Manchester City Council

Cheshire East Council

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The trouble with in-house lawyers

Most in-house lawyers – whether in the public or commercial sectors – need to change if they are to make a full contribution to their organisation, writes Paul Gilbert.

The in-house lawyer has become a mainstay of the head office support infrastructure. Alongside finance, HR, audit and facilities management, the in-house legal team is part of the predictable fabric of corporate and public sector overhead.

Their value is understood and appreciated in the context of risk management (contracts, deals, terms and conditions) and compliance activity.

However, even today, despite a four-decade track record in the United Kingdom, the value of the in-house lawyer is less well developed in terms of a corporate advisory, policy development and business strategy role.

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Why is this? Why is the potential to make a strategic contribution less well understood and delivered? Why are in-house lawyers not routinely appointed to roles that help to lead growth and success for their organisations? And what needs to change for this to happen?

There is a great deal of diversity in the size and shape of in-house teams. There are a few seriously large teams, many in the largest global behemoths; literally hundreds of in-house lawyers drenched in their own hierarchy and aligned to churning the most predicable legal/commercial activity generated by their businesses.

That said, a great many teams (the vast majority in fact) are small to medium-sized functions characteristically overrun with work, challenged to justify their existence despite prodigious output, but also semi-detached from the frontline activity.

Aspiring to greater things

It seems to be the case, however, that for all in-house lawyers, in whatever size of team, two aspirations are paramount; first, please let there be less low-risk, routine work and second, the Holy Grail-like pursuit of being anointed ‘trusted adviser’.

The quality of people is definitely not the issue. In the past decade especially, the overall standing of the in-house lawyer has risen. It is a credible career path for any lawyer and the talent pool is deeper and broader than ever before.

The skills needed to be successful in business, however, are not good enough. This is a failing of leadership and more generally of the way all lawyers are trained in business skills.

Furthermore the grandees of the in-house world, like the equivalent so-called rain-makers of big law firms, have largely failed to describe how they do what they do in a systematic and replicable way.

Sadly, in many in-house teams one suspects that the only learned behaviour is one of a slight air of indifferent frustration. Lawyers frequently complain about a lack of resource and how their best efforts to create a strategic role for themselves are routinely scuppered by the inefficiency of their colleagues. If only those same colleagues would just listen to their pearls of wisdom dipped in insight and delivered on little velvet cushions of legal brilliance.

In this paper, therefore, the intention is to provide a little tough love. We want lawyers to be able to fulfil their potential and to make the contribution they and their organisations should want them to make. To do so, however, most lawyers must change something; many have to change almost everything.

Taking stock

The starting point for change, harsh as it may seem, is to at least be prepared to analyse whether every single failing is the fault of the in-house lawyer, not of their organisation; whether every single blown ambition is the fault of the in-house lawyer to be credible enough and, finally, to accept that everything the in-house lawyer isn’t, it is for them to fix.

So let us begin by exploding a myth or two.

The phrase ‘trusted adviser’ is a moribund cul-de-sac of conceit. It is a concept that panders to the vanity of lawyers who believe that simply by being present they will somehow excrete value. Their inner Delphic oracle will shine if their ego is polished just a little bit more.

Too many in-house legal teams are dark bottomless pits of inefficiency. Encouraged by faint praise they institutionalise a long-hours culture to manage workload, spectacularly missing the point that their ineffectiveness at managing demand might also have a part to play.

When the brown stuff is hitting the fan:

  • first, turn off the fan;
  • second, insert a large bung;
  • third, clear up the brown stuff.

Instead lawyers tend to opt for requisitioning bigger buckets.

The inability to manage workflow, while often at the same time as persisting in the fool’s pursuit of proactively creating even more demand is another demonstration of cock-eyed thinking. It is as if being ‘proactive’ is an end itself. Being proactive is about as useful an ambition as ordering steak when you have no teeth.

Many in-house teams have simply become inaccessible islands of worthy but strategy-less endeavour. The team never quite adds enough value to warrant investing in, but is never a big enough problem to scrutinise more closely; a sort of no-man’s-land function of uncertain worth nestled somewhere in the mix with IT and facilities management.

Knowing the price of everything

Add in the fact that a great many of the in-house lawyer’s external relationships with law firm suppliers lack governance, rigour and accountability and the picture is not even as positive as I have suggested.

Costs for outsourced work routinely overrun while the basis for pricing many pieces of work is left to after-the-event judgements that, in effect, capitalise supplier ineffectiveness and client side inefficiency.

Inevitably this has resulted directly in the increasing influence of procurement professionals. The in-house lawyer’s response, however, has often been to laughably complain how procurement professionals do not understand the legal market.

Apparently for many in-house lawyers fixed-price certainty is worth sacrificing for the vagaries of hourly billing because, actually, the key to real value is to know the mobile number of the relationship partner should it be needed in the middle of the night. Who knew?

This is beyond parody. It is vanity dressed up as strategy, operational sloppiness cloaked in feeble dark arts; tactical ineptitude coated in a thin veneer of codswallop.

In-house teams are woefully lacking in process discipline and technology support and many seem to treat any centre-driven efficiency initiative as a personal attack on their integrity, designed to undermine their intellectual autonomy.

On demand

In-house lawyers still deliver prodigious amounts of work and are full of admirable people doing great things, but far too much time is spent wallowing in the equivalent glory of a ‘diving one-handed catch’; and far too little time is devoted to thoughtful ‘fielder placement’ that would result in systematic, risk sensitive prioritisation, demand reduction and better knowledge management.

Then there is the sheer extraordinary lack of self-awareness as many in-house lawyers plead to be part of the fabric, but at the same time seek to renegotiate the allocation of office chores.

As Oscar Wilde might have said, it is as if budgets are for people who have predicable lives and objectives are for people who lack imagination. The lawyer should not lower their gaze to tussle with such dull infestation. The lawyer must be free to roam the prairie with the other thundering big beasts, untethered by trifles.

In this brave artifice of a world, however, the lawyer is, frankly, just as deluded when it comes to their own career management. We fully expect in-house lawyers to move roles every three to five years. Each role contributes to the narrative of a successful career journey (or should do) and must exhibit skills development, new experiences and articulate contribution.

Yet so many lawyers embark on haphazard networking, write deathly dull CVs and seem to hold to an institutional arrogance that asserts how time served correlates exactly to a bigger and more valuable contribution. Descartes’ “I think therefore I am” corrupted to become dullard’s “I think therefore I am worth more”.

What must change?

Lawyers need to get over themselves, be present in their roles, seize their moment and build a contribution that has hard edges, clear purpose and adds obvious value to the strategic objectives of the businesses and institutions they work for.

Paul Gilbert is chief executive of LBC Wise Counsel

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