At the best of times, the role of the in-house counsel is marked by loosely defined and ever-expanding boundaries. It is part of why the role demands a sufficiently flexible and open-minded candidate in order to be done effectively.

Enter COVID-19: norms of business and the global economy have been thrown into turmoil as countries across the world struggle to balance the need to control the flow of the pandemic with economic survival.

As of the start of August, four of the top ten countries for confirmed cases of coronavirus are Latin American. Businesses working in the region will be as pressed as businesses anywhere to weather the storm, adjust their practices and adapt to whatever world in which they find themselves operating after the peak of the pandemic has passed.

How do in-house counsel across Latin America feel about the effects of the pandemic? What have their experiences been? How do approaches differ between counsel and across businesses?

In The Legal 500’s GC Powerlist: Latin America Survey, we asked counsel working in the region all of these questions and more.

Status Report

While the pandemic hasn’t exactly affected all countries equally, most of the in-house counsel surveyed for this report could agree that it had affected their work, and that of their legal team.

46% of respondents felt that the COVID-19 pandemic had affected the output of the legal team to at least a moderate degree, with 20% feeling that the impact had been ‘great’. The single largest group were those who felt that the pandemic had ‘slightly’ impacted their legal team’s output, at 37%.

All but a small number of in-house counsel working in their country’s defense sector reported that them and their teams had been working from home during the pandemic.

‘I think everyone would agree that working from home under these circumstances would be ideal,’ said one GC working for an aviation and defense contractor within the region.

‘But for us, it is not permissible. We are working with documents and files that are highly sensitive, and that cannot be risked in remote working. Many of our employees are given a special government pass to be commuting during the pandemic.’

The majority of respondents (76%) felt that home-working had been ‘highly’ effective, and another 20% characterized home-working as having been ‘somewhat’ effective. The rest felt it was too difficult to say; not a single respondent reported feeling that home-working had been less than effective.

Measuring success remotely

This data begs the question: how can the effectiveness of home-working be properly gauged?

It’s a question which takes on added import among the speculation that this period of remote working will extend beyond the pandemic if not become the norm entirely. Despite virtually all respondents reporting their team working from home since the start of the pandemic, just over half (58%) said that they had been monitoring the effectiveness of homeworking for their employees.

For many, the proof is in the pudding:

‘We manage to complete integration projects and M&A initiatives in a record time,’ says Alejandra Castro, head of legal at Bayer, based in Costa Rica.

‘The feedback of the business is that the team is not only very responsive but also very involved in every company’s decisions. Home office has increased the overload of work in the organization but we have manage to keep performance on track.’

But the work doesn’t always speak for itself, particularly when the benefits brought by having a competent legal team are often difficult to quantify. In these instances, broader brush strokes are required when attempting to track how the team is coping under pandemic pressure.

‘We have shifted to goal based work, improved communication and knowledge sharing practices across the regional legal team, keep each other updated on target completion and adopted legal project management practices to keep everything on track,’ says Jorge Hirmas, general counsel at Orica.

Communication was repeatedly emphasized in survey responses and the interviews conducted with general counsel from across the region as being of particular importance in adjusting to entire workforces being taken off-site.

Ana Haynes, general counsel at Essilor in Brazil, said that they monitor home-working ‘through video calls, through the delivery of many work demands, through constant feedback and phone and video interactions, as well as surveys performed by our company.’

Sheila La Serna, Chief Legal at Profuturo, shares her organisation’s approach amongst the pandemic in Peru: ‘From the outset of the Sanitary Emergency Declaration and Social Isolation declared by the Government of Peru, we conducted daily videoconference meetings first to assess how the team was keeping up with their current home office situation, what needs they had (i.e. accesibility to our systems or physical attendance to the office, and health status) and furthermore, set a schedule considering housekeeping and child care hours since the majority of our members in the legal department are  women.’

‘Also, the CEO and senior management shared with the teams some podcasts with updates con health monitoring, challenges and quick wins during the COVID-pandemic. From June 2020 on, we had a twist for good knowing that “no size fits all”: we agreed on having virtual sessions twice a week only,  to review how we started and finished the week, but we kept communicating one -on -one by Whatsapp (legal department chat and individual chats), email and mobile when necessary.

