Eye of the storm: General Counsel take the lead in crisis management

Corporate crises have long called for General Counsel (GC) to apply their legal expertise and judgement.

But, with the rise of cyberattacks and data breaches, a greater focus on environmental, social and governance issues, class actions and the emergence of more powerful artificial intelligence, GCs are contending with more frequent and varied crises.

GCs are also playing a larger role in helping businesses navigate such events. Instead of simply being asked for legal opinions, they find themselves and their offices leading the coordination of internal response teams. They are also being asked to have a view about the ‘right’ path forward for the company – one that considers both ‘hard’ and ‘soft’ law standards and wider community and stakeholder expectations.

To explore how companies are approaching these issues, the Ashurst Leadership Centre convened a roundtable in partnership with The Legal 500 in Sydney in November 2023. The event was attended by 15 GCs from Australia’s largest companies and Ashurst partners and communications experts.

The discussion was facilitated by Lea Constantine, Partner, Head of Region – Australia.

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The journey to the top

On 25 May 2020, the murder of 46-year-old George Floyd made international news headlines. What followed were nationwide protests against police brutality that would ultimately make the Black Lives Matter (BLM) demonstrations a global movement.

In response, corporate America was quick to condemn social injustice and racial inequity. Companies and law firms vowed to re-examine their own diversity and inclusion initiatives and make tangible commitments to hiring, developing and promoting a more diverse workforce.

Time for change

One of the most under-represented groups in the legal industry is women of color. Those who have made it to the upper echelons of the legal profession have defied the odds, and their climb to the top has not been easy.

‘According to the US Census Bureau, the legal profession is the least diverse profession in the United States. When you look at racial/ethnic representation at the partnership level, the numbers are dismal – only 6.6% (Source: NALP). These numbers do not reflect the diversity of this nation,’ says Laurie Haden, president and chief executive officer of Corporate Counsel Women of Color (CCWC), a not-for-profit organization focused on advancing female attorneys of color and fostering diversity within the legal profession.

‘Over the years, law firms have sought to combat this problem with unconscious/implicit bias training and other programs and initiatives. Unfortunately, not much progress has been witnessed over the last 20 years.’

‘We have all had these conversations in private, but now we are bringing them into the workplace.’

However, the global pandemic, together with the BLM movement and a fraught political backdrop, has made this a defining moment in history. Ashley Page, former general counsel at Learfield IMG College and current chief compliance officer at Endeavor, believes that people are now ready to acknowledge the need for change.

‘I really think that we are at a watershed moment in this country with respect to issues of race and gender. People are tired, frustrated and angry. There has just been a lot to deal with during the last presidency,’ she says.

‘Everything is just at a boiling point. So I think, for the legal profession, it has pushed many of us to take sides and discuss difficult topics within our professional circles. We have all had these conversations in private, but now we are bringing them into the workplace. It is pushing us to lead, it is igniting a fire under many of us to use our talents to help tilt our country in the right direction at this pivotal moment. It is pushing us to really question what we can do and whether we should be doing more as members of the legal profession.’

I didn’t know you were black

Traditionally, the legal profession has been a white-male-dominated industry. Despite more women entering law school than ever before, it is important to recognize that women of color continue to face a unique set of barriers.

‘I have lost count of the amount of times I have walked into a conference room to meet with a group of people who I have only emailed with or have spoken to on the phone. I have lost count of the amount of people who have said to me, “Oh, I didn’t know you were black? I talked to you on the phone, I didn’t know you were black?”, says Page.

Among the biggest challenges for women of color when navigating the legal profession are implicit and explicit biases. Page explains how these biases can often begin at law school.

‘I have lost count of the amount of people who have said to me, “Oh, I didn’t know you were black?”‘

‘Getting into Harvard Law School straight from college was a huge deal for me. It was just not the type of opportunity that was usually extended to people who looked like me, and came from where I came from.’

‘When I got there, I was so proud of myself and everything I had accomplished. But I immediately felt that my credentials and the validity of my presence were being questioned by my peers. There was an assumption that the only reason I was there was because I got an affirmative action spot. I was a black woman who did not come from an Ivy League, I did not go to a Exeter, therefore they could not accept that I was still their peer intellectually.’

Despite initially getting angry about having to face such assumptions, Page explains she was able to rise above being stereotyped. But having her credentials continually questioned was something she faced again when entering private practice.

‘Being told to work harder to fit in at a firm in order to position myself to get better opportunities was just one of many barriers I had to face,’ she recalls.

‘I have evolved to a point in my career where I am able to hit those issues head on, having risen up the legal ranks. Now I have the ability to impact people who might be having those types of experiences – by leading by example, and fostering the diversity and inclusion initiatives to help ensure the types of experiences I had become non-existent for the next generation. It has not always been an easy road, but being open and honest about my experiences lets other people know they are not alone.’

Where did you come from?

Despite running a legal team of approximately 30 people, Phyllis Harris, general counsel, chief compliance, ethics and government relations officer at the American Red Cross, shares how she has managed workplace prejudices.

‘In 2017, a former employer asked to meet an attorney who was visiting in-house counsel. I was to help him do the rounds and make sure he was across the assigned work. When I walked into the room this person – who is a good person – was talking to a colleague and the colleague stood up, because in terms of hierarchy I was higher in the ranks.

‘I stuck my hand out to introduce myself. He thought I was the assistant to someone in my organization. I was senior vice president, I had been practicing law at the time for more than 30 years, and I could not believe it. It was not just that he thought I was the assistant to the person who worked for me, he was confused and asked: “Where do you come from?”

Women of color are more likely to be subjected to bias.

‘As I tried to explain to him where I had come from, he remained confused. He asked me this question several times. What this showed me was that in 2017 he had very little interaction with women of color in the legal profession.’

In the end, Harris was able to develop a good rapport with the person and explain her position. Yet, she admits that this conversation illuminated a much larger issue. Although the legal profession has made some progress, women of color are more likely to be subjected to bias.

‘This is the change I am waiting for. We have brilliant people who come from extremely competitive law schools with incredible pedigrees. And it doesn’t matter where I came from – it matters that I am here now and this is who you are dealing with.’

Use your own imagination

Taking control of your career and being proactive is important for all legal professionals. Kimberly Banks MacKay, general counsel and corporate secretary at West Pharmaceutical Services, believes that means not letting others determine your opportunities.

‘Every successful woman, person of color, or anyone with a diverse background, has definitely experienced bias, either explicitly or implicitly. By way of example, early in my legal career, I was working at a company, and my own boss told me that I needed to accept the fact, that since I was now “a mother”, I was never going to be general counsel because anywhere.’

‘So given the clear bias, I believed him. I believed that I had no future at that company and got myself out of there. My point is I did not wait. Once I knew that my future would be limited by this person, I made the decision to leave. I have no problem assessing and accepting the realities around me and make my decisions based on that. Otherwise, I would be giving other people too much power over my career.’

MacKay is adamant that young lawyers should not internalize other people’s biases.

‘Early in my career, I saw a lot of talented lawyers become mired in self-doubt because of other people’s view of their capabilities. I was determined that was not going to be me.’

‘I recognize people have biases but, in the end, I am not going to let people’s perspectives limit the belief I have in myself. I like to say that you should  never let your career be limited to someone else’s imagination. Just because they can’t envision you as something or somewhere, it should not affect YOUR ability to  envision yourself in that way. So when somebody thinks I can’t do something, it just gives me fuel to make sure I get it done.’

For the love of law

Both law firms and companies have much to gain from employing diverse teams. Research indicates that diverse legal cohorts are more innovative and outperform teams that are not diverse.

‘Studies also show that companies that have diverse management teams are more profitable. This is a no-brainer. Why would any company or firm not readily diversify? With a diverse and inclusive workforce, you will have more voices of different cultural, racial and ethnic backgrounds that can have input on a case, a law and/or policy,’ says Haden.

Yet attrition rates of minority attorneys have remained high. So many women of color have managed to beat the statistics and navigate difficult workplace cultures by making their own opportunities.

‘Being a female lawyer of color, there are challenges along the whole way. I believe you have to set your goal, believe in yourself and think about building a network around you with people who have done what you want to do,’ explains Wanji Walcott, chief legal officer and general counsel at Discover Financial Services.

‘It is also very helpful to have a broad network. You need to surround yourself with people who can give you tough love when you need it. But, more importantly, find people who you can trust and are willing to help you.

‘I think diversity and inclusion is trendy right now. It is almost like a fashion trend you find in Vogue. But the reality of the situation is that real change is going to take a lot more time, effort, investment and resources.’

‘You have just got to keep at it and let people know of your goals and aspirations. One of three things will happen: they are either going to be supportive and help you; they are going to block you; or they are going to be neutral. You will be lucky if they are somewhere between neutral and helping you. If they are blocking you, you may not be in the right place.’

Minority GCs who have navigated their way to the top of the legal profession have been passionate about the law and about ensuring the next generation has fewer barriers to overcome.

A movement not a moment

For the women of color who have shared their journeys to the top, discussions around diversity, equality and inclusion are more than a passing fad, and it is an imperative for law firms and corporations to follow through with real action.

‘I think diversity and inclusion is trendy right now. It is almost like a fashion trend you find in Vogue. But the reality of the situation is that real change is going to take a lot more time, effort, investment and resources. All that work is going to take a lot longer than any trend will last,’ explains Page.

Walcott agrees that more work is needed to achieve sustainable and lasting change within the legal profession.

‘It really is a matter of sustaining that momentum now and making sure it wasn’t just a moment, but a movement that will be supported over time,’ she says.

Ultimately, while conversations around boosting representation have been important, many leading general counsel, such as Harris, are still waiting for the profession to make more lasting advancements.

‘What is happening now in the world has been a wake-up call for many in the legal profession. We have heard a lot of great statements, but I am still waiting on more definitive action,’ says Harris.

‘With Covid we have seen women leave the workforce because they are responsible for looking after children and homeschooling. It is important to recognize that this has been an important time to not only see the race piece come into play, but also the gender piece. When you put the gender and race piece together, it has been an even bigger wake-up call for black women.’

Real, sustainable change has been hard to implement, even when firms and corporations make great pronouncements about their commitment to D&I initiatives, says Haden.

