more extreme than others.”

Zlatan Krizan, Ph.D., an associate professor in the Department of Psychology at Iowa State University in the same HuffPost article says” “If you do something to [the narcissist] that he doesn’t like, it means you’re against him, or you don’t understand him”.

But what do you do if your current CEO is an extreme narcissist and is the worst type of leader in a crisis?

I propose three steps:

Step 1: Frame any challenge to your CEO in the context of a wider purpose: “Do you still agree that our organisational purpose is x and our strategy for achieving it is y and our plan for implementing that strategy is z as already agreed by the Board?”

They can’t refute this, unless they are proposing a change and in which case that change must be approved by the board or if they are bloody minded they will obfuscate and in which case they’ve got to go, or you’ve got to go, especially in a crisis.

Step 2: “So, do you agree that our behaviour, in broad terms, to implement x, y & z should reduce risks and maximise the opportunity of achieving that outcome?”

If you keep your description of the desired behaviour unthreatening in tone, they are likely to agree, and if they don’t, then you can legitimately challenge their logic.

Step 3: This is the tricky step: “Since you agree to the behaviour we need to achieve our goals can you see why those of us, including you, who behave contrary to that agreed target operating model need to amend that behaviour?” The use of the term target operating model may help as it’s a well known model which encompasses behaviour but you feel its use will irritate your CEO, don’t use it.


I acknowledge that these steps are like walking on eggshells but many people I meet working with extremely narcissistic CEOs spend most of their time doing precisely that already that so why not walk on egg shells with a better purpose?

But I agree, it’s no way to live.

Nick Cohen believes that the solution to dealing with narcissistic people is to work hard on converting the people who support them. Once they are starved of that attention only the seriously ill will resist.

And in that instance, you have a choice to quit and find someone less damaged with whom you can work and find fulfilment or, in a crisis, you may need to oust your CEO before they bring everything down.

But what if your are “the CEO” in a crisis and you are as, Dr. Campbell believes, “somewhere in the middle” of the narcissistic scale like the rest of us and not at the extreme end then you should confront this behaviour in yourself first, then help your top team do the same and then agree a new shared purpose, strategy and behaviour plan.

Do it today or you may find that you are ousted, unfairly.

Ciarán Fenton

For more information on my programmes for CEOs please email me at cfenton@ciaranfenton.com

IN-HOUSE TOM: SECTION 3.7 Trend 7 #lawyersbacks: a growing minority of lawyers are starting to, counter-intuitively, “have each others backs”

I’m writing a book with the working title: IN-HOUSE TOM: a new model for the law department, law firm & C-Suite relationship – initially as a series of blogs.

You can follow the full index of the blogs as they build here: IN-HOUSE TOM: INDEX

IIN-HOUSE TOM: SECTION 3.7 Trend 7 #lawyersbacks: a growing minority of lawyers are starting to, counter-intuitively, “have each others backs”

The seventh, of seven trends, against which background in-house counsel must run their target operating models is that slowly and with maddening caution a growing minority of lawyers are starting to challenge the status quo and “have each others backs”.

The status quo, which I set out in detail earlier, can be summarised as the dysfunctional behaviour which most lawyers and non-lawyers acknowledge is prevalent in the relationship between law departments, law firm and the C-Suite.

While I say “most”, based on my anecdotal experiences over 15 years, I acknowledge that not all lawyers agree, are more than happy with the status quo and indeed a few have exhibited, what might be called in the animal kingdom, hostile noises towards me and others on these issues.

Those at the top of the profession, in-house and out, have no incentive to rock the boat. Why would they?

Even for those of their number who challenge the status quo the response can be negative. For example there was a furious response from some GCs when the UCL Centre for Ethics and Law in 2016 published its Mapping the Moral Compass Report in 2016 in which set out four categories of in-house lawyer:

  • the capitulators
  • the coasters
  • the comfortably numb
  • the champions

That list chimes with my experience of working with hundreds of in-house lawyers over many years.

“The Coasters”, the report said “…was the largest group by some distance…They had moderately low levels of perceptual moral attentiveness but moderately high reflective moral attentiveness…we speculate that this group is not yet being tested or testing itself in ethical terms”.

I see a correlation between in-house “Coasters” behaviour in relation to in-house ethics and their attitude to the ethics of the current house status-quo: they’re keeping their heads down.

But over recent years I have noticed three developments which suggest that there’s a growing minority getting ready to be ready to be ready (sic) to speak out:

  • The success of the #MeToo movement is encouraging more lawyers to believe that deeply embedded behaviour can be challenged successfully
  • More lawyers are becoming more and more comfortable airing their views about the dysfunctionality of the profession on social media
  • In-house lawyers who have been brutalised by “the business” are more willing to speak up, and help each other – at least in private. The recent outing of NDAs as instruments of mental torture has helped. In 2019 I ran a six month trial, which I called #lawyersbacks, to create a safe place for lawyers, in-house and out, to talk about their shocking experiences. The trial proved that a) there is a need for such support b) the support needed doesn’t exist currently c) the problems are systemic.

