The general counsel position has evolved in recent years. In addition to acting as a trusted legal advisor, in-house leaders have been charged with filling numerous roles, including strategic business partner, corporate conscience, and risk and crisis manager, to name a few. As a consequence of these expanded responsibilities, they have risen to become power players on the corporate executive management team.
Moreover, general counsel must serve one other vital role — operations manager. In an uncertain economy, in-house counsel are under pressure to effectively and efficiently manage the department’s budget, develop and retain talent, and deploy technology and tools. At the same time, GCs must sufficiently manage their own time and priorities when engaging in the day-to-day functions required to fulfill the duties associated with their expanded portfolios.
To better understand the environment in which GCs operate, ALM Intelligence and Morrison & Foerster launched the GC Up-at-Night project in spring 2017. The project was conceived as an ongoing study in order to not only gain insight into current practices but also identify future trends.
To support this objective, the project partners fielded an online survey of in-house leaders to measure sentiment around five broad categories of substantive legal matters: intellectual property, risk and crisis management, litigation, regulations and enforcement, and privacy and data security.
In the opening sections of the survey, respondents were asked to rate individually each of the substantive matters using an 11-point scale, with 0 signifying the issue is “Not at all important” and 10 conveying that the issue is “Extremely important” to the respondent’s law department.
The chart above shows that 74% of respondents ranked regulations and enforcement as the leading issue on the importance scale, whereas litigation and intellectual property, the two inner-most lines, were identified as very important by approximately 44% of respondents.
Between regulations and enforcement on the outer edge, and litigation/IP closer to the core, lies privacy and data security and risk and crisis management. The fact that these two issues ranked higher than matters like IP and litigation, which are more traditionally associated with in-house legal departments, is significant.
Privacy and data security is a growing concern in both business and society at large. Within the business enterprise, responsibility historically rested with the IT organization. While the legal department has always been involved in risk assessment, more and more GCs are coordinating the response when risk becomes a reality and a crisis ensues. The increasing importance of these emerging issues to the legal department is another example of the changing environment in which the GC operates. The larger role in privacy and data security is a reflection of the GC’s integration into the executive management apparatus and an indication that confronting these challenges requires a multidisciplinary and cross-departmental response.
Nevertheless, there is some indication that in-house leaders may not have the time, resources, or experience necessary to manage what are fast becoming conflicting priorities. The survey data revealed that the perceived importance of these emerging issues does not always reflect the amount of time inside counsel devotes to them.
Just as the survey asked respondents to rate the substantive legal matters using an 11-point scale, they were presented with a similar mechanism for identifying the time devoted to each issue. On the time scale, a 0 signified that the respondent’s department “Did not spend any time at all” on the issue, while a 10 meant that the department spends “A significant amount of time on it.”
The two emerging issues discussed above, privacy and data security (43% Time, 65% Importance) and risk and crisis management (46% Time, 63% Importance) are the most misaligned in terms of time and importance. Privacy and data security has a 22 percentage point time-to-importance differential, while risk and crisis management registers a 17 percentage point differential.
Compare those results to the so-called traditional GC responsibilities: regulations and enforcement, intellectual property, and litigation. The amount of time spent is much more closely aligned to perceived importance. This could be the manifestation of in-house leaders’ inexperience in confronting and managing these new responsibilities, a conclusion that is supported by additional data gathered as part of the project. For example, the GC Up-at-Night study dug further into each of the five substantive legal issues, and the data reveal there are crucial instances where GCs are not properly preparing their organizations, and others where they are misidentifying the concerns altogether.
The advent of the integrated and influential in-house leader has redefined the position of general counsel. Today, empowered in-house leaders must balance roles that are not always harmonious, while confronting a series of substantive legal challenges: some traditional, some emerging, but all always evolving. It’s no wonder GCs are having trouble sleeping.
To learn more:
Click here to download the free GC Up-at-Night report.
The GC Up-at-Night project is an ongoing study. The underlying survey will be fielded twice a year, with the next iteration slated for fall 2017. If you are an in-house leader and would like to be considered for the panel, click here.
Steve Kovalan is a Senior Analyst at ALM Intelligence. A member of the District of Columbia Bar, he holds a JD from the West Virginia University College of Law and a BA (summa cum laude) in History and Political Science from West Virginia University. He can be reached via email, Twitter, or LinkedIn.