Being an in-house lawyer and, in particular, a lawyer at Control Risks, entails much more than just working with the law. It is about the interplay between legal and ethical issues. One must exercise judgment, be comfortable with ambiguity and solve problems to advance the interests of the business and, thereby, its clients. And that approach helps to embed an empathetic point of view on the issues with which our clients are regularly confronted. They have to deal with those problems; we have to deal with those problems. Solving them ourselves helps us to do likewise for our clients. The decisions are rarely binary in a do it/don’t do it way. The outcomes are more nuanced: if we are to do this, what is the right way to do so? What mitigation can we put in place that makes the objective achievable?
I can't be the only one who finds it a struggle to get my brain up to speed on a Monday morning. But as I brew my second coffee in the company kitchen, there will be little time for the caffeine to take effect before I encounter my first challenge of the day: a colleague approaches with an ethical dilemma. Operating in some of the grittier territories in the world means that Control Risks and its clients confront these issues all the time. This particular one is not black and white – ethical issues rarely are. A client has asked us to provide protective services for a brief visit by some of its personnel to a highly unstable region in northern Africa. There are security issues, duty of care concerns – both for the client’s and our own personnel. We must also consider the issue of consistency: what are the implications if we should support one client where we would not expect to venture with others? To untangle and resolve this particular question, I consulted colleagues inside the legal team and beyond – a broad and balanced evaluation of the risk means weighing the security, legal, ethical and reputational issues implicit in the task.
This is often the way of things. Contrary to popular belief, legal positions are often ill-defined or unclear. Any number of factors can be at work here, including the absence of a developed legislative framework in the country in question, or, even, the lack of any discernible form of government. But even supposing you can ascertain what it says, the law is not the only consideration; far from it.
The moral compass that helps us navigate difficult terrain is invaluable. Without a code, without a sense of ethical purpose, what are we really here for? This philosophical question demands a response of Control Risks as much as it requires an answer from our clients. But it never ceases to strike me, sometimes quite forcefully, that in the same way as we advise global enterprises how to understand risk and how to manage their exposure in novel situations and unfamiliar regions, so we must, ourselves, come to terms with those very same issues. This is a virtue. It builds empathy: we all must confront the same challenges and solve equivalent problems. It creates robustness: the rigour of analysis required when advising clients on political, security or integrity risks is reinforced by conducting similar analysis, implementing coherent policies and procedures and engaging in tough dialogue whose purpose is to mitigate identical exposures within our own organisation.
Later in the day, I am asked to look at a contract for investigative due diligence services. In fact it is a competitive tender and a valuable opportunity for us. Once again, I find myself in a land of grey. “Just give me the deal breakers”, my colleague helpfully suggests. But are there really any? I am, I tell her, a consultant to our own business in the same way as she is to her clients. I point out the following parallels between internal and external consultancy. Just as when we consult for our clients, helping them to understand risk, we must deliver our advice in context by grounding it firmly within the landscape of each client’s own organisational resilience, risk appetite and ability knowingly to accept risk, so we must do likewise in assessing our own exposures. Questions about particular contract terms cannot be looked at in a vacuum. So, I say, I need to understand the ins and outs of the opportunity: the relationship with our client; the prospects for growth; the manner in which we will provide the services etc., if I am effectively to advise on risk under the contract.
This and similar conversations serve as a useful object lesson for me, too. They lend perspective to my own role as in-house counsel, confirming how important it is that lawyers work with business colleagues in a consultative fashion. No matter what my colleagues’ past experiences may have been, there is no room for lecturing, haranguing or finger-wagging in an in-house legal function. Surely simple professionalism dictates that this should be true in all circumstances? It is absolutely certain when supporting, guiding and counselling colleagues in extremely complex, and sometimes hostile, environments. There, in addition to the standard assortment of financial and reputational risks, my colleagues, and Control Risks’ clients, also face genuine physical danger.
Collaboration and discourse result in far better outcomes because they build trust and confidence. They also reflect an iterative process: a virtuous circle – perhaps an upwards spiral is a better image – in which each decision tests the assumptions on which the former was based instead of merely reinforcing those that have gone before. And cold legal analysis and commercial business interests are interwoven with ethical considerations. So I ask questions. I listen. I probe. I look for the softness in an argument or an objective which demands further enquiry. The purpose of this process is to get at a solution. What we hope, what we expect, is that solution will be a means of enabling us to pursue a commercial opportunity and support our client. If the outcome is otherwise, there is little point in being in our line of business and, certainly, there would be little point in employing me.