Strong General Counsel And The New Reality

Tuesday, February 28, 2012 - 13:50

Federal and state agencies have marshaled every conceivable weapon to ferret out compliance breakdowns and corrupt practices by U.S. corporations, including using qui tam and whistleblowing to incentivize suppliers, customers and employees to report corporate wrongdoing. In the past, general counsel faced the major challenge of getting early warning about developing compliance failures in time to nip them in the bud and avoid prosecutorial attention.

Compliance hotlines have proven not nearly as effective as having sufficient “boots on the ground” to enable members of a legal department to develop close relationships with members of management throughout a company, not only to serve their legal needs but also to listen to their concerns about potential compliance failures.

In the past, most general counsel did not have enough clout within the corporation to beef up the numbers of corporate counsel to play this role effectively. The New Reality is that general counsel now have the status that enables them to argue persuasively for the staff they need. They are not only in the C-Suite but many general counsel also serve on the corporation’s four-to-six member executive committee.

Technology now exists that bolsters general counsel’s insights into what is going on in the corporation, including early warning of potential compliance failures. As discussed in this issue’s interview of Craig Carpenter of Recommind (page 14), predictive coding equips general counsel with a technology that enables them to uncover real or potential compliance failures through email surveillance.

In her discussion of ACC’s strategic plan on page 47 of this issue, Veta Richardson, president & CEO of ACC, states that ACC makes available e-group communities to discuss common issues. She also mentions that ACC will emphasize issues affecting all CLOs, including large-law CLOs. These would be ideal forums for general counsel to exchange views on how best to obtain early warning of potential compliance issues. 

A new book by Norm Veasey and Christine Di Guglielmo explains why U.S. companies behave as they do. Aptly titled Indispensable Counsel: The Chief Legal Officer in the New Reality (Oxford), it describes a New Reality that includes the recognition of general counsel’s central role within a company. Because of its importance, we will feature a review of Indispensable Counsel on the front cover of our April issue.

Most encouraging is the emerging role of general counsel as an agent for positive change. An effective GC can help a corporation recognize the good things that it does and identify it as a responsible corporate citizen, both in a global marketplace, in the courtroom and with suppliers and customers. Our cover this month features an interview of Tom Sager, senior vice president and general counsel of DuPont, who, over an extended period, has been a tower of strength in his devotion to advancing the cause of minorities and women.

Tom points out in his interview that DuPont’s CEOs understood that having diversity as a core value and part of DuPont’s fabric was critically important. “They recognized that it gave DuPont a competitive edge because so many of the successes of the legal department were attributable to its ability to put together creative teams of diverse lawyers whose unique perspectives enabled us to develop approaches with a message that resonated with  judges, jurors, politicians and regulators.”

DuPont’s legal department, like that of so many other companies, engaged in a convergence effort that focused on sending litigation and other matters to a limited number of quality law firms that agreed to continue to meet its standards. A required characteristic of the firms selected by DuPont was their commitment to diversity and opportunities for women – and DuPont monitored their performance to assure that they continued along that path. 

Tom is also a leader in recognizing that the key resource of any law department or law firm is its ability to retain and support talented people who, by reason of family or other responsibilities, must engage in multitasking. On page 37, Shook Hardy & Bacon, a DuPont primary law firm, describes a group of dynamic women – superjugglers – who balance a full-time legal practice, family commitments and other substantial pursuits, such as writing mystery novels or running a nonprofit for children. The firm asked some of these women to talk about this challenge and were told that “while juggling or multitasking (is) not easy – amounting to three full-time jobs – the rewards and personal satisfaction (make) it worthwhile” Thus, we agree with Shook Hardy that “it is very fortunate to know that more firms like Shook have programs that make juggling feasible as well as easier.”  

Citing the example of Amy Schulman – senior vice president and general counsel of Pfizer and an executive leader of its corporate diversity program – Indispensable Counsel points out that “Including the legal department at the helm of a company’s diversity efforts makes sense. In-house counsel are well positioned to understand the effects of discriminatory employment practices, and they have the analytical and persuasive skills to improve diversity and inclusiveness throughout the corporation.”

Our April issue also will feature a Special Section in which our law firm and other supporters will talk about the characteristics that made general counsel with whom they have dealt great.