24 February 2021
As companies seek a post-pandemic return to normalcy, they are entrusting the GC’s office with everything from cybersecurity to diversity initiatives.
Over the past several years, the role of the general counsel (GC) has evolved from in-house legal advisor to strategic partner. Once referred to dismissively as the office of “no,” corporate legal departments are now expected to deliver a competitive advantage by navigating regulations, easing complexity and anticipating future risks.
That was before 2020 happened.
As companies seek a return to some kind of normal this year, they are looking to their GCs to guide them through a broad range of thorny and unanticipated challenges. The pandemic, economic volatility, emerging technologies and racial justice movements represent a minefield of risk for companies of every kind, and companies expect their GCs to help them find their footing.
Late last year, FTI Consulting’s Technology segment partnered with data specialist Relativity to issue their second annual report on the general counsel. The report includes survey results and interviews with GCs from a range of industries about their jobs.* What follows are the five roles respondents most frequently said they are now expected to fill.
Guardian Over Emerging Risk
Managing corporate risk has long been a core function of the GC’s office. But the challenges of 2020 have greatly expanded and exacerbated those risks, intensifying the demands on legal departments to fulfill this critical role.
While the new risks are widespread and rapidly evolving, most stem from 2020’s nearly instantaneous shift to an all-remote workforce — followed by the gradual but halting shift to a hybrid workforce that continues this year. The new reliance on digital communication tools and unsecured Wi-Fi connections has introduced an array of security, technology and data risks. Meanwhile, a geographically dispersed workforce could create tax and regulatory headaches if employees decide to work from different states or even countries.
In general, a remote workforce means less control for companies and less security for employees. This has already become a major pain point for the GC’s office in 2021.
Chief Health Officer and Guardian of Employee Safety
The central challenge of COVID-19 has been balancing health and safety with a sustainable level of economic activity. As companies attempt to bring employees back to the workplace, it is falling on in-house legal counsel to handle tough issues such as COVID exposure in the office, implementing CDC guidelines, accommodating individual fears and preferences, and even the mental strain being placed on employees.
What is the appropriate temperature threshold for employees reporting to work? How much distance must there be between desks? And what is the company’s legal exposure if the virus spreads within the workplace? Such questions have transformed the GC into chief interpreter of CDC guidelines and evolving local health codes.
Mitigator of Skills Gaps and Outsourcing
All these new demands require GCs to bring a broader range of expertise to the job than ever before. But even the most experienced legal practitioner isn’t versed in all aspects of the law, which is why outside expertise has long been a foundational element of the GC’s legal tool set. As the demands on the GC’s time and expertise grow, he or she must simultaneously find and contract with outside counsel to close any skill gaps.
Supplementing skill sets is the primary reason GC offices are seeking outside help, but bandwidth and cost savings are also a factor.
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Advocate of Technology Proficiency and Adoption
Historically, legal professionals do not have a reputation for being early adopters of technology. In the first FTI Technology survey, conducted in 2019, only 39% of interviewees said that they believe they and their colleagues have adequate technological competence.
But like most workers, the pandemic and its remote-working mandate have forced GCs to ramp up their technological proficiency. When FTI surveyed GCs in 2020, the number saying they had adequate technological competence rose to 55% — a remarkable leap for a single year.
Still, having the basic technical skills to perform your job using Slack or Zoom is a long way from being proficient enough in emerging technologies — such as AI, cloud tools, or machine learning — to increase productivity and give your company a competitive advantage. Remote work may be forcing legal professionals to become more familiar with basic tools, but it is also delaying long-overdue large-scale digital transformations that would expose them to more advanced ones.
As basic technical proficiency is being forced upon in-house counsel, many feel they need to advocate for the tools and training needed to modernize their departments.
Steward of Inclusion and Diversity
The racial reckonings that followed the deaths of George Floyd and Breonna Taylor in the summer of 2020 motivated many organizations to revisit or refresh their internal practices and diversity, equity and inclusion programs. And many companies have tasked their GCs with spearheading these efforts, either as internal drivers and stewards of DEI or as dedicated stakeholders in company-wide initiatives.
But large-scale institutional changes do not happen overnight, which means GCs should expect to be overseeing these initiatives for years to come. The most recent FTI survey reveals that in-house counsel generally hold a positive view of their organizations’ DEI efforts, though there is considerable room for improvement.
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A Giant Step in the Journey
With hindsight, GCs may look at 2021 less as a hard break from their traditional roles than one more step — albeit a giant one — in their long journeys toward becoming full strategic business partners. Though the roles they are being asked to fill today are more expansive than ever, they are consistent with their growing importance within the company.
There is reason to believe that the GC’s office may never again return to a pre-pandemic sense of normalcy and routine. If that’s the case, flexibility, empathy and adaptability will be keys to survival — not just for the legal professional, but for their companies, too.
Download the White Paper: The General Counsel Report in 2021: Rising to Today’s Challenges and Building Resilience for the Future.
For further information, please contact:
Wendy King, Senior Managing Director, FTI Consulting
wendy.king@fticonsulting.com
Footnotes:
*: The survey was conducted from August 11, through September 2, 2020. Ari Kaplan of Ari Kaplan Advisors personally interviewed 31 general counsel with predominantly Fortune 1000 companies and institutions of higher education. Forty-eight percent have revenues that exceed $1 billion, and 61 percent have over 1,000 employees.