‘Diversity and inclusion must be more than lip service and quoting what the company’s handbook and policy state. To recognize sustainable change and impact, corporations and law firms must be committed to walk the talk. We need more people to take the lead and more companies and firms need to work to ensure D&I is ingrained in the culture, and not just left on the shoulders of one person.’

Through real action, leaders in the legal profession have a responsibility to take individual ownership of their DE&I efforts. These efforts are key to engraining this movement into the culture of organisations to create change not only in the legal profession, but within the wider community and beyond.

Breaking Barriers and Building Community: Corporate Counsel Women of Color (CCWC)

When Laurie Haden moved to New York City in 1998, she was the only African American woman at her firm. As a young attorney she felt isolated and alone. Haden quickly sought out other lawyer friends who, although working at different law firms, shared her struggle.

‘There was a huge void and, as a result, women of color in our profession galvanized around the idea of having a safe place and space where they could talk about their chal-lenges at work without judgement and formulate strategies for advancing their careers,’ she recalls.

Having grown up in a predominantly African American community, being in the minority was a new experience for the young lawyer – her community always had an abundance of positive role models.

‘Our neighbors were doctors, lawyers, educators, business owners, and we even had a Black general who lived up the street. It was not until I moved to New York City that I first experienced being a minority or “the only one.”’

‘Based on my upbringing, I knew something was greatly wrong with this picture. I also noted that women of color lawyers were leaving the practice of law altogether. I just be-lieved there had to be a solution and that something had to be done about the problem.’

What started off as a group of 10 women having dinner to discuss their careers and share advice very quickly evolved into a much larger network.

‘This was all before Facebook and LinkedIn. We had no way of connecting except old-school style – face to face and via telephone. My directory (named the “In-House Counsel Women of Color Networking Directory”) would serve as the link to connect us and fix the problems of feelings of remoteness. When I sent my email to the 10 people, they in turn ended up sending it to five people they knew. Well, by the end of the week, we had found 50 women of color attorneys in New York City.’

‘I printed the Directory and made copies of it at Office Depot and added a side VeloBind. I then mailed the 50 women a copy of the Directory. By the end of the month, we had found

100 women – and so on and so on. We connected with women in Los Angeles, San Fran-cisco, Chicago, Dallas, Houston, Washington, DC and Atlanta. By the end of the year, we tapped into 1,000 in-house women of color.’

In 2005, when Haden was working as assistant general counsel at CBS Broadcasting, Corporate Counsel Women of Color (CCWC) officially became a not-for-profit professional trade association.

‘The organization has grown from 10 to over 4,500 members who work in multiple indus-tries and sectors of Fortune 1000 and Forbes 2000 companies around the globe. I created CCWC to fill a void and advocate for the advancement of women of color attorneys in the legal profession. Through CCWC, many law firm women of color partners have been able to create a viable book of business, which has resulted in sustainability. And several of our members have advanced to the general counsel ranks of Fortune 1000 companies (such as Vanguard, Allstate, Albertsons, Denny’s, Mary Kay, Motion Picture Association, Google, just to name a few).’

Currently, Haden serves as the organization’s president and chief executive officer. She also undertakes all chief legal officer duties, including advising on all legal issues, and works closely with the board of directors. Diversity and inclusion starts at the top, and with plans to expand, Haden believes CCWC’s next frontier is to have members serve on the boards of directors of Fortune 100 companies.

We Need to Talk about Race and Ethnicity: A Toolkit

‘We just hired a gentleman of Asian descent who was a food scientist for eight years before he finished law school. I immediately went to offer him a job because it was just unique.’

Gail Sharps Myers, chief legal officer and chief people officer at Denny’s, illustrates today’s corporate drive for better diversity, often as a gateway to diversity of thought – the understanding that a multiplicity of backgrounds will generate a multiplicity of perspectives, acting as an engine for performance, creativity, innovation and, ultimately, more success.

But, as leading general counsel know, diversity is only half the story. Leveraging the collective experience of a diverse workforce is not as simple as hiring different people and alchemizing their perspectives into corporate gold. The secret something, more fundamental than a drive for diversity, is inclusion – creating the environment where diverse people can feel welcome enough to perform at their full potential. And the principles of inclusion are often the same regardless of the type of diversity you are looking to promote.

For Phyllis Harris, general counsel, chief compliance, ethics and government relations officer at the American Red Cross, that means ‘providing an avenue for everyone to thrive in the workplace without thinking about their gender, race, nationality or ethnicity. We provide opportunities for our employees to thrive they will  find the value that they will bring to the organization.’

For the legal profession in particular, the stakes for neglecting inclusion are much higher than the risk of losing out to competitors.

‘To truly have an inclusive representative democracy and to have laws that are embraced and supported by all people governed by that democracy, you need to have everyone in the room, which means you have to have lawyers from every ilk, color, division, religion and gender,’ says Carlos Brown, senior vice president, general counsel and chief compliance officer at Dominion Energy.

‘Those that have access, knowledge of, and facility with the law tend to have and tend to be able to create opportunities that benefit themselves and the people they represent. To the degree that African Americans uniquely, but also Asian and Latin Americans and other ethnic minorities, have faced discrimination with regard to access to law school, or access to the bar or access to certain law firms and certain experiences, they have a different and broader perspective on how to approach legal challenges when you are in a disadvantaged position,’ he explains.

‘Being in the room where it happens – and typically one of the hall passes to get to that room is having access to the law – makes a difference. And for your community and your people and people who may look and speak and have other similarities to you, to the degree that’s been dominated by one societal cleavage explains why, in many cases, laws have been somewhat insensitive to others.’

The arguments for diversity, equity and inclusion (DE&I) are well known, and their impact on organizational performance has been proven. But it is useful to reiterate them, because the first step in any plan for tackling these issues is to know why you want it.

Step one: understand why

‘Let’s be honest, you’re going to have to ask your people to make changes to their behavior, which they may not like. You’re going to have to ask your leadership to start thinking differently. You have to understand why you want to do this – is it because it aligns with company values, is it because your GC really cares about DE&I, is it just because it’s the right thing to do, or is it the business case?’ says Leila Hock, chief growth officer at Diversity Lab, an incubator for ideas to further diversity and inclusion in the legal profession.

‘Your why will drive how you message your work and what that work is, so it’s important to get it right.’

Many organizations were spurred into greater action on race and ethnicity inclusion by the murder of George Floyd. As a wave of protests spread across the US and beyond, conversations about race took on a new urgency. It became clear that passive opposition to racism was no longer enough – it was time for action. As with many individuals, organizations looked deeper inside than they had before, and found that meaningful change required better understanding of the nuances of systemic prejudice and the complex interplay of privilege and bias, both conscious and unconscious.

Above all else, business has had to become brave enough to listen.

Many organizations were spurred into greater action on race and ethnicity inclusion by the murder of George Floyd. As a wave of protests spread across the US and beyond, conversations about race took on a new urgency.

‘Companies are asking questions. People are asking questions. Companies are having candid, open conversations that I could not have imagined five years ago,’ says Kimberly Banks MacKay, general counsel and corporate secretary of West Pharmaceutical Services.

As corporate advisers, says Banks MacKay, in-house counsel are well placed to facilitate conversations and function as agents of change. But, especially for leaders who are also diverse, there can be a cost.

‘Even though it is critical, and even though our role as legal advisors in regard to these issues gives us unique insight, , it can be uncomfortable. I will say, candidly, as a person of color, you are oftentimes one of a few in the room, and it is not always comfortable to have the spotlight on you in that way. But I also feel a sense of responsibility. Sometimes we are the only people in the room to be able to speak to these issues in a very personal way to both educate and influence. If it were comfortable, there would be no growth’

The legal profession is on its own journey towards greater and more inclusive representation of racial and ethnic minority lawyers, both within law firms and corporate legal departments. At the front line of change is the Leadership Council on Legal Diversity (LCLD), an organization of over 400 CLOs and managing partners working towards DE&I in the legal profession. President Robert Grey describes the training the LCLD provides to the next generation of racial and ethnic minority lawyers to foster their success. However, he says, individual preparation is only half of the story. Culture is the other – institutionalizing practices to make them systemic and sustainable.

Don’t change the numbers, change the culture

At the highest levels, the conversation about DE&I might be about strategies, goals, metrics and KPIs. But the workplace, with all its microaggressions, is experienced on a highly personal level – and remembering that in all interactions is the essence of culture.

‘Twenty years ago, if you were being invited to a law firm social event, the invitation might say “Please bring your spouse to this event”’, says Rick Sinkfield, chief legal, ethics and compliance officer at Laureate Education, Inc. ‘I don’t think people meant anything offensive or exclusionary by it, but if you’re in the LGBTQ community, you might be like, well, I don’t have a spouse. I have a partner. And then you wonder, is my partner welcome, or do you have to be heterosexual to attend this event?’

‘Unless that person feels empowered to go to the welcome committee and say, “Hey, maybe we should change that invitation”, then by accident you have sent out a signal. You want these people to stay and be productive and lead your firm, but you’ve kind of given them the cold shoulder,’ he explains.

‘That’s just the little stuff. What about the big stuff? Who gets assignments, who gets to work for which partners, who gets to go on the big trips, who gets to be sent to the Brussels office to learn EU law? It all builds on each other. At every institutional moment, someone has to ask the question: is the way we’re doing things – intentionally or unintentionally – sending a signal that some group isn’t welcome or isn’t on par with the others.’

It comes back to the idea of listening, says Sinkfield: ‘If there are people who are telling you that they don’t feel welcome, you need to listen to them. I think that’s the key to the workplace. Listen to people and try to make the workplace a place where everybody can excel on their merit, and performance.’

Step two: get the right leadership in place

Fundamentally, any good strategy for building inclusion for underrepresented racial and ethnic groups cannot be developed without the input of those groups. Equally, for any kind of cultural change to take root, having the right leadership in place is also essential – and the higher up the executive ladder the better. But whoever the ultimate sponsor is, they must make that commitment personal.

‘You can say that you’re in it to win it, that you have a desire to see a more equitable environment. But what people are motivated by is your conduct – what are you bringing to the table as a leader? Because if you bring your full self to this initiative, with your own commitment, then that will encourage others to do the same,’ says Robert Grey.

Any good strategy for building inclusion for underrepresented racial and ethnic groups cannot be developed without the input of those groups. Equally, for any kind of cultural change to take root, having the right leadership in place is also essential.