‘After that, the team´s motivation rose because they felt they had more flexible time to spend with their families,  and I saw a change on our productivity measured by quicker responses made and greater number of emails that were replied during the day.’

One common sentiment was that there has been a realization (or validation, in many cases) that employees are just as effective when working from home, particularly when properly supported by the organization.

‘[We have] follow up conference calls and meetings,’ says Catalina Gaviria, legal vice president at SBS Seguros in Colombie.

‘Nonetheless, we are confident that our team is composed of great people who are very professional and committed to the result of the company! Therefore, more than conducting follow up meetings to tasks (which we do), during these times is always important to keep a warm contact. We usually use video to see each other, we ask daily how we are, talk about our personal and family concerns.   We even celebrate special dates as happy birthdays of the team, by sending food and celebrating!  We are convinced that a happy team always provide great results and are always effective, open, and available.’

Mental health

The COVID-19 pandemic comes at a time where an increasing amount of attention is being paid to health and wellbeing at work. The legal profession is in many parts of the world associated with long hours and high pressure, and despite a prevalent myth that these concerns do not exist in-house, general counsel must be careful to ensure they and the teams they lead are taking care of themselves.

Just under half (49%) of all respondents to the survey sent out as a part of this report felt that in-house counsel have appropriate resources available to them in order to assist with stress or mental health issues, and 37% answering in the negative.  A little over half (54%) of respondents reported that their organization has an employee mental health policy.

Of those who reported their organization having such a policy, the most commonly cited feature of the policy in use was the specification of a chain of command or point of contact for support. The second-most commonly cited feature was flexible working arrangements.

When asked to identify the leading causes of mental health problems for in-house counsel, the most commonly given answer was the high stress nature of the job (68%), followed by long hours (57%).

Now, thanks to COVID-19, the workforce is remote, which means the line at which work ends and recreation begins is even more difficult to manage. This was a concern expressed by many participants in this research, but just as common was a feeling that the pandemic has given teams the opportunity to explore how to keep their motivation and mental well being high.

‘We have been in constant communication with team members within my region, and also with the rest of the members of the Law Function within Cargill across the globe,’ explains Michelle Canelo, legal director at Cargill in Honduras.    

‘We have been monitoring feedback we receive, how are people feeling, dealing with the challenges that came with Covid-19, not only work related, but with new challenges from home with family. being mindful of the needs of our team members, providing them with resources, accessories that could make their job at home more easily, for example, coordinating that team members received the chair, their docking station, monitors, files needed, printers, headphones, etc from office and deliver to their homes, so that they can work better and take care better of their posture, their overall health.   

‘We’ve been also talking about mental health and how we can support each other, listening, talking of our challenges, etc.    we even had happy hour every month, getting together virtually at the end of the day, and sharing, a cup of coffee, a glass of wine or other, and a good non-work related conversation.’

Lasting change

For the in-house community, the upheaval of 2020 has manifested in a variety of ways.

The practically universal uptake of home-working for the duration of the pandemic is an easy example. But the in-house counsel surveyed also pointed to other areas that have seen change.

For example, respondents largely reported being more likely to renegotiate obligations with business partners as a result of the pandemic: 71% said they would be more likely, as opposed to 16% who said they would not; the rest were undecided.

45% of those surveyed said that they expect the way in which external firms will deliver their services to change as a result of the pandemic, compared to just 26% who did not expect any such change; the remainder were undecided.

‘I expect external law firms to be more proactive, more efficient, more agile and for their business understanding to improve,’ says Ricardo Estrada, senior lawyer for the wider Latin America region at GlaxoSmithKline.

‘I also think they need to be open to provide support 24/7 and to team with other external law firms and forget about how to compete with them, rather [focus on] how to team up for work.’

‘We are already living a change,’ emphasizes Sheila La Serna at Profuturo.

‘Most of the firms we work with have acknowledged the importance of adding value to in-house teams during COVID pandemic. Webinars, live or recorded and podcasts with legal content are now trends in many firms to keep clients engaged.

‘Delivery is definitely quicker and it is expected to continue that way.  Legal service will not disappear in the near future but I think that digitalization of the services, blockchain and artificial intelligence will challenge traditional law firm service sooner or later.’

