In-House lawyers and Transformation
In today’s digital age, organizational transformation is the norm. To compete and remain relevant, companies are digitizing their operations and offerings, entering into new businesses, leveraging new technologies, and revising their internal ways of working. For in-house lawyers, supporting transformation can be a challenge. New products and services, emerging technologies, and revised business processes introduce new risks to be managed, throw risk/reward calibrations off-kilter, and require new or different supporting legal processes. Even small changes — such as the introduction of a new collaboration technology — can challenge legal departments.
Organizations need lawyers who can support them as they undergo transformations, big and small. They need lawyers who can not only identify issues but also help the transformation succeed. To do this, the lawyer must bridge the gap between business and law and even become a change agent herself. Doing so boils down to attitude and communication.
After spending many years supporting organizational change efforts, I offer some advice for lawyers supporting their clients through transformation.
Get in the weeds. Clients often complain lawyers focus on the weeds, but that’s because lawyers are in the legal weeds as opposed to the business weeds. To provide cogent legal advice about a transformational change, you need to understand in depth both the business and organizational reasons for the change and how it will occur; only then can you figure out what you can do to support the change and spot the potential legal and risk issues that need to be avoided, minimized, or accepted.
Curiosity about the business is key. What will the future look like? How will we get there? What are the benefits and rewards and who will receive them? How will the change occur? Who will the change affect? When asking questions, focus on the business and the positive; don’t start with the negative, where lawyers as professionally trained skeptics naturally tend to go. Likewise, don’t start with questions about how the business will address the various risk issues you see. At some point, you will need to raise the issues you see; but before then, take the time to learn and understand why the business is seeking this change and the benefits it is trying to capture.
With these questions, you get yourself in the weeds of the change, giving you a detailed and holistic view of the change and its benefits and risks. With that perspective you can see not only how the change may increase certain risks but also how it may decrease others or how you can mitigate potential risks by taking a different path to the same destination.
By asking questions, listening to the answers, showing excitement, seeing the possibilities, and getting into the business details, you show your clients you are interested in and understand (or are trying to understand) what they want to do and why. With that perspective, they will be more willing to come to you, work with you, and listen to you. And that makes you able to protect the organization. If your client thinks you or the rest of legal “don’t get it” -or worse- don’t care if they succeed, then you have little hope of knowing what they are doing until it’s done and will be relegated to being a bystander waving a red flag of warning.
Join the team. Lawyering is often done from afar, at a comfortable reserve. Asking leaders of the transformation to come to you early and often (and being frustrated if, and when, they don’t) is not enough. To support transformational change, you need to be on the team – not a passive observer. That means you need to commit to the project. By joining the team, you signal that you – like they – are accountable not only for success but for failure if things go wrong. People are more likely to open up to you, listen to you, and trust you and your advice when you are part of their “we.”
Because change efforts generally evolve rapidly, being on the team is also the best way for you to understand and shape the project’s evolution in real time. That may mean sitting on calls without an obvious legal topic or angle, but by being there you demonstrate your commitment, learn various aspects of the project, and understand how they fit together. By being there, you are also able to provide proactive legal advice in areas where the project team otherwise may not have thought legal would be implicated.
Most importantly, by being in the room you can raise potential challenges as the project progresses; as a result, challenges can be addressed early on, rather than when the project is so far gone that it’s hard, time-consuming, or expensive to change course.
Some may might say this advice is inconsistent with a lawyer’s duty of independence. But you can maintain your lawyerly independence even as a team member. To function well, every team needs someone who challenges them and helps avoid groupthink. Your lawyerly training, skill set, and skepticism can help the project team avoid blind spots. And your ethical duty of independence gives you permission to be the foil and to challenge the group, without it being personal. By doing so, you make the team stronger, increase its chance of success, and protect your client — the organization.
Don’t be co-opted. Although you are on the team, you cannot become co-opted. It can be a delicate and at times uncomfortable dance, but you must remember your client is the organization, not the team of which you are a member. That means you must speak up and dissent when necessary and help ensure the team’s progress and challenges are characterized accurately. Governance processes and updates provide a mechanism to make sure that challenges the project is facing are raised to leadership’s attention; your legal updates can help make sure that they are complete and accurate.
While you cannot let yourself be co-opted by the team, you should also avoid being co-opted by the naysayers in the organization. Resistance to change is a given and occurs for many reasons. Changes in power dynamics are often a source of resistance, and not surprisingly, those who foresee a decrease in their absolute or relative power following a transformation will seek ways to stop it. And legal can become an easy way to do that.
People trying to fight change may try to hide behind legal. (It’s much easier and more palatable for a business leader to say “the lawyers say I can’t” than “I don’t want to do this.”) Sometimes it will be true that the proposed course of action is illegal, and as a lawyer it is important to advise your client of their legal responsibilities. But reality — and the law — is often less clear. This is especially true with emerging technologies and new businesses that are out in front of the law and regulation.
In those situations, putting a premium on clarity can often mean no. Instead of allowing yourself to be co-opted or pushed into clarity that may not exist, you should acknowledge the law is not clear cut if that is the case (as often it will be). Help your business colleagues understand the ambiguity, the pros and cons of the proposed actions, and the choices they need to make. By avoiding false clarity, you can help your business colleagues address the business and organizational dynamics head on, even if that requires some difficult discussions and hard decisions.
