Our first in a series of Informed Counsel events tackled the evolving role of in house legal in protecting reputation.  The discussion was led by a panel comprising Mike Harlow, Governance and Legal Director at English Heritage and John Downing, Company Secretary at Imperial Tobacco, facilitated by our Head of Regulatory Nathan Peacey.

The proposition

Protection of brand and reputation drives the risk agenda; it is of paramount importance. There is an opportunity for in house counsel to play key leadership roles, beyond the traditional arm's length legal adviser role, ensuring organisations are well managed in order to protect and enhance reputation, brand and profitability.

Beyond legal risk management

We debated the extent to which the in-house lawyers role goes beyond management of legal risk and regulatory compliance.  Inevitably it varies, for example depending on the organisation and the seniority of the lawyer. But for a number of lawyers present, the greatest value and interest to them in their role was in being at the heart of strategic risktaking to enable their organisation to be successful.

Lawyers are well placed to input into strategic decision making that takes account of risk, regulatory and reputational issues and various stakeholders. There was consensus that lawyers have the requisite skills to analyse facts and enable sensible, commercial decisions to be taken, balancing a range of risks.

Understanding your organisations risk appetite was considered key. Organisations that formally articulate their risk appetite were felt to be better placed to have a coherent approach to taking risks. It gave the in house lawyers a point of reference for their advice and for constructive challenge.

There was debate about how to exert influence without treading on senior management toes. That starts by adopting a 'can do' attitude when interacting with the business, develops into becoming a first port of call sounding board on a broad range of issues enabling strategic GC contribution at Board Level.  

One way to help manage risk is to manage decisions being made in the "right" way. In-house counsel can often be pivotal in making the right decision and managing risk in this regard. A key skill to develop is an ability to demonstrate "judgment" without showing you have already made the decision and are usurping power.

This stopped short of in house legal being the moral compass. "The way an organisation does business should not be controversial". Ensuring business was done in the right way was considered to be everyone's role, with tone and direction from the top, but legal have a role to facilitate it through astute questioning of decisions at all levels of interaction with the business and in their risk analysis.

GC on the Board?

On balance it was felt relevant for lawyers to be at the Board for relevant discussions but not on the Board. The checks and balance that a lawyer can exert requires a degree of independence from the Board decision making process. A degree of lawyerly objectivity was necessary to enable the lawyer to fulfill the role of enabling the business to make the right decisions to grow and protect the business

To be continued…

We only touched on broader issues of sustainability, values, articulating risk appetite and the perceived value (or otherwise) of risk professionals.

We also debated how lawyers can develop their influencing and negotiating skills to enable them to fulfill their potential and ambition.

We had positive feedback that in house lawyers welcomed a forum to debate these and other issues with their peers from other sectors