Kayne: Do not create distance between you and the business
In-house lawyers should not think they are special because of their wider duties to the court as this risks alienating them from their business colleagues, it was claimed yesterday.
Dan Kayne, former general counsel at Network Rail, also called on in-house lawyers to use their buying power to drive change in the wider legal profession.
He was speaking during a session on leadership at the Solicitors Regulation Authority’s annual in-house lawyer conference.
From the floor, Richard Given, group general counsel at OpenPayd, disagreed with the suggestion from the panel that lawyers in leadership positions were the same as every other function in a business.
This was because of their overriding duty to the court and administration of justice.
He said he reminded colleagues that he acted for the company, not them, and that he has this independent duty.
“I say it when there’s not a problem and I say it repeatedly… but it does mean that, when there is a problem, they expect me to behave in the way I do, asserting my independence.
“For me, leadership in a legal context is to provide that environment where every other lawyer in the organisation feels confident to do that, no matter how junior they are, so that they don’t feel browbeaten by their commercial colleagues to acquiesce with something they feel uncomfortable about because they’re trying to be good corporate citizens.”
Mr Kayne, who now runs O Shaped, a consultancy looking to create “a more human legal profession”, countered that “saying there are different responsibility is [saying that] we think we’re different, we think we’re special”.
“The reality is we might think everyone loves us, they don’t. I spent a year in the organization before I became general counsel and they were delighted even though my role was a commercial one, that they could use me and not have to bother going to the legal function.
“It was such a slight that I couldn’t quite get my head around that they viewed great people I worked with in such a negative way.
“So any suggestion that puts a barrier between us and the business that somehow we’re more special or we have the power is going to undermine all the great work we do.”
He acknowledged SRA research last year in which 10% of in-house lawyers said their regulatory obligations had been “compromised”, while a further 5% said they had faced pressure to “suppress or ignore” information which could conflict with their professional obligations or was not in the best interests of the client.
“We need to understand why and address it, but what we don’t want to do is throw out the baby with the bath water,” said Mr Kayne.
“There are unbelievably incredible leaders within our industry and in-house who stop bad things happening every day of the week and that’s their role. Let’s not create distance between us and the business, let’s be closer to what’s going on. Let’s go back to building the trust and making sure we overcome negative perception.
“That’s where we’re really valuable. We are not valuable in an ivory tower, we’re not valuable if we keep bringing out the trump card [of lawyers’ wider duties], use it with caution would be my advice.”
He said in-house lawyers should put in place “levers” – such as policies, processes and governance, along with education – so they could take action “without going nuclear”.
Mr Kayne also speculated that it was small companies that recruited a lawyer with insufficient experience – “four years qualified, five years qualified, they want the title of chief legal officer” – where the problems arose as they were not capable of dealing with “the huge pressures in-house lawyers come under”.
Robin Lambert, group leader of legal & regulatory policy – digital transformation at Virgin Media O2, said he was “very keen on us being leaders, but there are parameters”.
He said he found it useful to set out those parameters of what the lawyers could do at the start of big projects, making it part of their governance.
For Alanna Andrew, head of legal at CBRE’s facilities management division, the priority was having conversations about the legal dangers of certain actions.
“Generally people in leadership positions in organisations are very responsive to that, I find. If you are working in a good, sensible, prudent organisation, I don’t think that conversation’s too difficult to have.”
Mr Kayne also argued that the role of in-house lawyers was more than “simply about enabling your business” – they needed to use their influence as clients to facilitate change “across a sector that in so many places is broken”.
He referenced the death last September of Pinsent Masons partner Vanessa Ford, who a coroner found recently had “consumed a significant amount of alcohol while undergoing an acute mental health crisis” before going onto railway tracks, where she was struck by a train.
She had only concluded work on a major deal a few days before, having worked 18-hour days on it.
While there was “no doubt” she had taken her own life, the coroner found “insufficient evidence” to conclude that she fully intended to do so.
Mr Kayne said this “may well be the tip of an iceberg that needs to be addressed”.
He continued: “If we are sitting here navel gazing at our own organizations, we are missing an area of our duty and responsibility to play a role in leading change across the sector.
“Whether it’s DEI [diversity, equality and inclusion], wellbeing, ESG [environmental, social and governance], whatever you are passionate about, use your smart and heart… use that to drive change across a sector that is so in need of it and you have an incredible ability to do.”
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