Prioritize. To most lawyers, the many obstacles and downsides of change will be readily apparent. Good at issue spotting, many lawyers will readily generate a list of the many and sundry reasons why the change won’t work, will create risk, and will upset stakeholders. Generating and documenting the list is important — but in its raw form it is best to keep it just for you.
To both achieve change and manage risks, you need to prioritize the risks. Put out a list of all risks at once, and you risk overwhelming people and implicitly sending the message that it’s not even worth trying. Treat all risks the same, and neither you nor the team will know where to focus. Not all risks are equal and there will never be enough resources to address them all. You need to categorize the risks and focus your and the team’s time and attention on the big ones. Some risks are determinative: if they materialize they will defeat the whole purpose of the change. Address them first. Others are so important they must be managed. Those come next and must be addressed as part of the project’s design and rollout. Others may need to be documented and watched or addressed over time.
Finally, some risks may simply need to be understood and accepted. This includes risks that are so bound up in the change that there is no alternative but for the business to understand and accept them. For example, when email systems were first implemented, they were transformational. And lawyers would have had understandable concerns about how both the volume and casual nature of email communication would create lots of new evidence for litigation. But that downside is so bound up in the benefits and nature of email that it would have been hard to do anything but accept that risk when organizations sought to speed communication through its use.
Stretch beyond the law. It is often unclear how existing legal frameworks apply to new businesses, new ways of working, and new technologies. Existing legal frameworks may be clear but inadequate to address the societal, reputational, and other risks that new businesses, ways of working, and technologies create. By focusing narrowly on the law, you do a disservice to your organization. Push your business colleagues and the larger organization to consider and address the ethical, reputational and other “softer” risks that change presents. What will customers think about it? How are regulators likely to react (even if the change is “legal”)? What kind of backlash will the change create if not managed well? Ironically, if you focus only on the law – and permit the internal debate to be framed in terms of only what is legal – then you may inadvertently let your organization leave unaddressed the reputational, ethical and market risks that may be the biggest risks of all.
Frame the objective, not the process. When advising the project, set out the objective(s) of the law or regulation and ask the team how they can meet it. Don’t short circuit the process by prescribing how each objective must be met, unless the process is mandated in law or regulation. Just as there are often many ways of achieving a business objective, there are often many ways of achieving a legal one. Don’t assume that the way the objective has traditionally been met or the way you as a lawyer would prefer it be met is the only one. Allow your business teammates the opportunity to own the legal problem and figure out how to address it. They very well may have solutions that have not been identified before but comply with the law and fit better within their business processes and objectives.
Be a guide. To manage change safely, considering all the angles is important, and rare is the lawyer who can cover all of them. To support change, you will want and need to understand the perspectives of legal, compliance and risks management colleagues with expertise and experience other than your own. Many consultations with many groups will be required. But it’s important to manage them. Don’t send the project team alone on what can seem like a winding and endless journey among the various legal, compliance, and internal risk groups. Guide and support them through what can seem like (or even be) a maze. Think through which consultations are likely to be necessary, so there are no surprises. Map out the most efficient and effective order for them to occur. Talk to your legal and risk colleagues in advance so you can anticipate questions and concerns to help your colleagues frame their questions and provide the information that is needed. Help lay the groundwork with your colleagues by providing the background to the initiative and the advice you have provided. As someone with knowledge on how the legal and risk management functions within your organization work, you can provide invaluable insights to your business colleagues on how to engage with risk, legal and compliance in a productive and successful manner.
Explain, Listen, Facilitate. No organization can succeed in changing itself in the face of internal resistance. Helping the people of the organization understand the change, why it is needed and its benefits reduces resistance. So does listening to their concerns and addressing them as possible or helping them understand why the change is still needed even in light of their concerns. This process of “change management” is critical to a transformation’s success.
Often legal and compliance are left out of the “change management” process. That is a mistake. It is just as important to bring the lawyers, risk managers and compliance staff along on the journey as it is everyone else. If the legal, risk and compliance departments do not understand why the business wants to change and the benefits it will bring, and if their concerns are not heard or taken into account, they can and often will resist.
One of the key roles you can play to support successful change is to make sure that your colleagues across the legal, risk and compliance departments are not forgotten in the outreach and change management process. Help the business team craft communications and messages tailored to the likely concerns and needs of risk, legal and compliance. Proactively help your legal, risk and compliance colleagues understand the business and legal analysis underlying the change and how the risks are being managed. You should also help your colleagues focus not only on the downsides but also the opportunities, including the ways that the change may decrease certain risks that existed before. Finally, it’s important to also help your colleagues understand that missed opportunity can be equally as detrimental to the organization as the risks that come with embracing that opportunity.
About the Author Britton Guerrina is a Senior Managing Director and Associate General Counsel at Deloitte Touche Tohmatsu Limited. Britt’s practice focuses on technology and innovation in the context of professional services. She has extensive experience supporting teams driving change and transformation across multiple jurisdictions. Britt is a graduate of the University of Chicago Law School.