As for homeworking, counsel were almost united in their expectations going forward: 77% said they expected homeworking to become more frequent, and another 17% said they expected it to become the norm. Just 2% said they expected the pre-COVID status quo to persist.

Some readers may know that González Calvillo has uninterruptedly partnered with The Legal 500 in sponsoring the Private Practice Powerlist: US-Mexico for several years. Looking back, each of the issues from 2017 onwards contained widely distinct business messages from our firm, ranging from record-breaking transactional work and law firm profits on 2017, to the forced adaptation of the Mexican economy to geopolitical changes in 2018, and finally the stagnation of our economy in 2019 due to a series of erratic decisions by President Andres Manuel Lopez Obrador and his administration. Market uncertainty and increasing concerns for investors were well underway at the outset of 2020. But cliché as it may be, nothing could have prepared anyone for what was about to happen this year.

Here we are, then, in the midst of 2020, facing what is now clearly the most severe global economic debacle since the Great Depression, let alone the vast human tragedy. By the time we write these words, we already know Mexico will not fare well from COVID-19. While developed countries across Asia, Europe and North America have already installed rescue and recovery plans of inconceivable dimensions -mostly aimed at saving small business who are primary sources of employment-, our government has opted to stay stale, basically. Experts have already pointed to the potential loss of Mexico’s investment grade by 2021, likely depending on the results of the midterm legislative elections coming next summer.

So where does this leave us lawyers besides working from home during many months? Well, this depends on whether one sees the glass half full or half empty.  Truth be told, our profession has been and continues to be one of sustained privilege; most of us have been able to continue serving our clients and attending each of our affairs without serious interruption and mostly seamlessly. All from the safety of our homes.

All of a sudden, a hefty chunk of clients to law firms were forced to alter their strategies, radically. The legal industry had to adapt swiftly to new needs; the experience accumulated in years of deal-making had to be abruptly applied to helping longstanding clients, with many of whom we have developed close friendships, survive. Those firms lucky enough to have invested in insolvency litigation and restructuring are now beyond busy. Sadly, expectations are that there will be an incalculable number of bankruptcies in Mexico as a consequence of the virus, exponentiated by the lack of robust economic assistance directives and support by the current administration.

But not all is lost. In addition to insolvency work, we are proactive witnesses of the notable uptick in revenue stemming from our technology practice group. Big-Tech companies, led by GAFAM, have evidenced that the world is accelerating towards technological solutions in most if not all of the components of our daily lives; the NASDAQ index is trading at all-time highs while fintech and ‘app’ companies are showing no signs of deceleration. Who had heard about Zoom just a few months ago? This appears to be welcome news for fund formation, private equity and M&A generally. Even during the pandemic, there have been substantial transactions announced between traditional banking institutions and technology companies, unimaginable just a few years back. Most of these deals imply considerable regulatory hurdles, so law firms carrying demonstrable sophistication and experience in banking, securities, pension funds and insurance are likely to be involved to sort these obstacles. Given the size of some of these deals and the potential competitive overlapping effects that they may have on the relevant markets, antitrust counsel to help navigate these challenges becomes critical.

It seems humanity is not likely to disappear as a consequence of this sad episode. If we concede to this premise, then we can safely assume that demand will pick up on homes, schools, and entertaining generally; leisure travel is already on the rise. In addition, valuations on infrastructure assets have been impacted in ways that can hardly be described. Those investors with longer horizon expectations are probably pleased to detect business opportunities in this jurisdiction that had not been available in decades. This is where solid real estate and hospitality legal teams can and should be tapped. We are especially optimistic on tourism prospects, where substantial investment has been made in our country and, with some long-term tweaks perhaps, it will be back stronger than ever. All of these enterprises typically come paired with strict ESG principles so expert advisors on these issues are additive to transaction outcomes.

We are optimistic, then, as we have been since our firm was founded. We may be working from home and may have had to learn a few tricks to safeguard full team communication and 24/7 availability, but interestingly we have had a chance to share more of our personal side with our team members, both colleagues and co-workers, and make it less a mechanical machine and more a human organization. We have learned and gained from each other in ways we never thought possible. We hope this ultimately derives in enhanced working experiences with our clients, to whom we are devoted. 

See more from González Calvillo at www.gcsc.com.mx