Comment | Winter 2016/17
Paul Gilbert attempts to chart what is so rarely discussed: the core competences and obligations of a general counsel.
At the risk of saying something that sounds unhelpfully like, ‘general counsel means general counsel’, I have spent a lot of time over many years considering how people in this role should define their purpose and articulate their contribution.
Short articles like this can appear flippant and superficial, however, the question of purpose is of increasing significance and I would like to say something about it, even if it is only an introduction to an answer, not the answer itself.
Extraordinarily, there are no minimum qualification standards for the role of GC; there are no experiential requirements, no specific regulatory oversight and even if we put the words ‘general counsel’ into the search function of the Solicitors Regulation Authority website, little of useful note emerges.
And yet we all have a view of what a GC is and does. At its most anodyne it is something like this – the most senior lawyer in an organisation, employed to manage legal work on behalf of the organisation; except that a GC does not have to have practised law, does not have to be employed on a permanent contract and might not do or manage much or any legal work either. It is odd that such an important role, which is discussed endlessly in legal conferences, is so lacking in boundaries.
We have allowed the role of GC to be highly prized and yet easily appropriated by anyone who wants it.
Perhaps the same can be said for HR or IT or sales too, but when the legal profession itself is highly regulated and where the courts will sanction lawyers who fail to uphold professional and ethical standards, it is striking that we have allowed the role of GC to be both highly prized and yet so easily appropriated by anyone who wants it. If we cannot even guard the title what chance do we have to guard the standards expected of the title holder?
With this as the starting point, any short article that sets out to define the purpose and contribution of the role of GC will fail. However, I will share five reflections on the competency attributes for the role which I tried to live by when I held the position and which I now mentor GCs to reflect upon.
These five areas I consider broadly indicate competency for the role whether that role is in one of our largest institutions with hundreds of lawyers on the payroll or a provincial business employing a single solicitor. My point is not to say that these five areas are all that matter; it is that knowing there is such marked variation in the size and scope of the role of the GC, to identify commonality of purpose rather than difference.
- A GC with direct (or indirect) responsibility for managing other in-house lawyers has a duty of care to those other lawyers to ensure they work in an environment that respects the rule of law; that they have the tools and infrastructure to work to the standards expected and that at all times their professional regulatory and ethical requirements will not be compromised.
- A GC must agree (and keep under review) with their employer the broad boundaries of their role and the remit of the function. In effect, the GC will describe what is in scope and what is not. Once agreed, the GC will develop and manage the resources to fulfil the agreed scope of work and will be responsible for maintaining the required level of resources qualitatively and quantitatively.
- A GC must develop the measures and narrative that are specifically aligned to their purpose and which will evidence the fact that the agreed scope of their work has been fulfilled proportionately, expertly and compliantly. Generic benchmark metrics will rarely suffice given that every employer has a unique risk profile and unique strategic/operational objectives AND has made a specific, significant, often long term, investment in resources for the GC. The return on that investment must be visible, significant and specific.
- A GC must describe clearly and simply for their employer how their role is informed by their professional regulatory and ethical requirements. The GC must be competent to adhere to the professional rules of conduct applicable to all the jurisdictions in which they or their lawyer colleagues are regulated and where they undertake or oversee regulated legal work.
- A GC must be able to describe the boundaries between their purpose and the purposes of related risk management functions such as audit, compliance, secretariat and operational risk, so that their employer’s governance structures they help create, manage and operate within are transparent and accountable.
These five areas are not the whole story and each point deserves to be explored in significant detail; but I do believe that literally every GC and everyone who aspires to be a GC must be convincing on all five areas to be a credible holder of the title.
Paul Gilbert is chief executive of LBC Wise Counsel