As a consultant spending most of my professional time working with general counsel (GCs), so concerned have I become at the pressures and strain on the mental health of in-house counsel, that this summer I authored a report on what I see as the crisis in well-being in-house.
In this article I won’t repeat those concerns – nor dwell on how poorly I believe some GCs are addressing the issue – but I will try to identify the root causes of the problems I have found and some simple steps to rectify them.
The challenges many in-house teams face are evident in every walk of life; I am not special pleading for in-house lawyers only pointing out what I see in my work.
The problems have their root in a fundamental identity crisis. This is not an existential issue; it is simply the answer to this question: ‘What is the point of having a lawyer on the payroll?’
The question is rarely answered directly and is often not answered at all. The problems then flow thick and fast. I believe the following tables encapsulate the issues arising (see bottom).
If I am right, however, this is seemingly at odds with the perception of the industry that sees a year-on-year increase in the number of in-house lawyers; and if I am right, why are so many in-house lawyers seemingly highly regarded?
The blunt truth of why there are so many in-house lawyers is that law firms are still far too expensive and are perceived to be slow and inefficient. Go to most law firms and everything can feel bespoke, when every instinct in the business is to buy expediency.
Against this backdrop, an in-house lawyer, in the eyes of the business, is at least cheaper, present and potentially more biddable.
As for why so many in-house lawyers are well regarded, the answer is more complex, but still easy to understand. In-house lawyers are brilliant at digging people out of holes. Whatever the business wants from its lawyers it is nevertheless employing well-trained creative problem-solvers with a strong sense of duty and a great work ethic.
When the business drops the ball, the in-house lawyer will often pull off a blinding diving catch. The problem is that when the immediate and heartfelt gratitude of the business subsides (usually the next day) the business reverts to type and wants the same low-key intervention it has always wanted.
These factors set up essentially destructive behaviours that have an inevitable downward spiral (see below).
The poor behaviours of the business
There is little or no investment in the legal team, because the legal team show no appetite or expertise in process design. The odd ‘diving catch’ is appreciated, but in-between heroic fielding the low-level criticism is easier than addressing the shortfall of expertise needed to design and implement better processes.
Invariably the consequences of mistakes by the business are not realised (because of the diving catches) and this masks the need for the business to adapt and change.
Poor process is entrenched, poor behaviours are tolerated. An unspoken reliance on the lawyers to dig them out of trouble therefore permeates and complacency sets in.
The poor behaviours of the lawyers
The legal team is a team in name only. In reality it is individual contribution that motivates the majority of lawyers. As a result essentially self-serving individual internal networks are set up to validate their individual contribution.
This validation is usually received after the lawyer has helped in a crisis. Meanwhile, the lawyer may grumble they do not address the tough issues of why there was a crisis in the first place because it risks undermining relationships and the source of their validation.
As a result lawyers are left frustrated by the volume of low-risk work (which they have failed to address through training, policy and process) and then work ridiculous hours to overcome the inevitable, but validating crises.
So far so bad, but this is then significantly and critically exposed further by clichéd and lazy leadership, for example in the mantra that we must do ‘more with less’. Leadership by sound-bite ignores underlying failings and heaps cliché onto inefficiency.
The mindset of the in-house legal team is to undervalue process, but to do more for less needs training, policy and process to be priorities. It is a solution in-house teams are ill-equipped to deliver.
Even worse than this, in-house teams are sceptical (I believe borne of their lack of insight and confidence) that external suppliers have the solution either. The in-house teams are stuck in a cycle that does not admit their weakness and therefore over-asserts their strengths. The only way teams can do more-for-less is to work longer and continue to pull off the diving catches that have previously validated their roles.
In-house legal teams are suffocating on volumes of work they are not designed to handle, with a role that the business does not value enough and without the skills or the confidence to find solutions to protect them and their business.
It is inevitable that teams start to break down. In my view, for many, workloads are intolerable. This, combined with a lack of insight, expertise, strategy and confidence creates a leadership vacuum that condemns the team to an inevitable decline.
It is frankly no wonder that stress is endemic and for some has become too much.
The solutions are not easy, but they are in reach. My fear is that GCs will not admit their failings and so will not seek the solutions. My guidance may be as unwelcome as it will be ignored:
1. In-house lawyers must stop pretending the storm can be weathered. The world has shifted; it is unlikely businesses will continue to invest in increasing headcount. Teams must acquire the expertise to meaningfully build policy, process and training infrastructure.
2. GCs must breakdown the self-serving individualistic behaviours that have made things worse and entrenched many of the issues they face.
3. Teams must properly engage the business in a debate about the team’s role. This must be explicit, detailed and ensure there is common understanding supported by achievable targets that demonstrate the value of the team’s work.
4. Stop hanging on to snake-oil paradigms. The age of the trusted adviser (if it ever existed) is gone for the vast majority of in-house lawyers. If you have a value, it is building a framework that reduces the need for the business to rely on your individual contribution.
This article is deliberately stark and I accept there is far more nuance and complexity in every team; but I hope the limitations of a word-counted article do not disguise the genuine crisis of well-being faced by many in-house lawyers. A crisis we must all take seriously, not least because it is the unintended consequence of our own failure to address weaknesses we have know about for a very long time.
Why the business thinks it has lawyers
Most people in the business will have very little sense of the need for lawyers other than to ‘paper the deal’ or as a cheap way to manage background legal risk.
Beyond seeing the lawyers as a low-cost, convenient means to expedite transactions that would otherwise be slowed by more expensive external lawyers, there is hardly any recognition of the work the lawyers do.
Why the lawyers think they are there
In-house teams understand that there is a cost/convenience dynamic to their role, but also believe that the closer they are to decision-making the more they will shape a more efficient and risk-aware business.
The problem they have is that the business rarely wants more than cost and convenience. Anything else is of uncertain value, unsupported by evidence and is perceived to play more to the vanity of the lawyers.
What the business would like from the lawyers
This is simple. The business wants an on-demand service. It does not want anything that is integrated; it just wants the answer in the most timely and convenient way possible with a minimum level of disruption and engagement.
What the lawyers would like from the business
The lawyers are far more needy. For them there is little or no emotional or intellectual value in being used as a glorified call-centre resource.
It is essential for the lawyers that they are involved as early as possible as often as possible. Their justification for this is that they are then better informed and can shape the commercial imperatives in a more risk-sensitive way.
What the business needs from the lawyers
The compelling need of the business is for less intervention by lawyers, but to have better training, better policies and better processes. The intervention of lawyers on a matter-by-matter basis is bound to slow down decision-making.
What the lawyers need from the business
The lawyers need time. They need time to engage, to be briefed, to reflect and to advise. It is so far at odds with what the business needs that it is bound to set up inadvertent conflicts and an increasingly pressured environment, especially when the business is under increasing competitive pressures.
Paul Gilbert is the founder and chief executive of LBC Wise Counsel and a former GC at two major UK financial services companies.