Legal news and trends for Canadian in-house counsel and c-suite executives
Issue link: https://digital.canadianlawyermag.com/i/52834
By Ken Fredeen Getting respect at the board table The role is expanding, but general counsel's challenge is to be seen as a trusted adviser. W elcome to my column on the role of general counsel, the first of a series. I plan to take some risks in this space and present arguments and ideas that will be thought provoking and hopefully spark debate about the work we do and how the role of general coun- sel has evolved. I will be writing from a personal perspective and my intention is to explore the challenges we as Canadian general counsel face, particularly as our responsibilities grow. If nothing else I hope to provoke some discussion and garner feedback from you, my peers. First, a brief introduction for those who do not know me — I attended law school in Saskatchewan and practised in both British Columbia and Alberta, mainly in large corporations in Calgary. In 2000 I joined Deloitte & Touche LLP as gen- eral counsel and corporate secretary. I speak from experience as a general counsel who has seen his responsibilities grow, but within the context of a private partnership. I am fascinated by the role of the gen- eral counsel in corporations and organiza- tions, and the unique challenges we face, particularly as our roles evolve. What I have learned is there are no two general counsel roles alike — each of us has unique challenges and structures within which we work. Some of us report directly to our chief executive officers, some through a chief financial officer or chief operat- ing officer, some participate as members on the executive, and others don't. Some have other corporate responsibilities such as compliance. We provide legal advice 38 • FEBRUARY 2012 in wholly owned subsidiaries, Canadian- based global companies, and private, not for profit, Crown and public companies large and small. We also exist in organiza- tions that have varying degrees of under- standing and respect for the work we do. One thing I know for sure is that Canadian-trained lawyers are some of the best in the world, and general counsel within the Canadian business community are talented and as capable as any. Why is that and will this continue to be the case is a question for discussion in future columns. Why is it important for an organization to have a general counsel? Do those we work with including boards and leadership teams understand this, or is respect some- thing we need to continually work for but never achieve? How do we build respect, both internally and externally with regula- tors and others? Do regulators, auditors, and other third parties understand and respect our roles within our organizations, even if we are not wearing multiple hats? My theory is that because our roles are continuing to expand, organizations have come to understand and respect the work we do, our skills are valued, and we are capable of taking on greater responsi- bilities. Those additional responsibilities become the reason for us having the high- er profile and the role on the executive. I believe that organizations need to think carefully as to where and how he office of general counsel is positioned, as inter alia, this will determine the respect and stature his or her lawyers and staff have within the organization. Our ability to understand the larger picture and integrate ourselves INHOUSE and our lawyers into the business allows us to be more effective and valuable in our work. A key part to our effectiveness is our work on governance. Boards expect the general counsel to be independent in the sense that the board needs to rely on us to give objective advice, possibly inde- pendent to that of management. Yet as a member of the executive is this possible and how does the board know that we are independent? I recently had lunch with a former senior general counsel and we dis- cussed a hypothetical scenario: A general counsel is asked by the CEO not to com- ment on a matter if asked by the board. In this circumstance, the general counsel navigate through the minefield of being a persuasive counsellor to the point of being brave, and perhaps unemployed. Rather than losing his or her independence, being a member of the executive team provides the opportunity to address issues in a per- suasive way, working through the issues and concerns so that they can be addressed proactively. But that requires respect, from the CEO and the executive team, and that comes not from having an expanding role, but intrinsically by being the general coun- sel. That benefits all, and in particular the organization which employs us. I am interested in exploring the nuanc- es and issues such as this one described above, which are associated with what we do. I hope to consider things with an eye to not only giving our roles higher profile, but possibly assist us to do a better job. Our positions have become critically impor- tant, but unfortunately too often valued only when a crisis hits or when a complex problem arises. We need to develop inter- nal marketing strategies suited for our organizations, develop skills to persuade the varied personalities we deal with, but also maintain our objectivity and our responsibility to act in the best interests of the organization which employs us. IH Ken Fredeen is general counsel with Deloitte & Touche LLP in Toronto.