Myers has seen the value of this at Denny’s, where the CEO is a diversity champion: ‘As he’s tried to make sure that these issues are addressed throughout the organization, he is very vocal, very upfront, very engaged in all of our employee resource groups. He has empowered his executive team to do what they think is necessary to not only show the new employees and the old employees what our diversity and inclusion engagement is about, but also being totally transparent about the company, its numbers, its activities, and it’s commitment.’

The general counsel is also extremely well placed to spearhead such efforts, as an organizational leader with the ability to drive change, a business adviser with a responsibility to ensure that corporate values, frameworks and actions match, and as a client with the power to drive those values across the supply chain and extend influence beyond the borders of the company.

As a member of the board of directors of the Leadership Council on Legal Diversity, Carlos M. Brown has created a pledge, setting out his DE&I leadership goals at a granular level. They include having a DE&I committee specifically for the law department that provides oversight and engagement of the team’s efforts, while also requiring leaders within his department to submit their own personal diversity plans in which they identify between three and five specific actions that they will own.

Skin in the game

Personal commitment can manifest in many ways, from performance management to personal choices, and leaders who are diverse themselves have the opportunity to be the crest of the waterfall in ways that feel most personally meaningful.

Says Ashley Page, chief compliance officer at Endeavour and former general counsel at Learfield: ‘I have got to a point in my career where I feel strongly that it is my responsibility to bring my authentic self to work every day and set that example for others. I wear my hair in a natural style – I noticed when I joined the team at Learfield IMG College that other Black women in the office started feeling more comfortable wearing their hair in those styles.  It is not just about being comfortable in my own skin, it is about a responsibility that I have to lead by example in bringing my authentic self to work and hit difficult conversations head on. Just by having those discussions I set the tone and the example for others around me.’

For all leaders spearheading DE&I efforts, making a personal commitment might involve risk, cautions Robert Grey – but that is part of the personal and organizational stretch required.

‘You’re going to have to risk some personal capital in this effort to show people you’re in it for the long haul. And if you don’t risk anything, nobody else will either,’ he says.

That risk could be reputational, loss of following, loss of face if others are critical of your strategy. But such risk, he says, can be minimized by another of his pillars for a successful strategy – transparency. In this context, transparency could be the support in numbers of others of a similar stature in other organizations being open about their successes, or their attempts.

Step three: be transparent

Myers agrees about the impact that transparency can have, and she has seen it on the ground at Denny’s.

‘You have to have transparency into pay and what you’re doing around your employees. So it’s terribly important, on an annual basis, to do a pay equity study. We do that at Denny’s and have been doing it for a number of years. We report that study to the board and to the executive officers of the company,’ she explains.

‘I think it’s also incredibly important, and it’s kind of new, to have a human capital report. We will be publishing our first in January, and it’s going to have full transparency into our organization, what our numbers look like and what we’re doing to make sure that we either maintain the inclusive environment that we have or that we chase after those areas where we think we have an opportunity.’

‘You have to have transparency into pay and what you’re doing around your employees.’

For Grey, transparency includes the process of formalizing the leader’s personal commitment by codifying goals in a written form (as with the pledges created by Brown along with roughly half of LCLD members) and displaying those goals to create a sense of accountability.

But when creating a culture of inclusion in in-house legal teams, it might not be obvious where to start. Why? Because many in-house teams suffer from of a lack of data.

Step four: gather data

‘Whereas law firms routinely submit their numbers with regards to the make-up of their teams and leadership, in-house legal departments don’t. There are some organizations that collect that information but, on a large scale, there’s no great way to understand specific gaps in the in-house legal community as a whole,’ says Hock at Diversity Lab.

‘Legal departments are… often made up of and easily attract white women. But when we start to break it down into underrepresented racial and ethnic groups, LGBT+ lawyers and lawyers with disabilities, they have more challenges – and there are certainly challenges around underrepresented racial and ethnic groups,’ she explains.

Hock advises legal departments to find a way to measure where the biggest gaps are, while Valerie Portillo, Diversity Lab’s legal department and law firm integration strategist, also emphazises the importance of simply asking questions, unpicking facts from assumptions:

‘When you start asking questions, you start to uncover things that you were not necessarily aware of. We had a lot of conversations with legal departments that have started asking these questions and they said, “Oh, this partner who we had seen as falling into the faithful lieutenant role is actually the person that is our go-to, so we want to shift credit to that particular person”,’ she explains.

‘What we’ve seen in the legal industry is very slow movement of actual increased underrepresented racial and ethnic groups, because often people want to hire and then they don’t change their practices, they don’t make people feel like they belong and then they just go elsewhere.’

Hock and Portillo stress that the strategic goal should be to establish inclusive structures and practices, which will then attract diverse talent, rather than bluntly targeting underrepresented groups.

‘What we’ve seen in the legal industry is very slow movement of actual increased underrepresented racial and ethnic groups, because often people want to hire and then they don’t change their practices, they don’t make people feel like they belong and then they just go elsewhere,’ says Hock.

‘Look at your current population, make sure you’re not losing your underrepresented lawyers at a higher rate than your overrepresented lawyers. So start with the data and the metrics and go to where that takes you.’

Step five: identify areas of impact

The leader must identify areas of potential impact where change can and will occur, says Grey in another of his pillars for DE&I strategic success. Whatever those areas are, they must be explicitly said and seen.

‘We can’t account for it unless we know what it is, and we can see it, and so we think the idea of measuring ourselves against those pledges and those initiatives we’ve chosen, is also an important tool in the growth and the sustainability of these initiatives.’

We return to the importance of transparency, which Grey sees as an active concept, involving discussion, feedback and iteration.

‘To make [DE&I] scalable, which is a goal of ours, is this idea of socializing these ideas, of crowdsourcing the better practices. And so that’s the stage we’re in now. Now that we are getting people to do these pledges, let’s stay one step ahead of the curve by saying to ourselves: how can we socialize these ideas, how can we elevate the discussion to not what we intend to do but what we are actually doing? Putting those practices in front of people and opening them up for discussion, being critical of them, both internally and externally, will allow us to create the improvement that needs to take place,’ he explains.

Step six: measurement

Grey’s final pillar is measurement, and he is supportive of KPIs for DE&I. But he also is an advocate for peer review in this space.

‘We have operated in silos for a long time. So you ask a major company, “How are you doing?” And they say, “Well, I think I’m doing fine.” “How do you know?” “We’ve got more diversity than we had last year.” Ok, that’s progress,’ he says. But measurement should not stop there.

‘Are you doing the most you can do? Are you operating at the highest level you can? Are you creating a sustainable and systemic approach to the problem you’re trying to solve? What’s the review mechanism for your work? Is it your standard, or is there an industry standard? Is there a peer standard? What are we working with? I think all that has yet to come because we’ve operated in silos so long that we’ve never had a measurement outside of those silos to determine if my initiative is operating at peak efficiency.’

Grey’s ‘socialization’ of the review process seeks to transform it from a purely top-down process to something akin to an agile one, where peer discussions offer feedback and a chance for iteration.

A good initiative should embed structure into processes and talent systems. In an echo of Robert Grey’s pillars for a DE&I strategy, Leila Hock at Diversity Lab believes that a good initiative should include structure, accountability, transparency and collaboration.

‘I think that this idea of bringing the initiatives to a larger discussion group allows us to be critical, helpful but, more importantly, to not have everybody trying to invent the same wheel over and over and over again,’ he says.

Building a culture of inclusion is not a quick process because organizations need to challenge themselves. That could take years. But it doesn’t mean that organizations should see that culture change in a different way to other change management processes – like technology transformation, says Grey.

‘“We’re going to be the best at technology than any other company”, and when you decide you want to do that, guess what? You just unleash all of the talent and authority and power, and you drive it. You start saying “I want know what we’re doing about this.” If you hold people to that same standard on diversity, then we will drive a more productive effort at making it happen.’

He adds: ‘Part of the storyline is if you apply the principles of success to diversity that you apply to other areas that you consider a challenge, you will be successful, because we know our own track record at doing these things.’

We’ve seen six steps towards a framework for inclusion, comprising understanding, leadership, transparency, data gathering, targeted potential impact areas, and measurement. Next comes the task of populating that framework with the meat of a DE&I strategy – the initiatives.

A good initiative should embed structure into processes and talent systems. In an echo of Robert Grey’s pillars for a DE&I strategy, Leila Hock at Diversity Lab believes that a good initiative should include structure, accountability, transparency and collaboration.

Cultural competence

Improving D&I through recruitment requires some degree of cultural competence, says Grey: ‘You can’t just say, “I want people from the Middle East” if you don’t know anything about people from the Middle East in your organization. Or, “I love African Americans, I’d like to have more of them”. If you don’t know anything about their plight and about the obstacles they’ve had to deal with, then how are you in your organization going to develop those individuals in a meaningful way?’

First of all, it’s essential to go where talent is, and organizations can expand the target talent pool instantly by going to the right colleges and law schools and seeking out the best candidates. But exploding structural inequalities that impact the talent pipeline takes investment in potential talent before the point that they are ready to enter the workplace.

Mentoring can be effective, says Brown. He recalls his own time as a law student preparing for the LSAT exam, when he happened to bump into, the now Chief Justice S. Bernard Goodwyn – the only African American lawyer he knew – in the law library. Justice Goodwyn advised him of the availability of a grant to partially fund LSAT preparation classes, something he was entirely unaware of.

‘My score increased by 20 points between my initial practice test and the actual LSAT. That LSAT score allowed me to get into Harvard, UVA, Duke, Georgetown, and a number of other very prestigious law schools, and so made me a candidate for significant scholarships. But for the fact that the one black lawyer I knew, Bernard Goodwyn, saw me in the library that day, I never would have known of the material difference that that prep class would make in my career and life. I likely would not have prepared, likely would have underperformed, and likely would not be here talking to you today,’ says Brown.

The intersectionality of diversity is an important factor, with economic disenfranchisement and other factors often overlapping with racially and ethnically diverse candidates. Brown is vocal about the need for underrepresented racial and ethnic minority lawyers to receive support throughout the entire process of qualification, whether applying to law school, achieving at law school, navigating the world of recruitment, and then getting the market exposure and visibility to succeed in their careers. Otherwise, he says, the structural obstacles faced by would-be lawyers without prior experience or exposure to the law, can stymie even the brightest sparks. Internships and sponsorship for diverse student candidates can be effective.

