10 years ago the fintech landscape was barely embryonic. The iPhone had only just been invented. The first ever bitcoin had just been traded. Regulations had just started to refer to such things as “electronic transmission of documents” pre-empting the rise of online and mobile financial services. Crowdfunding and robo-advice were in their very first stages. Of course the use of innovative technologies in financial services is nothing new (credit cards, ATMs, electronic stock trading, not to mention the stuff in the backend like mainframes, data centres and risk management tools). But with the explosion of technological capability, consumer sentiment and a regulatory push for more competition after the financial crisis of 2008, the sheer scale and speed of adoption and innovation was and continues to be breathtaking.
This created the perfect breeding ground for a new type of company: the fintech – and so came with it a new breed of lawyer: the fintech General Counsel (GC). I’m fortunate enough to have worked alongside many of them and the many fantastic external counsel that have repurposed their corporate, commercial and regulatory capabilities to be able to serve this unique sector. So as we enter 2020 and we look ahead to 2030: What will the fintech GC look like in ten years’ time?
Challenges and themes
At the heart of the role of the GC is the provision of legal advice to an employer (namely, the company and board) whilst upholding and complying with professional obligations. This includes upholding the rule of law and the proper administration of justice, acting with integrity, and acting in the best interests of the client -as set out in the Solictor Regulation Authority’s (SRA) Principles from the Legal Services Act 2007. Working in fast-paced, high-tech organisations that are themselves heavily regulated places means in-house lawyers in these environments face a unique set of challenges.
A true business partner
In larger and more mature organisations the role of the Legal function is generally well understood and there are clear frameworks for employees to know when they need to engage with Legal and what they will get in return. In small, nimble start-ups that is less true. It is usually the case that the first lawyer must establish the credibility and process of what an in-house lawyer is there to do. They can’t sit in an ivory tower waiting for people to come to them with well-formed requests for legal advice and nor can they simply reply with an opinion and an assessment of risk. They must get their hands dirty – getting in front of the business and being part of the decision-making process: A true business partner.
As an organisation grows and new business units are created, the demand for a replicable model increases within those business units. However this creates the risk of a lack of consistency, control and oversight across the business GCs must wrangle with how they can set up their in-house lawyers in an agile way that responds to the reality of their organisations, but also follows the SRA Principle to ‘… carry out your role in the business effectively and in accordance with proper governance and sound financial and risk management principles’. This will come into sharp focus for fintech GCs as fintechs grow and evolve over the next few years into large companies.
`A common concern for in-house lawyers is that their organisations can be mistrustful of their lawyers, seeing them as deal-blockers rather than deal-makers, or cost centres, rather than part of the profit making enterprise.` (Moorhead et al. 2016).
Clearly being established in the business as a business partner can help alleviate some of this concern; through sheer proximity to the decision makers and the business and a mindset of “business person first, lawyer second”. However, it does raise a challenge as to how to maintain the role of independent gate-keeper when a lawyer is so embedded in that particular business. Additionally, it is important to note that in most fintechs lawyers receive not insignificant stock options plans. There is a nagging question mark over the extent to which incentives such as these influence the independence of an in-house legal department. Perhaps as fintechs grow we will mirror the way in-house legal departments operate and move to a more centralised model; or a combination of the two with the central department setting risk appetite and policy within which the business unit lawyers must operate. Alternatively we could see remuneration rules apply differently to in-house lawyers (as they do for risk, compliance and audit professionals in financial services).
Regulation and Financial Services
Nearly all fintechs in the UK will be regulated in some way by the Financial Conduct Authority (FCA). This has a couple of significant impacts on GCs and in-house lawyers.
Firstly, the regulatory environment and principles-based regulation. Navigating the laws that apply to the services provided to customers and businesses must be read in light of ‘regulatory expectations’ which in turn must be gleaned from sometimes quite unlikely sources such as speeches made by regulators, guidance documents, letters to CEOs, and conversations with compliance officers. Building up this patchwork to ensure that advice complies with the letter of the law and regulatory expectations can be very difficult. In-house lawyers must become highly skilled at building networks within policy, compliance, external regulatory consultants and the regulators themselves to create solutions that work for their organisation.
Over the last few years in-house lawyers have had to quickly get up to speed to this new paradigm, overlaying well understood consumer protection legal advice with a deeper level of customer and business analysis under the framework of ‘Treating Customers Fairly’ and Conduct Risk. This will only continue and we may see over the next few years a fundamental shift in the legal relationship between fintech and customer following the FCA’s Duty of Care proposal . Although this has gone to the bottom of the pile in terms of the FCA’s priorities for now it would appear the genie is out of the bottle and a Private Members’ Bill is currently passing through the House of Lords.
The second major impact is the impact of Senior Management and Certified Staff Regime (SM&CR). Introduced for banks in 2016 and now applying to all of financial services with the tagline ‘SM&CR is a catalyst for change – an opportunity to establish healthy cultures and effective governance in firms by encouraging greater individual accountability and setting a new standard of personal conduct.’ This creates some interesting dynamics as it relates to in-house lawyers working in organisations under SM&CR, as they are already subject to the SRA regulations governing their standard of personal conduct.
A variation of this dynamic was heard in a recent consultation CP19/4 the outcome of which was summarised in PS19/20 that decided that GCs should not come under the SMF regime and stated that ‘including the Head of Legal in the Certification Regime and applying our Conduct Rules delivers most of the benefits of including these individuals within the SMR without compromising the law of legal privilege.’ In particular the impact of SC4 (which only applies to SMFs) on the law of legal privilege was of particular concern: ‘You must disclose appropriately any information of which the FCA or PRA would reasonably expect notice’.
