The Modern In-House Counsel

Abstract
Real value, for the in-house general counsel, is in being a great advisor to the organization as far as an organization most frequently faces business problems, rather than legal ones. Hence, one of the most important roles for the general counsel is, together with other business advisors (those in HR, finance, communications, strategy, sales, product development, marketing, etc.), to make the best decision possible for the organization at a specific time for a specific case. It is not to deliver a ‘perfect’ or unassailable opinion, as many of us might wrongly assume.

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The skills needed to be an effective in-house counsel have changed significantly since I went in-house. When I first went in-house, I went through the school of hard knocks, picking up the skills to be a valuable in-house lawyer and eventually, General Counsel. It was a slow evolutionary process. Thankfully, so were the demands upon me. That is no longer the case.

When you land in-house now, you need to come with the proper skills. You will need to be a jack of all trades, T-shaped, business-minded lawyer who is comfortable with ambiguity. When you come in-house, your hard legal skills are table stakes. Your employer expects, rightly so, that you have these hard legal skills, and where you do not, they expect you to figure it out. But they also expect you to add value to the organization. This is where your T-shaped lawyer attributes and business-minded skills come in.

When in-house, you are a part of the business, and everything you do must align to and support the objectives within the risk appetite of the organization. Your value will be judged on the quality and timeliness of your advice, as with any lawyer. But, it will also, and more importantly, be judged on your ability to integrate your advice with the business objectives and risk appetite of your organization. If all you bring is good legal advice, why are you in-house? It is your ability to deeply integrate your legal advice into the business objectives and risk tolerance of the organization that makes you valuable.

Many of these skills are best described as those of the T-shaped lawyer. The deep stem of the T is formed from hard legal skills. The more shallow but broader cross of the “T” is the myriad of ‘new’ skills of risk management, budgeting, data analysis, team management, project/process management, design thinking, change management, etc. These new skills of the T-shaped lawyer are applicable for all lawyers but critical for the in-house lawyer. Without them, you will not be able to contribute to achieving the business objectives of your organization.

As in-house counsel, particularly as GC, your value is not in being a ‘great lawyer’. Rather it is in being a great advisor to my organization. The organization does not have legal problems. It has business problems. Together with the myriad of subject matter experts providing business advice in your organization you solve problems. These other business advisors include those in HR, finance, communications, strategy, sales, product development, marketing, etc. Some problems remain primarily resolved with legal skills and experience. Like responding to a legal claim or drafting a contract. But, even those require significant input from other business advisors in the organization. Typically, the business problems of an organization have legal aspects but are not discreetly legal. Often your value, like the value of every business advisor, comes from very early stage input. For example, advising on significant regulatory implications when considering a proposed new product or service. To provide this valuable advice, the in-house lawyer must intimately know the business of the organization and its risk tolerance and have solid relationships with the key business heads in your organization.

Your CEO doesn’t want a legal opinion. She wants your recommendation on a business issue that takes into account the broader objectives and risk tolerance of the organization. You can be wrong (hopefully not), but you can’t make a timely decision.

Let’s look at a typical issue for an organization today where its core business model is disrupted and the CEO has challenged the senior team to build out new business lines and products or services – all while maintaining its legacy business - at least in the near term. This is not just a market research issue for the product and revenue teams to solve. Nor is the financial viability of it purely on the finance team to forecast. The entire organization must put all of its unified and aligned efforts behind this challenge – and many attempts and pivots will occur before success is found. The point here is that the legal team will be required to contribute. This could be with compliance advice, risk management, or require you to provide a data analysis of relevant IP and contracts. It could also require some pure SME advice, such as tax or copyright guidance. Furthermore, you will have a hard deadline and will not have full information, likely in the 70-80% range. The goal is not to deliver a ‘perfect’ or unassailable opinion. It is, together with other business advisors, to make the best decision possible for the organization at that time.

Though this may not sound like the work of a lawyer, at least to the traditionalist, it very much is for the in-house lawyer. No lawyer knows the nature of your organization and its appetite for risk better than its in-house counsel. If done well, you will be a key contributor to the business success of your organization, all while ensuring it is done with acceptable risk. You are now on your way to becoming an effective, efficient and invaluable business advisor to your organization. In short, you are on your way to becoming a modern-day in-house counsel.