Inevitably, DE&I is a chicken and egg story – if you build an inclusive culture, diverse people will come, but is it possible to create – and maintain – that truly inclusive culture without the input of diverse people in the first place?

When it comes to drafting job postings, it is important to not accidentally screen out diverse candidates by being needlessly narrow in the requirements – for example industry experience or length of service – and to focus instead on qualities, such as leadership, initiative, versatility, creativity and energy. Vacant roles should be advertised outside the traditional channels, in places that encourage a diverse slate, such as colleges with a historical representation of the groups you are looking for, affinity group bar associations, and websites of relevant organizations.

When the résumés come in, it’s important that the selection process and interview panel are staffed by a hiring team and interview panel reflecting different races and ethnicities, as well as genders, and even different parts of the business. The decision cannot be influenced by one perspective if all candidates are to have a fair chance.

Inevitably, DE&I is a chicken and egg story – if you build an inclusive culture, diverse people will come, but is it possible to create – and maintain – that truly inclusive culture without the input of diverse people in the first place?

This process is a journey along a continuum – and it’s crucial to meet people where they are, which will depend on where they’ve come from along that journey, says Grey.

Perhaps key to beginning that journey of inclusion is to confront unconscious biases and turn a room of people with unacknowledged prejudices into a room of allies. But to uncover those biases, you need training. Lots of it, potentially.

‘Training and exploration of unconscious biases, not just in a two-hour or three-hour seminar, but in an ongoing way that will have stickiness within an organization is key, because that’s where you have to start. You have to change the mindset. Once you change the mindset or open up the mindset, then the real work can begin,’ says Myers.

Mentoring, sponsorship and allyship

Mentoring and sponsorship are important tools in the inclusion kit, to help racial and ethnic minority associates build on their strengths, navigate the cultural landscape of the company, and benefit from the various experiences of those who have succeeded.

‘That does not necessarily mean a mentor of the same race or ethnicity. I can say from my own career that some of my best mentors were white men, because they were very interested in understanding my challenges – and I was not shy in telling them about the obstacles that I was facing as I was practicing law,’ says Harris.

But just having a mentoring or sponsorship initiative in place does not mean that beneficiaries are effectively prepared for success if that initiative is not properly devised and implemented. This point speaks to the importance of Diversity Lab’s mantra of structure, accountability, transparency and collaboration.

‘An underdeveloped mentor or sponsorship program just says, “Valerie, meet your new mentor, Leila. Develop a relationship.” And that’s where actually a lot of mentoring programs stop,’ says Hock.

‘There’s no structure to how the relationship should go, there’s no accountability to make sure that the mentor and/or the sponsor actually checks in with the protégé or mentee, there’s no transparency in really understanding how that relationship is going, and there’s no collaboration amongst the mentors or sponsors or protégés.’

Phyllis Harris adds that mentorship by itself is not enough – there must also be structures in place to make sure that diverse colleagues are getting an equitable bite of the pie.

But just having a mentoring or sponsorship initiative in place does not mean that beneficiaries are effectively prepared for success if that initiative is not properly devised and implemented.

‘The organization needs to ensure that these individuals are getting the assignments. That allows for visibility. It’s not enough to invite people to the party, you’ve got to go across the room and ask them to dance. You ask them to dance in the legal profession when you ensure that people are getting good assignments and they are getting good, constructive feedback. The worst thing you can do is bring people into the organization and set them up to fail by not sharing with them how they can improve, as well as sharing with others when they do really good work,’ she says.

Some cross-over between mentorship, sponsorship and allyship may occur, but fundamental is advocacy, which points back to the strategic pillars of personal commitment and putting skin in the game when working to increase inclusion of racial and ethnic minority lawyers in-house.

Hock describes ‘Ally Action Pledge’ initiative, which challenges law firm partners (though she stresses it could work for senior corporate counsel) to sign a pledge, committing, for example, to advocating on behalf of a lawyer from an underrepresented group, introducing them to high profile people, taking an active role in their work assignments, and making sure they get the exposure, visibility and experience that they need.

‘It’s important to make sure we involve underrepresented racial and ethnic lawyers in these initiatives and strategies and initiatives, but they can’t be doing the work. We have to get allies involved,’ she says.

‘An inclusive workplace is better for everyone, it’s not about stealing their role or opportunities, it really is about inclusion for everyone.’

Succession planning

At Dominion Energy, Carlos M. Brown has worked to ensure that diverse counsel don’t hit a glass ceiling within his in-house team by embedding inclusion into departmental succession planning. All succession plans, including those of his deputies and managing counsel, must be 50% diverse before he signs off on them.

‘If that means that you have to identify a candidate who you might say is not ready now, then that’s fine, but by putting them on that list you are committing as a leader reporting to me that you are going to undertake the steps you need to get that person ready to be a candidate to compete for your job. This takes away the excuse that there is a pipeline issue. Because no women or people of color  or people of color are ready,’ says Brown.

‘That circumstance is true for everyone until someone invests in them to get them ready. For years the excuse has been used that we don’t have any “ready-now” candidates. But the candidates that are ready now are ones who someone identified three, five, seven, ten years ago and said “Hey, we’re going to line this person up with the experiences and the exposure so that they can one day be a deputy GC or a GC in this company.” That same type of deliberate intentionality should happen for women and underrepresented candidates, and so that’s something that we’ve mandated.’

Initiatives: the supply chain

A similar long-term intentionality can be applied to peer pressure along the supply chain – an outlet where general counsel keen to promote DE&I in the wider legal profession have much agency. Corporate counsel can be more specific than demanding racial and ethnic minority lawyers on their work – they can demand that they be supported, developed and well enough exposed to become the experts that clients demand.

Says Grey: ‘I don’t want you to put a minority lawyer or an ethnic minority lawyer on a case because they are ethnic minority. That doesn’t help me. What I want to know is who’s in that practice area whose job it is to do that kind of work and are they doing my work? That is turning the aperture to be more focused.’

Diversity Lab’s Hock acknowledges the difficulty for in-house teams to establish these new working relationships with longstanding outside counsel. In a bid to overcome this, Diversity Lab has an initiative called the ‘Diversity Dividends Collective’, which tracks demographic data of outside counsel teams, revealing to in-house teams who is receiving financial or expansion credit for leading their matters. The organization hopes that this tool will help legal teams work in partnership with their law firms to achieve better results, rather than point the finger.

Better collaboration is both the reason for diversity, equity and inclusion, and the solution at the heart of strategies to achieve it. It means reaching out, accessing the knowhow already out there, gathering best practice, and working to move the conversation on, and on again.

‘Instead of saying, “You need to do better”, it’s saying “Look, these are your gaps, we understand them, how can we help you?”’, says Hock. ‘It’s recognizing that law firms play a role, and it is not enough to just incentivize them or say “Give us your data and we’re going to make decisions based on that”. There needs to be a consistent dialogue between legal teams and their law firms.’.

‘We’ll only see true progress as a legal industry if we see ourselves as just that, a legal profession, not us and them, a legal profession working together hopefully to change the entire profession and the systems of the entire profession.’

Dominion Energy has its own tracking system for outside counsel, which encourages billable credit to be given to diverse lawyers by tying part of the legal department’s bonus program to a point system predicated on number of matters given to, or number of hours spent by, diverse outside lawyers.

‘We’ve been doing this now for about four or five years and we’ve grown our diverse spend. About 20% of our legal spend now can be credited to minority, veteran-owned, women-owned firms, or diverse lawyers at majority firms,’ says Brown.

Putting the pieces together

Better collaboration is both the reason for diversity, equity and inclusion, and the solution at the heart of strategies to achieve it. It means reaching out, accessing the knowhow already out there, gathering best practice, and working to move the conversation on, and on again.

‘Our suggestion is to be bold, and you can’t be bold unless you know that there’s something better than what you’re doing out there,’ says Grey.

‘Is it uncomfortable? I think it’s a little uncomfortable, because nobody’s been doing it in the past. So, we’ve got to get to a different level of comfortable about how we work with this area. I think we come from not being comfortable at all, to now we think we’re comfortable because the status quo in a sense affords us some protection against doing more. And I think we’ve got to guard against that and say the status quo is not good enough.’

Racial Equity in Numbers

“We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty, and the pursuit of Happiness.”

In 1776, the men who drafted these words in The United States Declaration of Independence did not believe them to be true for Black America. It would be almost 90 years and a civil war later, before African Americans would be granted basic human rights.

Fast forward to 2022 and the fight against racial inequality and systemic racism continues. In response, corporate America reviewed their own striking race gap. Organisations promised to look internally and examine their role in perpetuating inequities in hiring, pay, promotion and fostering toxic work cultures.

Two years since the pandemic began diversity advocates remain optimistic, even though the data paints a discouraging picture of progress.

The land of the free

Racial diversity among Fortune 1000 general counsel declined over the past year according to the  Minority Corporate Counsel Association’s (MCCA’s) Fortune 1000 GC Survey. The annual survey, which tracks the representation of historically underrepresented racial and ethnic general counsel, found that Black General Counsel representation fell by 1.7%.

The biggest dip came from general counsel seats held by Black men, with a net loss of three (6%), while Black women remained constant, holding the same share of GC spots as in 2020. Jean Lee, president & chief executive officer at the MCCA, says the survey shows a disappointing stasis in the representation of Black and minority corporate counsel.

‘The lost opportunities for change, coupled with the decline in representation among Black male lawyers are the biggest surprises of 2021. Despite George Floyd and the talk of America waking up to become enlightened on issues of race; it clearly did not happen as much as we would have preferred. I did not think everything was going to change, but there was such an outcry from the corporate community for progress that we would have remained flat in terms of overall data and did not expect a decline. What we can see is that companies who pledged have not followed suit yet or have been slow to move forward.’

Amid the uncertainty of the pandemic, one of the reasons for the drop of diversity among GC roles at Fortune 1000 companies can be attributed to a stagnation of the job market.

Amid the uncertainty of the pandemic, one of the reasons for the drop of diversity among GC roles at Fortune 1000 companies can be attributed to a stagnation of the job market. In 2020, job movement and staff turnover slowed to historic lows. This much is clear from the MCCA survey, with only 139 GC roles being appointed in 2020, compared to 216 new appointments a year earlier.

