Change? The basics still count

"The more things change, the more they stay the same”. This vision of “the in-house future” was the title of the closing keynote at this year’s In-house Annual Conference. Presented by Frances Coats, chief counsel (corporate and commercial) of the Ardonagh Group, it was a message intended to be taken literally only to a point.

As the conclusion to a day subtitled “Collaborate, respond and innovate”, Coats’ purpose was more to remind her audience of certain fundamentals as they try to help steer their organisations in a fast changing world.

So, for example, “One of the best things you can do is go out and speak to people, build relationships that have suffered from people being behind their desks and screens.” Or: “Technology will only work if we know our own businesses... You shouldn’t even think about spending money on it until you have answered the question, what do you want it to do?”

We will all have to step out of our comfort zones, she assured us. Not just general counsel; the whole team should be constantly looking for ways to do things better – perhaps having to overcome perceptions that lawyers are not progressive, as well as those parts of their organisation that are in fact resistant to change.

She also urged those attending to review their panel firms and appoint those that “get change”, as many are slower than their clients to wake up to the need. The pendulum, she predicted, will probably swing back from downsizing in-house teams. For in-house lawyers to have to do more with less is out of date, and we all have to concentrate on what matters most and adds value.

Coats’ concluding tips? Get out into your business; figure out your processes; keep up with what’s current and develop a nose for change; learn new skills (which most of us, she believes, enjoy doing); “sharpen your elbows” (exploit opportunities); use mentoring; and build a peer network outside the business. And go to coffee with your clients (perhaps those at your level) to find out how they work.

Job with a purpose

The day had begun with a keynote from Bruce Beveridge, a former Law Society of Scotland President whose varied career has now taken him to chief executive at Stòras Uibhist, the company managing the South Uist Estate post-community buyout. Seeking to define the role of in-house counsel in a successful organisation, he naturally has to combine legal adviser with wider responsibilities.

But whether in a large or a small organisation, you have to be a key, trusted, influential business partner. “If you’re not that, you’re not there.”

At the outset, he continued, you have to be really clear about your purpose: “Everything else will flow from that.” With that, you can engage better with colleagues – like Coats, he recommended spending time getting to know them and their work – without it, you can’t perform effectively. That engagement will also help take you beyond your legal training into financial and other aspects of the business.

If you aspire to a leadership role (and ask yourself if you’re really sure you do), the first thing you need is enthusiasm, as your behaviour will set the cultural environment. It will also influence the organisation’s ethical and moral compass, and bring responsibilities for colleagues’ wellbeing. In such a role you can have “a more positive impact on people”, he declared.

Ask the panel

The conference equally featured nuts and bolts issues. The first panel session focused on legal tech, with Leigh Kirkpatrick of RBS, Christopher Morgan of Arnold Clark and Stefano Rinaldi from NHS Central Legal Office pressing home from different angles the message that first of all you need to understand your own processes and what it is that you need, or you could end up with something that doesn’t do what you want, or that isn’t used because you don’t get colleague buy-in. One question to ask: is this something tech can solve, or do we just need to do things differently?

Similar points came up over going paperless – involve people in the decision and have them help shape the outcome; if they have concerns, show them the benefits, such as better rather than poorer access to information; ensure they understand how to use the solution or they won’t adopt it. You also need to have “honest conversations” with suppliers over whether their product can do specific tasks. Debunk the jargon!

The afternoon panel session was headed “Demonstrating value and retaining influence”, with perspectives from Alison York of SEPA, Stephen Taylor of AG Barr and Lindsay Thomson from Clackmannanshire Council. 

Taylor began by admitting, “We should have a strategy for this, but we don’t.” However, he proposed three themes: 

• visibility (making sure people know you are there, and what you do – his team marked the first birthday of GDPR with a cake!); 
• delivery, i.e. doing what you say you will, to deadline (also keeping the right balance between being commercially minded and giving proper legal advice); and 
• reflection, through benchmarking, KPIs and feedback surveys of other people in the business.

Thomson also admitted to not having a strategy, but stressed the importance of aligning with the corporate strategy: in her case, the council wanted to be a valued organisation. “Sharing knowledge so people don’t have to come to you is a good position to get to.” And innovation is necessary in order to address financial challenges.

York tried to align her team structure with SEPA’s way of working. They aimed to be proactive rather than “stay behind our screens”, and to deliver “clear, understandable advice but also solutions with priorities”. Having
had mixed feedback from her organisation, some believing that “bringing legal in early introduced negativity”, her aim was to create an expectation that they would be brought into projects at an early stage “to avoid frustration later on”.

Sector briefings

A very full day’s programme also saw the several dozen delegates, both new and repeat, from all types of organisation, treated to expert updates on three areas of practice common to most.

Looking at trends in contract law and how they impact drafting and negotiation, John McKinlay of DLA Piper dealt with issues arising from artificial intelligence, including IP – what happens if AI generates IP? – and ethics and reputation, where he has seen warranties about not introducing bias into the system. “Every system needs bias, or the output will always be the same. But you mustn’t rely on false assumptions”, he commented.

Brexit featured in relation to changes of law, force majeure, currency risks and data transfers; and McKinlay also had time to take in some leading cases, along with key issues on cloud computing and GDPR.

Of the many possible topics arising under employment law, Pinsent Masons’ Euan Smith chose to alert us to the pending HMRC crackdown (from April 2020) on people claiming to be self employed when they are in effect employed, with the onus to check being placed on the hirer, even though others could be involved in the chain. There had also been significant court decisions that notice of termination of employment was not effective at common law until received (so a contract should have a deeming provision); and extending the scope of vicarious liability to certain situations where there was no employment relationship, if there was a sufficient connection between the (effective) employer and the wrongful acts. Finally he covered the proposed status of EU citizen employees post-Brexit, with or without a deal, and the need to apply for settled status within the relevant time limits.

Completing the programme, Duncan Turner and Catriona Garcia-Alis of CMS presented a data protection update, including the pending introduction in Scotland of group proceedings for data breaches, and how GDPR was working a year after its introduction (a massive increase in notifications, not all of which were necessary, and the first fines still awaited due to an ICO backlog of older cases) – with practical points about how to prepare for the risk of breaches.

The day included a special thanks to retiring ILC chair Graeme McWilliams, and he expressed his delight at being able to open and close the conference as his final event.