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The blurring lines of in-house counsel

Editor's Box
|Written By Jennifer Brown
The blurring lines of in-house counsel

When lawyers move in-house they obviously do so with their own career aspirations in mind. Some have an entrepreneurial spirit like that of Evan Johnston, general counsel of Churchill Corp. based in Calgary who, when I spoke with him back in September, told me bluntly that in five years he didn’t want to have a law job — he wanted to be on track to move into more of a business role.

There are others, like AGF Management Ltd.’s new senior vice president, general counsel, and corporate secretary Mark Adams who started out as a securities lawyer and loved that area of law, but wanted to broaden his activities to include more of what in-house duties involve, while staying within the realm of the capital markets.

Ideally, contributing to the business is what all in-house counsel do and find challenge in, but there are many who feel a little divided on how much they should be viewed by their internal bosses as a resource dedicated to advancing the business versus maintaining a delicate balance of being a legal expert first, then a business enabler. There’s promoting business, and then there’s keeping a certain independence so one can deliver the tough decisions business units may not want to hear. Should they keep that independent stance so they remain less invested in promoting the success of the business and more on side with potentially keeping it out of trouble? Or can they do both effectively? As Barry Fisher, vice president, general counsel, and corporate secretary of SAP Canada, said recently, “It’s very seductive when you are asked for your business view.” But Fisher makes a point of emphasizing to his business units that his expertise is in the legal realm, not necessarily business, and there are limits as to what he can advise in that area.

He insists in-house lawyers have an overriding responsibility to the legal profession first and points to disbarred lawyers as examples of those who lost track of the legal obligation in-house counsel carry. That doesn’t mean in-house must remain a silo unaligned with the business objectives.

When the Association of Corporate Counsel polled CLOs this past year, some of the issues that came up with respect to in-house counsel’s changing roles revolved around the challenge of being a legal versus business adviser.

Some have said that as in-house lawyers, they are challenged to do more especially in terms of being business enablers.

What additional leadership skills are required to fulfil this expectation? How does an in-house counsel develop a respectful working relationship with their executive team in light of this push towards supporting the business but keeping them out of legal trouble at the same time?

With these issues in mind, we’ve added a new contributor to the magazine with our In Closing columnist Ken Fredeen, general counsel of Deloitte & Touche LLP in Toronto (see page 38). He will explore the evolving role of in-house counsel and the challenges of becoming a trusted member of the executive team who is not asked to simply advance business, but hold a respected position of specialized authority.

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