Ashley Page, SVP, chief compliance officer at Endeavor, believes this may in part account for short-term stalls in equity led by the hiring market. ‘When you focus on Fortune 1000 companies there has not always been much movement, but we are seeing even less movement during a pandemic. I believe this is because we are going through scary times and the last two years have not been a great moment to jump jobs.’

‘For minorities, who often face greater challenges stepping into GC roles, this means less access to those coveted positions. By definition, if there are fewer opportunities overall, there are even fewer opportunities for minorities in particular.’

However, adds Lee, there has been positive news among the dismaying numbers: ‘One of the more positive factors as to why this happened is that a lot of in-house counsel are moving to less traditional Fortune 1000 companies as they see more opportunities there. Another reason is that there are a lot of people who have retired, maybe unexpectedly, during the pandemic. These unexpected departures may have shown that companies have not done a great job in developing a pipeline for Black leaders to move up into the general counsel role.’

Closing the gap

Historically progress towards diversity, equity and inclusion in the legal profession has been very slow over the past decade. According to The American Bar Association’s (ABA)National Population Survey, diverse lawyers made up 11.7% of the legal industry in 2011. Ten years later, they represented 14.6% of the profession.

African American representation has been particularly low relative to US demographics: in 2021, Black lawyers made up 4.7% of the legal profession  but 13.4% of the US population.

This gap, says Carlos Brown, senior vice president and general counsel at Dominion Energy, highlights the ‘myth of meritocracy’. Invisible gates such as the college or law school a young lawyer attended have a far bigger impact on their career than is commonly acknowledged.

‘The truth is that these steps have been created and do not reflect how true society works. Those who have benefited from financial and academic resources from an early age get an advantage and essentially the gap between those who have and those who have not widens.’

‘I am the first person in my family to go to law school and I can see there are real structural advantages that exist between people who have been exposed to the law before than those who are starting new in the profession. The barrier to entry is getting harder.’

It was no surprise then that the ABA’s ‘Profile of the Legal Profession 2021’ showed the opposite disproportionate population trend for white men and women in law. In 2021, 85% of all lawyers were documented as being non-Hispanic White in the legal industry. By comparison, 60% of the US population were documented as non-Hispanic White.

‘I am the first person in my family to go to law school and I can see there are real structural advantages that exist between people who have been exposed to the law before than those who are starting new in the profession. The barrier to entry is getting harder.’

The accessibility to opportunity has a trickledown effect for racially diverse and minority lawyers. Ashley Page explains, ‘A lot of the most coveted in-house jobs were not accessible or available if you did not have experience at a law firm of a certain prestige. These things mean that jobs are not necessarily equally accessible to members of a certain minority group because some jobs tend to hire based on where you went to law school.’

‘Opportunities to go to the most prestigious law schools are not necessarily available on an equitable basis to members of all minority groups for a range of reasons. This may include challenges with standardised testing, financial constraints and biases.’

Details in the data

Lawyers of colour are less likely to work at law firms, according to the ABA’s ‘Profile on The Legal Profession 2021’, instead they are more likely to work for government agencies or in-house. White lawyers were 40% more likely to be working in law firms compared to 24% of Black Lawyers. In contrast, Black lawyers were 15% more likely to be found working as in-house counsel and 28% more probable to be working at government agencies.

Even though representation of minority lawyers continues to lack at law firms, it is interesting to note a 2020 Report on ‘Diversity in US Law Firms’ from the National Association of Law Placement which found for the first time ever, more than 10% of law firm partners across the United States were lawyers of color.

‘It is really positive to see that Black lawyers have the highest racial representation at corporations compared to other historically under-represented racial and ethnic groups, especially when looking at general counsel positions, but there is room for law firms to do more,’ explains Lee.

In addition, when it comes to the industry in which Black lawyers chose to work, financial services and tech ranked the lowest. According to the MCCA, the Fortune 1000 can be broken down into eight sub-groups: technology, business services, consumer services, health care, CEM (Chemical, Energy and Materials), industrial services and transportation. The survey found that African American GCs in Fortune 1000 companies made up 5% in the tech industry and 3% in business services.

The reason behind this may be based upon the cultures prevalent in those industries. ‘Financial services are traditionally white male dominated industries. There is an old boys’ network that is very hard to penetrate. That is why in the United States we have a Congressional Black Caucus for the tech and finance industry that specifically looks into diversity.’

Part of closing the racial gap, means acknowledging existing inequities and working towards bridging that hole by having uncomfortable conversations. A positive trend to rise since the pandemic is that older attorneys are finding it easier to have difficult conversations about racial justice issues according to the ABA’s ‘Practice Forward Survey’,

It was recoded from the 4200 lawyers surveyed, 53% were having talks about racial injustice issues with their colleagues more often than they did a year earlier. A third of those lawyers (34%) said the racial injustice discussions were easier than one year ago. Whereas only 10% of respondents said those conversations were harder.

Pandemic mothers

Women, and especially women of colour have been disproportionately impacted by the pandemic. Data released from the United States Census Bureau revealed that almost 3.5 million mothers left the work force in 2020. This large exodus was caused in part by child care and school closures.

The pandemic, says Lee, has been particularly damaging for women of colour. ‘When I connected with women general counsel, it is evident that women have taken on the primary care responsibilities of parenting during this pandemic. Many lawyers of colour, whether Hispanic/Latina, Asian or Black, experience multigenerational family challenges. They are the ones who have to step up and leave demanding jobs to take on home responsibilities especially in the first year of the pandemic where external support systems were not available.’

Between October and November 2021, the US Bureau of Labor statistics reported the labor force participation for Black women dropped drastically by 60%.

These numbers are not a surprise says Gail Myers, chief legal officer, chief people officer & secretary at Denny’s. ‘All women face gender issues when entering the workforce in a legal profession. It is true of working at a firm as it is working in a corporate environment. Unless there is a purposeful move on the part of executives and their boards to make change these numbers will remain the same.’

Between October and November 2021, the US Bureau of Labor statistics reported the labor force participation for Black women dropped drastically by 60%.

However, the pandemic and its challenges have brought one major advantage to women. The rise of remote working has made more jobs available to minority candidates explains Ashly Page, who has been working at global sports, media and entertainment company Endeavour remotely since the pandemic began.

‘My personal experience has been that the remote work flexibility that the pandemic kind of forced on the workplace has personally benefited me. I think it has made more jobs available to more minority candidates that were not previously there.’

‘So now because of the pandemic attitudes towards remote work and teleworking have made it possible for minority employees to consider jobs that are based in locations that they would not otherwise have previously thought about,’ says Page.

Women in the pandemic, whether they were laid off or furloughed, have had to be pro-active in how they have dealt with challenges. In some cases women have become more cautious about the jobs they accept and the companies they choose to work for.

‘People are becoming a lot more critical of companies and how equitable and inclusive are their polices. Women are not afraid to walk away from opportunities where in the past they would have killed to have,’ explains Page.

We are all in this together

Although there has been significant strides towards racial equality in the legal profession, one thing remains clear, more still needs to be done. Capitalising on the DE&I movement and pushing for real change is so important.

‘Being a minority is trendy right now, like we are in Vogue. So there are definitely a lot of company initiatives out there that have felt more like they are about publicity than about the work being done,’ says Page.

Kudos to the companies that are really trying to do the work of understanding the things they need to change to become more diverse, equitable and inclusive. That said, there are companies that have seized the moment to make splashy media statements and pay lip service.’

One of the best ways to avoid companies from capitalising on this moment is to hold them accountable. That is why benchmarking and collecting data on racial demographics are so important explains MCCA’s Lee.

‘There is no way for us to say there is no diversity if we do not benchmark the data. It also helps us determine which areas in the industry we need to improve. The most important reason to gather the data is so that we have concrete numbers to support an assertion. When people of colour and other under-represented groups share their experiences, it is always good to have the data to support what they are saying. That way it is about facts and not only about how they feel.’

Despite the turbulent two years, and slow evidence of DE&I growth in corporate America the fight towards racial equality continues to stand strong summaries Lee: ‘It is important that we continue to hold up a mirror to society and to corporate America and say, we are not going to let you forget the commitment you made for black and other historically under-represented racial and ethical people in this country.’

‘We are not going to let you forget that black lives matter, and you need to show us how it matters to you.’

Jean Lee, President & Chief Executive Officer at Minority Corporate Counsel Association

‘Why would I enter the legal profession if there are not any people who look like me?’

This is the most common question students of colour have asked Jean Lee, president & chief executive officer at Minority Corporate Counsel Association (MCCA). Having spent 14 years as a litigator in New York City, Lee understands the importance of diversity in the legal field.

‘This is why representation is so important. Building a pipeline, mentoring and showing a path forward for young attorneys from under-represented backgrounds is vital. The whole profession benefits from having diverse perspectives and voices.’

For the past six years Lee has been leading the MCCA’s mission of advancing, hiring, retaining and promoting diverse layers in law departments and firms. Since 1997 the company has also been publishing, researching and providing professional development opportunities.

‘We started out as a traditional non-profit organisation focused on research and education. However over the last five years our operations have shifted to include strategic advisory services, toolkits and workshops. One of the focuses for the MCCA is the c-suite. We hope by having more diverse lawyers at the top there may be a trickle down effect,’ says Lee.

One of our most important research surveys that is conducted annually is the Fortune 1000 GC Survey. The MCCA collects data from leading corporate counsel with the aim of benchmarking and tracking the state of DE&I within leading corporations. This has been done since 1999 and what the data universally shows is that although DE&I within the legal profession has been improving, progress is slow.

‘Although we made some progress, the results of the survey this year were disappointing. There were a lot of grandiose statements from corporate America and so I thought we would have made bigger improvements,’ says Lee.

However, it is important not to lose faith as there are still many general counsel within the community who are working towards improving the profession. Lee explains, ‘We have some amazing leaders in the community that are holding themselves accountable and putting their metrics out there. They are providing updates to their commitments and they are the ones pushing the needle forward.’

Black General Counsel 2025 – An Initiative for Change

In 2017, it started out as a challenge put forward by Ernest Tuckett, who [at the time was general counsel for the Americas region of a chemical company] is currently vice president and general counsel of Verisign, to his colleagues in the Black general counsel community. The goal was simple – increase the number of Black general counsel and chief legal officers in large corporations with the initial goal of increasing the number in Fortune 1000 companies from 38 to 50 by the year 2020, and from 50 to 100 by the year 2025. Aiming for an incremental increase to 5% and 10% Black representation in the most senior corporate legal roles in under ten years may sound like a modest target but, as Tuckett and his colleagues found out, in a profession like law even modest change can be hard to come by.