Although that debate focussed on the impact of bringing in-house lawyers within SMF I believe that in-house lawyers will have to grow accustomed to living within the Certification Regime and the Conduct Rules (even aside from the higher standards of SMF). Although delivered in a different context, the Law Society’s response to UCL’s review of Legal Services Regulations notes that ‘the Clementi Review rightly highlighted the importance of an independent legal profession. A key indicator of an independent legal profession is the degree to which regulation of the legal profession is free from government control. The independence of legal professionals from the state is crucial to underpin an effective legal system and is a critical factor for the international reputation and success of English and Welsh legal professionals and their clients. The profession must be, and must be seen to be, unfettered in its ability to uphold the law. Only if this is the case can solicitors represent the interests of individuals and businesses fully, particularly in the many areas where individuals’ interests can conflict with those of the state.’
Although these tones may sound somewhat dramatic, the dynamic of being subject to two sets of conduct rules is almost certainly going to have some impact on how in-house lawyers advise and set up their functions. I can see external counsel playing a bigger role in helping in-house lawyers navigate this dynamic and using external advice legal advice more to demonstrate proper oversight and consideration of relevant risks. This will come into even sharper focus since the revised Solicitors Regulation Authority (the “SRA”) Standards and Regulations were published on the 25 November 2019 that pay particular focus on the question of conflicts and duty to the court in the context of in-house lawyers.
Rise of technology and alternative legal services in in-house legal delivery
The stratification of legal services based on complexity or importance of matter is nothing new. But with the advent of alternative legal business models, process outsourcers and technology, the GC of 2030 will need to be as operationally savvy in how to manage legal delivery at an appropriate price point (with the end consumer in mind) as they are with a plethora of supply chain options at their disposal. Managing this landscape has resulted in the rise of legal operations as a discipline and the rise of legal design and legal engineering as variants of this concept. GCs need to be able to navigate this skillfully to deliver on the ‘more for less’ demands on legal departments.
Modern matter management, contract management, discovery, horizon scanning, risk assessment and chatbot technology has promised in-house lawyers the ability to extricate themselves from the day-to-day and spend their time advising strategically on the business – but the reality is that ongoing maintenance of these tools can be a full time job. Buying off the shelf SaaS products can help with much of the heavy lifting but usually requires significant configuration to make it fit for purpose within an organisation. Building in-house is the holy grail but in high-growth fintech start-ups software developers always have more urgent things to work on than products to make in-house lawyers’ lives easier!
This market will develop over the next few years and I think we will see some truly transformational products that can deliver timely insights to in-house lawyers and can move work that is lower down the value chain to a technological solution. But I don’t think we’ll move away from the classic model of speaking with your in-house lawyer face-to-face or over email to get a bespoke answer to a particular query any time soon. Not only does the business tend to prefer it, in-house lawyers usually do too: the ability to solve someone’s problems in front of you, the ability to practice law and not just deliver legal services is still, in my view, at the heart of why lawyers become lawyers and I can’t see that disappearing.
One trend in high growth fintech companies – and it relates to the point above on business partnering – is to use highly collaborative communication tools to communicate internally. Google Drive, Slack, Notion and DropBox all create unbelievably fast and dynamic work environments where questions can be asked and answers given in real-time. This is incredibly powerful and allows advice to be given in the context where it is required and with incredible speed.
However, it creates two key issues: (1) the ability to integrate with the way external counsel work and their tools. Often in-house legal teams will have to spend time converting documents or copying and pasting legal advice from emails. It is slow and inefficient and the margin for error and loss of legal privilege is incredibly high. And (2) these tools do not easily allow for auditability – external legal advice is with reference to many layers of hyper-linked documentation which often changes after the advice is given. For these tools to continue to be fit for purpose over the next few years in a highly regulated environment they will have to design easy ways for key moments to be snapshotted and exported to a secure environment for auditability. The board portal sector has already made great strides in this direction but their tools are less weildy than those used by most technology businesses.
The ethical landscape
A number of other macro-trends over the last few years have started to impact how in-house lawyers and the legal profession at large conduct themselves in advising companies and individuals in the modern world. The Companies Act 2006 made some subtle but key changes to director’s duties and included the following as part of a non-exhaustive list of matters to which directors should have regard: ‘the impact of the company‟s operations on the community and the environment’.
This, amongst other things such as the growing rise of principles-based regulation around ethics and customer outcomes in financial services and data protection; the ethical introspection of the role of lawyers in silencing victims in the ‘me too’ movement and how that impacts workplace culture; the rise of specific regulations requiring financial services firms to consider the impact of climate change in their planning; means that in-house lawyers must elevate their consciousness to consider the three-hundred and sixty degree impact of their advice and the actions their clients take as a result. This intersection of law, finance and technology provides a unique opportunity for in-house lawyers to carry the torch for a new breed of ethics and advice that will, with courage, nudge us towards a kinder, gentler and more inclusive and sustainable future. As lawyers we should not underestimate our role here and we should lean into it, more. Much more.
As we look ahead to 2030 we will see a generation of fintech GCs who have technology and efficiency built into their operations from day one. They will have found innovative ways to be agile and will work how the business wants to work but with clear boundaries and audited processes around what they are there to do. They will be understood and supported by a mature governance framework in the organisation, partly driven by the regulatory environment in which they work. They will provide multifaceted advice and will draw in all stakeholders from customers, employees and the environment to provide a rounded view for their organisation’s long term success. I think most of all it will be a complex, fantastic and incredibly rewarding role.
Fintech’s growth as a sector grew out of a reaction to the financial crisis and a desire to do things better that would enable customers get a better deal from the complex and archaic world of financial services. I think the legal leaders who have been part of this will be at the vanguard of doing something similar in legal and ethical services over the next decade.