This delicate growth – against all their adversarial legal training instincts – of the value of helping each other, with the help of one or two high profile high EQ law firms and ESG-oriented C-Suites, will be the key to “disruption”in the legal profession, worldwide.

Once the numbers reach its tipping point – change, which has been gradual, will be sudden.

Watch this space.

Ciaran Fenton

IN-HOUSE TOM: SECTION 3.6 Trend 6 The well-being of lawyers remains a low priority; society pays a high price

I’m writing a book with the working title: IN-HOUSE TOM: a new model for the law department, law firm & C-Suite relationship – initially as a series of blogs.

You can follow the full index of the blogs as they build here: IN-HOUSE TOM: INDEX

IN-HOUSE TOM: SECTION 3.6 Trend 6 The well-being of lawyers remains a low priority; society pays a high price

The sixth, of seven trends, against which background in-house counsel must run their target operating models is the fact that the well-being of lawyers, in-house and out, remains a low priority and society – which includes the legal profession, business and “the public” – continues to a pay a very high price indeed.

Paul Gilbert, CEO LBC Wise Counsel wrote in A report on the well-being of in-house lawyers (LBC Wise Counsel July 2015 p.3) “The ‘Crisis of well-being” article that I wrote in March 2014 and is republished in this report, had a very significant response…[that] spurred LBC Wise Counsel to conduct a survey…[which shows] a shocking picture…If these were physical injuries caused by machines in factories the businesses concerned would be shut down and directors prosecuted…It is unacceptable to inflict such harm and inexcusable to let it continue…Before it gets any worse worse we must act and act now”.

I have witnessed little evidence of sustainable action.

Horacio Bernardes Neto, President, International Bar Association wrote in Us Too? Bullying and Sexual Harassment in the Legal Profession (IBA May 2019) “…bullying and sexual harassment are widespread in legal workplaces. Some of us have experienced it ourselves. Many of us have witnessed it. Others have heard about it from colleagues. However, the plural of anecdote is not data. For the first time at a global level, this research provides quantitative confirmation that bullying and sexual harassment are endemic in the legal profession.”

The #MeToo campaign is making progress because people are working together for a shared purpose but the system which underpins the behaviour has changed not a jot, barring a few isolated exceptions.

One of the most revealing analyses of this stasis was provided by Professor Laura Empson, Director of the Centre for Professional Service Firms at Cass Business School, London, and a Senior Research Fellow at Harvard Law School’s Center on the Legal Profession in her BBC Radio 4 documentary (September 2018), available on BBC iPlayer.

Professor Empson told us nothing new and everything new.

We knew that the stress levels in professional services – and in legal services in particular – are unsustainable. I have seen it at close quarters over 15 years working with lawyers as leaders. Professor Empson’s stories and interviews are genuinely shocking, but won’t surprise any listener who knows that world.

What was new about Professor Empson’s programme was that she has moved the debate on, significantly, by tapping into the growing tolerance in the world of work for people making themselves vulnerable.

Moreover, what was riveting about this programme is that she – a former investment banker and strategy consultant turned academic – is a self-confessed “insecure overachiever” and speaks openly about her struggle.

And she manages to persuade “big names” in professional services to speak openly, frankly, and movingly about their experiences.

One story stands out: the managing partner who changed his shirt five times and pill-popped headache tablets all day due to the stress of an annual partners conference, who knew that he was perceived as cool but was dying inside.

Professor Empson’s engagement with vulnerability – her own and others – is new and part of a growing trend.

Several years ago, Richard Given – a client GC in the UK with extensive team leadership experience – gave me a copy of Brené Brown’s  Daring Greatly, a book which explains how the courage to be vulnerable works and dispels the myth that it’s a weakness and her Ted Talk is, rightly, in the Top Ten. In the spirit of the book, Richard spoke openly and refreshingly to everyone about his own tendency to overachieve.

Stephen Fry, Alasdair Campbell, and Ed Balls – all high profile figures in the UK – dared to speak openly about their issues. Paul Gilbert, a former GC and leader of UK’s foremost leadership programme for in-house counsel, has written for many years about the problem of stress in the profession and, movingly, about his own experiences.

The courage of Prof Empson and these people to speak out does us all an excellent service. It has an impact much more significant than perhaps some realise. It gives others permission to do so too. I now speak openly to my clients about my own experiences, and they theirs. Our shared work is enriched.

The arguments from interviewees in the programme who argued against vulnerability were as chilling as they were predictable: “if-you-can’t-hack-it-get-out…and “slavery was abolished…no one is forcing you to do it….and clients expect it…”

The problem with these arguments is that although factually they assume that everyone will persist with what Yuval Noah Harari calls in Sapiens the current “shared fiction” of the purpose of work in general, and the purpose of professional services in particular. Once we decide to change our shared purpose, all bets are off for the manipulators of “insecure overachievers”.