To gather momentum behind his initiative, in 2018 Tuckett teamed up with April Miller Boise, currently executive vice president and chief legal officer at Eaton Corp. Together they co-founded the Black General Counsel 2025 Initiative (BGC 2025), which has an advisory council of over 20 leading Black general counsel and corporate counsel leaders aiming to help high-quality Black in-house lawyers make the move into leadership positions.

In 2020, the murder of George Floyd – and the protests that followed – brought the lack of boardroom diversity into sharp focus. It was, says BGC 2025 member Phyllis Harris, who is also general counsel, chief compliance, ethics and government relations officer at the American Red Cross, a tragedy that forced corporations to acknowledge their responsibilities to Black communities.

‘Unfortunately, sometimes it takes an action-forcing event for people to understand why we need to bring a full diverse spectrum of people into our organizations’, ‘It was a wakeup call for companies to ensure they have equitable policies and practices,’

Seeking to turn tragedy into action, BGC 2025 has already built up a formidable steering committee. GC hears from some of its leading figures on how they creating a network to lift diverse talent and why improving retention, culture and the pipeline are crucial to creating lasting change.

Where it starts

For any underrepresented group, visibility is essential. For BGC 2025, drawing attention to Black leaders in the legal profession and across the C-suite is itself an important political intervention. However, says BGC 2025 co-founder Ernest Tuckett, to bring about real and lasting change the in-house profession needs to provide a pipeline for up-and-coming diverse attorneys.

‘I believe this initiative will inspire more lawyers coming up the ranks to consider becoming a general counsel. From the initiative they can get a realistic roadmap of how to get there and understand the various paths GCs have taken to reach that level,’ says Tuckett.

There is no one path for lawyers to become GCs, instead there are a variety of identifiable and definable skills and experiences that will make people better candidates. We have identified those skills in our programme. We have created a community to build a stronger pipeline.’

Specifically, the BGC 2025 initiative provides a platform for diverse attorneys who are leaders in their own right to connect with more established and senior leaders in corporate America, including current and former Fortune 1000 GCs and board directors.

To bring about real and lasting change, the in-house profession needs to provide a pipeline for up-and-coming diverse attorneys.

The plan as set forth by the group is to: identify all current and former Black GCs in Fortune 1000 companies; create an ‘Ideal Core Criteria’ to be a successful GC; use that criteria to identify “ready now” Black GC candidates; and then connect those candidates with mentors, opportunities and recruiters.

“At the same time, we started reaching out to the community for people to self-identify that they were ‘ready now’ for a general counsel role at a Fortune 1000 or equivalent company, based on the criteria on our website (www.blackgc2025.com). As a result, we have over 40 “ready now” Black lawyers in our cohort,” says Tuckett.

To prepare these lawyers for general counsel opportunities, the cohort participated in training sessions and received mentoring from Fortune 500 general counsel, board directors, executive coaches, executive recruiters and other prominent business leaders.

Through the pipeline

Within the legal profession, just getting a foot in the door can be challenging for minorities. To become general counsel – let alone at a Fortune 1000 company – requires not only an elite education and decades of experience, but often also a strong peer and mentor network to draw on for advice and support. Addressing the wider and systemic issues that can hold back minority candidates is a long process, but, says Keir Gumbs, chief legal officer at Broadridge Financial Solutions, organisations can do more to help attorneys get on the career ladder.

‘Many organizations talk about the challenges they face with respect to the pipeline, and that is not limited to law,’ But there is a counter narrative with respect to the common pipeline – opportunity is not distributed evenly, but talent is. There are people with all kinds of backgrounds that have tremendous talent and potential, but they do not necessarily get the chance to show or develop it.’

In order to change the diversity at c-suit the pipeline to the top for diverse talent needs to strengthen. This has been a primary goal for the Black General Counsel 2025 initiative since its inception.

‘The initiative is really about identifying diverse talent to the recruiters because a lot of companies hiring often say that they do not know how to find diverse talent. Well, diverse networks are a way to find diverse talent. Sometimes you have to spoon feed the people searching for diverse talent,’ adds Tuckett.

‘There is a huge pool of diverse lawyers, and it has been very pleasing to find so much rich Black leadership talent in the profession. It proves the point that when you go looking for diverse talent specifically, you will find it.’

To become general counsel – let alone at a Fortune 1000 company – requires not only an elite education and decades of experience, but often also a strong peer and mentor network to draw on for advice and support.

But fostering this talent and enabling them to be in the mix for executive level jobs consistently requires a lot of intentional effort. Networks focused on bringing opportunities to candidates are pivotal to bridging the pipeline gap.

‘Networks are the only way that I personally believe things really happen,’ says Tuckett.

‘Especially at the executive level, the knowledge of a job vacancy is usually only known by the company and the recruiter. The recruiter will start calling top level general counsel who they know to see they are interested or if they will recommend someone for a position.’

‘So, if we focus on the current and former Black general counsel as a key cog in that network – as well as other general counsel allies who are not Black – we can ask them to feed the knowledge of GC opportunities back into our network.’

Building a community that promotes pathways for diverse lawyers is not only about making diverse talent accessible, it is also about making them visible. The BGC 2025 initiative, along with other minority groups such as the Hispanic National Bar Association (HNBA) and National Asian Pacific Bar Association (NAPABA) also utilise networks to build pipelines and improve visibility.

Gain and retain

Yet, to see more diversity within the c-suit recruitment is only half the challenge. Being able to retain a diverse workforce is equally if not more important.

‘You can hire as many people as you want to hire, but if you cannot keep them, it is a wasted cycle,’ explains Gail Myers, executive vice president, chief people officer and secretary at Denny’s.

‘Retention is a big deal from my perspective. Good retention prevents companies from going  through a cycle of hiring and reinvesting multiple times to fill a single role.’

Also as a member of the BGC 2025 initiative, Myers admits when it comes to raising the number of Black GCs in Fortune 1000 companies, action is required from organisations to make minority groups feel more included.

‘What is missing from the retention equation is the feeling of belonging. Unless you are purposeful about making sure everyone feels like they belong, you are going to lose people as they move up the ranks,’ says Myers.

A sense of belonging can also be fostered by visible role models. Seeing lawyers from diverse backgrounds in leadership positions signals to young attorneys that this law firm or this company is accepting of diverse talent.

‘Many people of color who I know gravitate to a workplace where there are others who look like them – especially in leadership positions,’ explains Tuckett.

‘Mentors will show you where the door is, but sponsors will open that door and turn on the light when you walk in.’

‘There is a sense of belonging and inclusion because if an attorney sees a leader that looks like them, they think it’s possible to move up at that company. If someone who looks like me can get promoted here, then maybe I can, too.’

For Lisa LeCointe-Cephas senior vice president, chief ethics and compliance officer at Merck Sharp & Dohme Corp, networking has been instrumental to moving up the corporate ladder.

‘I would not be where I am today without networking. Mentors as well as sponsors are so important. Mentors and sponsors are different, and both required. Mentors will show you where the door is, but sponsors will open that door and turn on the light when you walk in,’ says LeCointe-Cephas.

‘It is really important for people of colour and underrepresented ethnic groups to have a strong sponsor who is going to walk into that room when you are not there and put your name forward for leadership positions.’

Cultivating culture

Part of retaining diverse talent is creating an inclusive company culture that ensures minority hires have access to the same opportunities as the majority.

‘The environment and culture of an organization is critical. No matter how good an organisation is on paper, no matter how good their business model is, at the end of the day businesses rise and fall with culture,’ says Keir Gumbs.

As former vice president and deputy general counsel at Uber Technologies Gumbs has witnessed first hand what a welcoming and inclusive environment can mean for diverse talent.

‘Uber made it a point to make sure that diversity was core to all conversations, all activities. It really can make a big difference in making people feel welcome and in inspiring employees within the organization to grow,’ he says.

Although culture can trickle down from the top, it is also a key component for companies to consider during the hiring process.

Carlos Brown, senior vice president and chief compliance officer at Dominion Energy believes it is important to cast a wider net and to consider more than just work experience when building a team.

‘I have been in an organization that only recruits for expertise. But what that company then demonstrated is that you can have someone in a certain practice area of 20 years that, has subject matter expertise but no leadership skills that your company can benefit from,’ explains Brown.

‘But when you are building organisational culture attitude, aspirations and values of the individuals you are bringing into a company are just as important as their knowledge and skillset.’

Therefore if a job spec can be expanded to include more than just expertise, the result will be a more diverse pool of candidates.

‘What I have done is ask what is really required,’ says Brown.

Qualifications are important, but finding the right candidate that fits the company culture is also crucial.

‘The idea that you have to be super narrow with specific experience actually discourages increasing diversity. When the job criteria is edited to include leadership and initiative, all of a sudden you will have a different pool of candidates. It is important to remember just because someone has been working in the same area of law for 20 years, does not mean they are always the right person for the organisation.’

Qualifications are important, but finding the right candidate that fits the company culture is also crucial.

The diversity bonus

The BGC 2025 members not only push for diversity within their own teams and companies, but also from the firms they choose to work with.

‘It is very important for us (general counsel) inside companies to hold outside counsel accountable by providing financial incentives,’ says Gumps.

‘When I was in private practice we had a client that imposed benchmarks for diversity. If these benchmarks were not met a portion of our compensation would be withheld. Think of it as a diversity bonus. In that instance, it was not surprising that the teams servicing that client were the most diverse teams in the firm. Diversity mattered because it mattered financially.’

Attaching a financial incentive signals to law firms that diversity within their teams should be a priority believes LeCointe-Cephas: ‘When we bring in outside counsel to work on an investigation it is important to us that we see women, and underrepresented ethic groups as well as LGBTQ persons. I also want to see that they have substantial roles and responsibilities as well.’

Even though there is no business case for homogeneity, law firms sometimes need a reminder of that fact. ‘A financial incentive is sometimes helpful in expedited the process,’ says LeCointe-Cephas.

Wanji Walcott, executive vice president, chief legal officer and general counsel at Discover Financial Services agrees that in-house counsel have a responsibility to push for more diversity in law firms.

