In-House Counsel & The Board - Top Tips
Sooner or later, most in-house lawyers are going to interact with the Board of the company they work for. If you’re the General Counsel this will be a very regular occurrence, if you wear the Company Secretary hat too, an everyday one.
There is no doubt that it is a role requiring both diplomacy and independence. Building an effective relationship takes time and careful nurturing; destroying it is quicker and easier. So what’s the best way to have a successful relationship with the Board? Here are a few tips:
- Be on the top of your brief – always! In your interactions with the Board, they will require your counsel and guidance but to put their trust in you needs their confidence in your abilities and effectiveness too. Once early in my career, I recall the Chair turning around and saying “I look to you as General Counsel to keep me and the other members of the Board out of prison.” He was only half joking and in any event this was an area where I outperformed! Seriously, when a member of Board turns to you, you must be able to provide an answer or at least give an initial view and know where to get a firm one and by when.
- Stick to your brief! Boards are not always great fans of lawyers and they like the law even less! If you are asked to provide advice on a matter, do just that but don’t bore the Board with the law, they are simply not interested. They want a solution to their issue – either from you or outsourced. But they do want an answer. In this respect you must treat the Board like anyone else you advise. The law is complex and full of shades of grey – Directors appreciate that. But they do want an answer and one of the great benefits you have over external lawyers is having a better idea of the context – e.g. the company you work for and the Board members - as well as not having to cover your back with caveats.
- And stick to the brief – yes I know I have already said that but it is important! Don’t be afraid to speak up but be clear on the mandate. But just as the CEO may hog the conversation and cover all the areas of their direct reports, this is something you should never do. It is fine to talk outside your area (to an extent) at Executive Committee level but at the Board stick to your brief – literally. That is what you are there for and what the Board wants you to opine about – as much as you might want to give a view on the corporate strategy, best to leave that to the experts.
- Wear your intellect lightly but your gravitas highly. You need to act and look the part at the Board. At all times. Again, it is all about instilling confidence. One General Counsel I know – a very bright individual – has a habit of cracking jokes to the Board, as well as other people he advises. Believe me, if the Board wants some light relief it will call in someone else. While the Board doesn’t want a po faced GC or in-house lawyer, it wouldn’t think of taking legal advice from a regular performer at the Comedy Store and so you shouldn’t act in that way either. Be serious but approachable in your dealings with the Board even if they scare the hell out of you (they shouldn’t but might!).
- Board related matters and the role you play with them tends to take precedence over everything else. You will need to prioritise the Board over anything else you do and that can cause frustrations with other people in the business.
- While the Board is the top of the apex of any business, remember too that it is a team and, in this respect, shares many of the features of other teams within the business. Therefore treat in this way too. Show the value you can add not least in reducing costs and being able to provide immediate and contextual legal advice in a way that an external lawyer may not be able to. Equally, don’t be offended when the Board wants a second opinion from an external lawyer on a material matter. You cannot be an expert in everything and, in any event, you are likely to be the person deciphering the advice to make it more manageable for the Board. As you will know as an experienced in-house lawyer, the ability to determine when to do something yourself and when to outsource is critical to your effectiveness and the success of the organisation.
- Get to know how Boards work. If you have not worked with Boards before then seek to understand how they work both from an overall governance, structural and dynamics view. A listed PLC Board with both Executives and Non-Executives will be very different for a Board of a private company, charity or non-governmental organisation. You need to understand the dynamics.
- Finally, when you work with Boards remember that although it can be both stressful and frustrating, it is also an immense privilege. You will be working with the people determining where the Company is going (or not going!) and see their hopes, fears, objectives and foibles. However, with privilege comes responsibility. Much of what goes on at the Board will be confidential and needs to remain so. This is even more the case with listed companies. It goes without saying that the Board expects you to respect the confidential nature of what it does.
Adapted from Your Role as General Counsel: How to Survive and Thrive in your Role as GC by Ian White and Simon McCall published by Globe Law and Business