However, it hasn’t yet happened. And that explains, in part, the mystery of mostly zero disruption in legal services. There won’t be any substantive disruption in legal services, apart from technology-enabled change,  unless and until more lawyers accept that vulnerability isn’t a weakness.

One step that might help this process, not addressed in Professor Empson’s programme but hopefully in a sequel, is an examination of what in their formative years has led to them becoming “insecure overachievers”.

This one aspect of the program left me a little troubled. I’m uncomfortable with the coining of another new label – “insecure overachiever” – which some lawyers will use to self-flagellate and others as another secret elite badge of honour. I don’t believe this issue can be addressed without looking at the full arc of one’s life.

Professor Empson’s says in her closing words that although the feelings may diminish they “never go away…make your peace with them…recognise that you can be manipulated…channel it for you and not against you…your deepest fears may drive your wildest dreams.”

I don’t see it this way. For me, It’s not about making peace with the feelings or channelling them. It’s about making peace with their origin. Understanding what drove early overachieving decisions in your life and making a new decision. William Glasser calls this Decision and ReDecison.

Professor Empson asks frequently in the programme  – “who’s to blame?”

“Who?”, indeed. A great question.

Ciarán Fenton

IN-HOUSE TOM: SECTION 3.5 Trend 5 The “turf war” between Compliance and Legal is escalating, especially in rapid growth businesses

I’m writing a book with the working title: IN-HOUSE TOM: a new model for the law department, law firm & C-Suite relationship – initially as a series of blogs.

You can follow the full index of the blogs as they build here: IN-HOUSE TOM: INDEX

IN-HOUSE TOM: SECTION 3.5 Trend 5 The “turf war” between Compliance and Legal is escalating, especially in rapid growth businesses, where these are separate

The fifth, of seven trends, against which background in-house counsel must run their target operating models is the escalating turf wars between the Compliance function and Legal function where these are separate.

Over many years I have witnessed in my work with in-house teams avoidable problems caused by this separation, particularly in rapid growth contexts where revenue pressures can create a culture “to keep Legal out of Compliance”.

According to an article, The compliance function at an inflection point published by McKinsey in January 2019 (Insights) “…The 2008 financial crisis brought compliance into sharp focus. At financial institutions worldwide, failures related to compliance led to fines and losses topping $300 billion in the ensuing years—damage approaching the proportions of crisis-induced credit losses. Compliance woes have not gone away since: recent McKinsey research indicates that most senior managers feel more comfortable with their credit-risk management than with their control of compliance risk. The reason for the discomfort is the inchoate state of compliance standards. Best practices for compliance risk are still emerging, few agree on the most effective organizational approach, and business ownership of compliance risk is weak.”

The article’s reference to the lack of agreement “on the most effective organisational approach” is the heart of the matter.

This is a serious matter and the problem is not new or unknown to all concerned.

The problem is further complicated by the fact that, apart from issues around compliance by organisations with laws generally referenced above, there are serious and unresolved matters regarding compliance by in-house solicitors with their regulator.

Moorhead, Vaughan and Godhino wrote in In-House Lawyer’s Ethics – Institutional Logics, Legal Risk and the Tournament of Influence (Hart Publishing 2019 p.226) “…Entity regulation is applicable only to law firms, Alternative Business Structures…and those working inside the law firms…Even where a business might employ more than 1,000 in-housers, each solicitor in that team is regulated as an individual and there is no entity-based regulation…What this means is that in-house teams are not required to have the same systems and processes in place as a law firm or ABSs for managing compliance and reporting breaches: in particular they will not have a mandated COLP [Compliance Officer for Legal Practice]…ethical challenges pose risks that organisations are poorly placed to deal with, where the organisations themselves are the source of that ethical risk…it is probably most accurate to say that the distinctively different approach to in-house practice in the current Code is as much historical accident as it is a clearly thought-through policy position”.

And so the origins of the current compliance mess – and it is a mess – is a function of confusion.

Confusion because, as McKinsey points out in its article “the more recent view of compliance as a risk rather than a legal obligation…business ownership of compliance is still lacking”.

Confusion leads to matters missed because in-house lawyers who feel they should be “across compliance” are sometimes shut out of compliance issues as none of their business.

Moorhead et al sum it up well:

“Weigh the harms caused by SCB’s wire-stripping, or Rolls-Royce’s corruption, against the more standard fare of SRA enforcement (solicitors taking client money, misleading the court), and we are hard pushed to see that in-house practice is low risk.”

Weigh the harms, indeed.

I suspect that in the aftermath of COVID-19, during which decisions were taken which may later prove to be questionable but were not questioned.

Society will be less forgiving after COVID-19 of in-house lawyers and their regulators than they were after the 2008 Crash.

“Where were the lawyers and their regulators?” will be a question asked much more stridently and insistently.

“Where?”.