‘I always felt like it was my responsibility as in-house counsel to have an impact on law firms. What I am seeing post George Floyd is that it is still my duty because it is an area within which I can make an impact. I feel like we are moving in the right direction. There is so much more accountability and purpose now, ’ says Walcott.

Even so, members of the Black General Counsel 2025 initiative strongly believe that hiring and promoting lawyers for diversity is not about meeting a corporate checklist. There are real economic benefits when companies are intentional about who they hire.

‘Diversity is about enabling your company to make better decisions. People bring different viewpoints. The conversation will always be different when the team having that discussion is diverse,’ says Gumps.

Equally important is ensuring that when lawyers from diverse backgrounds are given a seat at the table their voices are heard.

2020 was a turbulent year, however those still fighting towards equality have not wavered in the face of adversity.

‘What you want to be doing is fostering an environment in which people can voice their concerns and feel like they have been heard,’ shares Rick Sinkfield, chief legal officer at Laureate Education Inc.

‘I believe having different types of people in your company leads to more creative and innovative ways to stay ahead of the market. You are going to be thinking about your products or services from a perspective that is reflective of the wider community,’ he says.

Better than when we started

Even though Black America has made a lot of progress, it is evident that more still needs to be done to boost representation in corporate leadership. As a result, the Black General Counsel 2025 Initiative aims to elevate Black GC talent by providing visibility and a chance to be considered for GC opportunities to those who seek to move up the corporate ladder.

‘We need to work hard at creating a level playing field for the future,’ says Tuckett.

‘I still think there is a lack of intentional direct effort to find and hire diverse talent into leadership roles. In my experience, I have encountered a mindset among many that if they do not discriminate that is enough. That is great start. I believe there are also unconscious biases in human beings as well as institutional obstacles that need to be overcome in the hiring process.’

The easiest way of overcoming unconscious bias is to intentionally include people who would not otherwise be traditionally included. This requires deliberate effort for both companies and law firms.

2020 was a turbulent year, however those still fighting towards equality have not wavered in the face of adversity. The Black General Counsel 2025 initiative and its network of members believe it is important to sustain momentum and keep moving forward.

‘I am quite optimistic that we will get to a place where the boardrooms and C-suits across the country look more similar to the communities that companies are supporting and servicing,’ says Gumps.

‘I do not think progress is going to be linear. With all things that are hard there are going to be many ups and downs. But I do believe we will get there, it is just going to take time.’

For the time being Tuckett admits working towards the goal of seeing 10% Black general counsel in Fortune 1000 companies by 2025 is going to require a lot of work.

‘This is an ambitious goal and in my view it is going to take a lot of effort from the Black general counsel who are currently seated in GC positions. They will be the ones who will get the phone calls available GC about opportunities.’

Although progress may at times feel slow, the conversations around building an inclusive, diverse and equitable legal profession continues to push the movement forward.

Foreword: We Need to Talk About Race

The 2020 racial reckoning ignited a conversation at Weil, like many organizations, about justice and equity. To meet that watershed moment, we had to come together to catalyze meaningful change in society, the legal profession, and also within the Firm. In this moment, Weil’s Diversity Committee developed a mission statement with a special focus on our Black Attorneys and Staff, and reviewed over 175 ideas to develop an action plan.

As Co-Chair of the Diversity Committee, my primary goal for Weil’s Black attorneys is to help to make them successful. By “successful,” I mean continuing to foster a workplace culture conducive to their success, and continuing to focus the Firm’s efforts at recruiting, retaining and advancing attorneys of color, particularly our Black lawyers. Moreover, “success” means ensuring that our Black attorneys not only have the opportunities to excel, but that they get the specific skillset and training to take their practice to the next level, whether at Weil or elsewhere.

Leadership and Accountability: Two advisory boards were formed, one comprised of Black partners and the other of Black counsel and associates, to work with Executive Partner Barry Wolf. Each board meets with Barry Wolf, the Firm’s Executive Partner, monthly to advise on a range of issues of importance to the Firm, including but not limited to diversity-related topics.

In addition, we enhanced multiple accountability mechanisms to foster greater partner engagement, including new questions on the annual partner report card and upward review surveys for counsel and partners and an additional scoring element focused on Black attorney representation on Leadership Diversity scorecards.

Career and Leadership Development: BLAST (Black Lawyers Achieving Success Together) is a new initiative investing in the Firm’s Black talent. The BLAST program for senior Black attorneys features Management Committee Sponsors, individualized business plans, executive coaches, and group leadership sessions. Mid-level and junior Black associates participate in level-specific monthly sessions facilitated by external leadership experts. The partner mentors of Black associates participated in a pilot program to strengthen mentoring across different skill sets. In addition, we developed Jumpstart – a resource for new and lateral Black associates which pairs a Black partner with an associate upon joining to support their transition to the Firm.

Diversity Education: To raise awareness to the systemic nature of racism across broader society, we held over 30 programs as part of a Racial Justice series, addressing the impact of racism in many facets of society – ranging from health care to the criminal legal system, with thought-provoking speakers such as Professors Ibram X. Kendi and Kimberlee Crenshaw. Furthermore, we devoted both our 10th annual mandatory diversity education program and our biennial Diversity Month programming to being actively antiracist, and also highlighted the intersectional dynamics of racism, including with disability and gender identity.

Nearly two years later, we are reflecting both on our results and where attention is still needed. We now have 9 Black partners in 6 different practice areas and resident in 5 offices globally. Since 2020, we’ve also increased our Black senior associate ranks from 2% to 7% which establishes a foundation for future growth.

In the words of Barry Wolf: “While the issues we grapple with as a nation are not new, the collective energy towards change we have witnessed as a community signals a cautious hope for a better future.” I am proud that through the sustained commitment and intentional investments of the Firm – at all levels – we are making meaningful change. We invite you to join us on this journey to collectively address racial justice in our profession.

Adé Heyliger,
Partner and Co-Chair Diversity Committee,
Weil, Gotshal & Manges LLP

ESG: Building an Effective Governance Programme

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In 2021, The Legal 500 partnered with Irwin Mitchell to produce our ESG Risk Report. Since then, we’ve seen environmental and social issues dominate corporate agendas, but comparatively, there has been little focus on governance. This is despite the fact that implementing a robust corporate governance plan provides a framework which will maximise protection for the stakeholders’ interests, reduce reputational risks and help companies to gain an advantageous position in the market.

Traditionally, board directors have, almost exclusively, been responsible for governance-related matters; however, as the role of general counsel (GC) evolves, and as the results of our survey suggest, board members are looking to their in-house counsel to pre-empt and reduce governance risks. Further, with many sustainability questions and issues not yet being clearly addressed by regulation, in-house teams are rightly being asked to work with people across their business to put resilient governance and reporting frameworks in place.

We surveyed over 115 in-house lawyers worldwide to gather their insights for how to develop and implement successful and forward-looking governance programmes.

In-House Legal Research Team – GC Magazine

Irwin Mitchell Comment

‘Effective and transparent governance is an essential part of the business toolkit for companies that want to thrive in today’s rapidly evolving and competitive business environment.

Although the G in ESG rarely makes the headlines in the same way as environmental and social factors, good governance is fundamental for building trust in and across any organisation, as well as long term sustainability and value.

How businesses operate is increasingly influenced by a wide range of stakeholders including employees, customers, suppliers and communities as well as shareholders and investors. Their priorities and values go far beyond regulatory and legal requirements, and the bottom line. For GCs and in-house teams, this means that the landscape of risks and opportunities that they oversee has changed considerably in recent years, and the pace of change continues to accelerate.

I’d like to thank everyone who contributed to this research for sharing their time and insights with us. We hope you’ll find this report a useful resource for guiding your business in developing and achieving its governance aspirations. But this is just the start of the journey, and we’d love to hear your thoughts on how governance and the role of the GC in progressing this agenda will evolve
from here.’

Hannah Clipston, Director of Strategic Growth, Irwin Mitchell


Board members across the world are familiar with the theory of effective governance. It embraces several key aspects, including regulation, compliance, good practice and board ability. Over the past few years, a two-fold evolution has meant the traditional appreciation of governance has moved on from the textbook approach. First, the role of general counsel has undergone significant transformation in the past decade, which has broadened its scope to strategic partner, prompting companies to expect corporate counsel to – among other things – provide advice and strategic guidance on corporate governance and all ESG-related matters.

The second evolution concerns the concept of governance itself. The concept has historically been used to describe transparency and accountability within the corporate sector. As business models have evolved and become more complex, companies have used governance models to enforce ethical corporate behaviours, both internally as well as with external stakeholders.

The past few years have seen a proliferation of statements, proposals and revised codes of corporate governance. While some of these statements reaffirm conventional doctrines and practices, others call for efforts to better align corporate activities with society’s interest in building a more inclusive, equitable, and sustainable economy.

In today’s market, with a customer base that holds expectations that can exceed a business’s legal and regulatory obligations, and is becoming more discerning on where and with whom they do business, ensuring alignment between a business’ purpose and what it does in practice is critical in building trust, both internally and externally.

In-house counsel have a pivotal role to play in the development and implementation of effective governance programmes that will steer the way a business conducts itself and ultimately, its success.






Key factors: In good governance

The research identified three key factors in creating a governance framework that is successful. These issues were repeated by the in-house community, regardless of sector and geography.

Focus on engagement: before creating your framework, spend time on gaining buy-in from all levels of the business including the board, the wider leadership team and team leaders who will be accountable for implementing the framework. Take time to listen to the business about their day-to-day work, challenges, expectations and what works well already. Socialising ideas and changes is important too.

Furthermore, ‘always listen, learn and adapt, because the theory doesn’t always work in practice’.

When developing the framework, keep it simple and use training to ensure that everyone is clear on what the objectives and expectations are and why they are important. You may also consider starting small with some key areas, gaining traction and then growing from there, rather than introducing wide-ranging changes in one go.

‘Make sure you have a progressive plan. Start small and get buy-in from leadership and employees, and then move to bolder actions’.

Create a framework that is specific to your organisation, its goals, strategy and risks as well as the regulations it is bound by. Hiring consultants or carrying out research within your sector will help you to gain insights and ideas which can be adapted into achievable and measurable governance objectives that will resonate within your business.

‘Every organisation is unique. Connect with your organisational requirements to propose a customised governance module that offers a mix of innovation and dynamism without making the stakeholders uncomfortable.’ Or, more succinctly put: ‘don’t copy and paste’.

