Matt Farrington's article The Modular General Counsel was published in the May issue of LawTalk. In this article Matt suggests how the different roles and responsibilities of the general counsel can be considered and allocated.
The role of an in-house counsel is a busy one. On any given day we can find ourselves dispensing legal advice, certifying documents, finding templates, managing contractual obligations, proofreading that really important paper for the Board/Minister, or just providing general reassurance. Think then of the poor General Counsel who supervises all of that, brings her or his expert legal judgement on the most difficult legal problems, attends the highest echelons of internal meetings, and deals with all those pesky internal budgetary things.
At Juno Legal, we’ve worked with a lot of legal teams and a lot of General Counsel. We see the roles and responsibilities of General Counsel expanding throughout both the public and private sectors and through large organisations and small. This is now at the point where the role has become simply too large with too many components for one person to do justice to them all.
One of our most frequent recommendations to the General Counsel we work with is to identify the various functions or “modules” they’re currently performing for their organisation. Which require the General Counsel’s personal input? Which are the General Counsel’s areas of strength, weakness and interest? And once that’s done – perhaps more importantly – we recommend that General Counsel formulate a realistic expectation of what can actually be achieved in a working week. Any modules remaining should be delegated to team members with appropriate skill sets to complement those of the General Counsel.
We’ve identified the following key modules that form key parts of the role:
People leader: For all except sole-charge, General Counsel will have direct reports. This might be the team of lawyers, or might involve managers or team leaders that, in turn, have their own line-management responsibilities. Many General Counsel also have non-lawyer direct reports such as risk, compliance, regulatory and practice management staff. In this capacity of developing and leading people, the General Counsel might have regular catch-ups with her/his team, carry out hiring and other personnel tasks, set performance expectations and complete annual reviews and development plans. Note that we treat workflow management (who’s got too much/not enough work on) as part of the legal operations role below, and matters like budget setting as part of the internal management role below.
Chief firefighter: General Counsel will often be involved in managing the legal (and quasi-legal) crises that inevitably crop up from time-to-time. Perhaps a significant court case is progressing, the media are asking questions about one of the organisation’s functions, or someone has sent a spreadsheet containing client information to the wrong person. In this role, the General Counsel is dealing with the legal issues and liaising with others in the organisation in a fast-moving crisis-management environment.
Technical expert: General Counsel are called on by more junior lawyers and others in the organisation for their technical expertise. Whether through long experience with the organisation or knowledge of the particular subject matter involved, in this role, the General Counsel shares her/his substantive knowledge and expertise to resolve difficult queries.
Final arbiter: The role of the General Counsel as final arbiter involves making hard judgements on finely balanced issues. Although related to the previous technical expert module, the final arbiter differs in that the General Counsel is making a legal judgement as to the strengths and weaknesses of particular issues, rather than giving substantive guidance on where to find the answer to a particular problem.
Legal operations: Legal operations involves much of the day-to-day processes of running a legal team and working to continuously improve these. This includes triaging issues as they arise, managing legal workflows around the team, and end of month/quarter/year reporting. It may also involve managing (or implementing) the tools, systems and processes used by the legal team in providing legal advice to their organisation. Basically working “on”, rather than “in” the business.
Manager of external legal counsel: Most in-house legal teams are supported by external legal counsel. In this role, the General Counsel oversees what work is being briefed out, reviews the work that comes back (sometimes translating it for something useable to the business), negotiates rates and panel arrangements and chases up end of month reports.
Governance/board secretary: Many General Counsel also carry out the function of board secretary for their organisation. In this role, the General Counsel may not be providing strictly legal advice, but is rather providing their expert advice and judgement to the overall functioning of their organisation.
Internal management: For good or bad, every in-house lawyer will be involved in the internal processes that are the lifeblood of most organisations. This may include team and project meetings, internal emails and communications, and training sessions and administrative necessities. In addition to this, most General Counsel will add executive/strategic leadership team meetings, HR and leave approvals, budget setting and other senior management processes.
Other: Various other responsibilities may be assigned to General Counsel. Many will also be their organisation’s privacy officer. Others have responsibility for risk, compliance, insurance or (for public sector organisations) the department’s legislative programme.
Are you a General Counsel that thrives on a fast-moving crisis, but have no particular expertise in triaging day-to-day workflows and implementing systems and processes to aid the legal team in their work? Perhaps you need to find a legal operations manager. Are you a superb people leader that can also effectively manage upwards, but simply don’t have the subject matter expertise to make the hard calls on difficult areas unique to your agency? A Deputy General Counsel, Principal Adviser or Special Counsel might be tasked with these specific areas of responsibility. There are many ways of dividing up all the responsibilities of a legal team; they do not all have to fall on the General Counsel’s shoulders. It is therefore critical that you find a division of responsibilities that works for you, for your legal team, and for your wider organisation.