This report considers each of these factors in more detail and provides practical guidance on how to achieve each of them.

Engagement with your board

One of the key factors for achieving good governance identified in the survey was the ability for GCs to influence the board, and it is positive that the majority of the respondents felt they could both influence and challenge their board of directors.

Influencing and challenging your board

GCs play a crucial role in advising the board when it comes to risks, compliance and regulatory-related issues. But to be truly effective, GCs need to look beyond their immediate area of expertise. As one GC said to us, ‘we are not only lawyers, we are part of the business. I think my advice to other GCs would be: you have to be part of the board, because first of all, you are part of the business.’

Overall, even though a vast majority of GCs expressed the ability to sufficiently challenge boards of directors, the respondents expressed an interest in having more direct engagement at board level. This would help them to have a better understanding of the business drivers and focus on the ways the legal ecosystem can support them. ‘Our role is to prevent any risks the company faces in its business and projects. Direct access is the best way to influence it’, another interviewee explained.

Advice: How to increase your influence in the boardroom

The advice from our respondents, for those looking to increase their influence in the boardroom can be split into three key areas:

First and foremost you need to be in the boardroom, and once you are there:

  • Invest time in winning support from senior advocates
  • But always maintain an independent advisor role and don’t shy away from uncomfortable truths
  • Don’t be afraid to express your views on non-legal matters

Always keep one step ahead in order to proactively provide training, guidance and advice

  • Implement a robust horizon scanning programme to ensure that whatever the future risk might be, they hear it from you first
  • Spend time to understand all facets of the business and create training and guidance focused on specific business priorities and risks
  • Be crystal clear on what your expectations of the board are

Articulate the value of good governance

  • Quantify risks in relation to brand values, reputation and business operations
  • Measure and benchmark progress so it can be used to demonstrate competitive advantage to your board
  • Ensure your messages are considered constructive rather than obstructive and always frame advice so that it speaks directly to business needs and future growth

Who evaluates the board?

When you have achieved buy-in from your board, or are trying to do so, understanding the evaluation procedure for the board is critical. The ideal scenario is to link good governance, along with other E&S targets, throughout the organisation with reward at a board level. However, that can only occur when there is a clear and transparent board evaluation culture and procedure. Here, we look at how boards are currently evaluated.

Typically, the board of directors carries out a self-assessment where it evaluates itself, often alongside an external independent group, such as a consultancy or audit firm. Some boards of directors take the view that relying solely on self-assessment may provide either the perception of a conflict of interest or may lead to a biased assessment. Therefore, in these cases, this evaluation is carried out by an external auditor to provide, in the opinion of one respondent, ‘an objective view’ of the status of the company.

As one respondent notes, due to the structure of many companies, members of in-house counsel may be part of developing a governance programme, but they generally do not participate in follow-up assessments of whether compliance has been met. One GC noted: ‘As an employee I do not evaluate the board of directors. The board does a self-assessment regularly with the assistance of an external consultant’. If, however, as some companies have done, they brought in-house counsel onto the board of directors, this would allow GCs to continue their involvement in governance frameworks beyond their initial development.

Notably, 60% of respondents noted that GCs did not participate in evaluating the board. Within this cohort, the responses included self-evaluation by the board; evaluation by an internal team not connected to in-house counsel, such as shareholders; and/or evaluation by an external team.

Interestingly, in some cases, even when governance standards had been adopted, some respondents expressed disappointment about a lack of any standards for board members. One respondent said, in response to our question as to who evaluated the board of directors, ‘No-one. Unfortunately’. This shows that while even if good governance policies have been set, that is only the first (and perhaps) easiest step. Without a way to reliably evaluate whether standards have been met, proposed governance programmes will be no more valuable than the paper they’ve been printed on.

The responses by in-house lawyers made clear that they felt linking board performance on good governance to objectives and reward, coupled with an external and independent entity to evaluate performance, provides a valuable incentive for the board to promptly implement governance goals in measurable ways. Unfortunately, this has yet to happen in many organisations and continues to be an area for improvement.

A follow-up survey addressed both measurement of performance of boards and remuneration of directors. The first question’s respondents gave a strong split, with one third noting performance was formally measured against specific governance KPIs.

Some responses noted they implemented the S&P’s DJI ESG scores, while others had developed bespoke policies, with one noting their 2030 agenda consisted of ‘30 cross-company goals that align to outcomes of sustainability, equity and trust’. Others emphasised corporate compliance, gender equity and diversity, while some highlighted a ‘specific focus’ on ‘ethical-related risks’ or a ‘holistic view on enterprise risks’.

The responses to the second follow-up question track the first, with a little under one third noting that their board of directors had remuneration policies directly linked to achieving specific governance KPIs.

Cross-referencing the two questions, we discovered a full 54% of respondents had neither any formal measurement in place, nor any remuneration to boards of directors directly linked to achieving specific governance KPIs. Only 21% of respondents had both formal measurements in place as well as a form of remuneration in place to boards of directors directly linked to achieving specific governance KPIs.

This demonstrates that there is still a long way to go for boards to be collectively and personally accountable for governance in their organisations. However, it is clear that progress is being made and it will be interesting to evaluate if those who have created a firm link develop a better governance culture and improve business performance as a result.

Diversity in boards

Another key issue that companies are faced with when considering good governance is the diversity of their board, including gender, ethnicity and diversity of thought among others. While this is often something in-house advisors may struggle to influence it does bear consideration, including when looking at how to influence your board and what issues may have differing levels of importance to them. Here, we look at the thoughts of those surveyed on the diversity of their own boards.

The statistical data provides a positive sign regarding diversity on boards of directors, with two thirds believing their boards of directors to be sufficiently diverse. This reflects a strong focus in recent years on board diversity, with the associated improvement in governance it is felt this can bring. It was, however, noticeable that the feedback from GCs who responded with ‘No’ painted a general picture of frustration from in-house counsel that their board of directors were generally older, white men, and what steps had been taken to improve diversity regarding gender were, in the words of one respondent, ‘minimum and limited’.

However, while some expressed frustration at failures to diversify boards of directors, others expressed optimism towards future improvements: ‘We have taken actions, including raising the non-diversity issue with the local board and explaining to them how this lack of diversity will be perceived’. It should be taken as a positive that improvements have been made and that action continues to create more balanced and diverse boards which are essential for tackling increasingly complex commercial issues, often requiring innovative and creative solutions.

Irwin Mitchell Comment

‘Increasing diversity at board level helps to create more inclusive and collective governance, and strengthens an organisation’s ability to respond to and anticipate change in ever-evolving markets and client bases. Greater diversity has been shown to bring about improved productivity and performance, a more responsive approach to client needs and increased innovation and creativity through a sense of belonging and the power of diverse thought. Therefore, a diverse range of board members brings with it a valuable range of perspectives and experiences to decision-making and problem-solving.

You also can’t underestimate the power of senior role models, particularly at board level, for under-represented groups and the impact this has on an organisation’s culture. While change on this doesn’t happen overnight, more can be done to recognise where there is a lack of diversity at board level and in wider decision-making groups and to seek out more diverse views to inform decision-making. Board members can act now and challenge views presented to them to ensure that diverse views have been taken into account in shaping proposals and policies prior to approval, while work takes place to increase the overall diversity of the board and the talent pipeline within an organisation’.

Charlotte Delaney, Diversity and Inclusion Manager, Irwin Mitchell

Irwin Mitchell Comment

‘Looking to the future, businesses are having to think more and more about how to generate innovation in order to respond to increasingly complex customer needs. Within Irwin Mitchell, we want to ensure that our products and services evolve so we are constantly exceeding client expectations. We know this is dependent upon attracting and retaining diverse talent and future leaders so we can benefit from different perspectives and experiences at all levels across our business. This starts with a commitment to widening access and increasing social mobility and by participating in initiatives like our new mentoring programme with City University, access to work experience with PRIME and increasing our apprenticeship offerings, we provide opportunities for students who might not otherwise have considered a career within the legal sector.’

Satinder Bains, Partner and Chair of Irwin Mitchell’s Social Mobility Colleague Network, IM Aspiring

Keep it simple

Ensuring your governance framework is simple and well understood is key to its success. Complex structures lead to a lack of understanding and engagement. This section looks at some of the challenges to embedding a good governance structure, and with winning buy-in from the business’ people at the top of the list, the importance of a simple, well understood and articulated plan cannot be overstated.

Challenges to embedding good governance

We asked about the main challenges to achieving good governance in an organisation, and while some cited difficulties caused by external factors such as local culture and politics, the majority of responses related to internal factors that GCs can actually influence.

Employee buy-in is considered the main challenge to achieving good governance, and this is noted as particularly tricky in organisations with high staff turnover, where employees are located over multiple sites and jurisdictions, and when people are already time-poor. But clear and concise messaging will go a long way to garnering buy-in. In addition, small steps can help bed in the framework, creating a simple starting point which can then be built on.

As one GC we spoke to pointed out: ‘The biggest difficulty is communicating clearly and in a manner that cuts through the noise of so many other regulatory, reputational and business demands on the attention of all stakeholders, including, not least, employees’.

Similarly, boards and other stakeholders will be more inclined to support governance issues if they have clarity on the costs of taking or not taking certain actions.

Formulating a simple framework which includes measurable principles provides valuable data which can be used to the advantage of the business. 75% of those surveyed said they use governance data and achievements in their marketing to employees and new hires, as well as customers.

At a time when GCs are increasingly looking for ESG as part of their own supplier procurement process, having readily available and clear metrics on ESG compliance, including governance, is becoming a must-have for any business who wishes to grow, recruit and attract investment.

Irwin Mitchell Comment

‘A robust governance framework is critical to our Responsible Business strategy. As well as ensuring that we set sufficiently challenging KPIs and objectives around our work, we engage external partners and participate in a number of benchmarks and accreditations to measure our progress and ensure that we continue to make an impact. We report on our performance in our annual Responsible Business report.’

Kate Fergusson, Head of Responsible Business, Irwin Mitchell

Make it specific

A key factor in success was making the framework specific to your organisation. This will necessitate in-house counsel understanding the needs and issues within their business and prioritising their governance objectives accordingly, which will then naturally flow into the framework for your organisation.

This section considers the priorities and aspirations from those surveyed, to provide support when considering some of the aspects you may wish to examine while looking at your own specific governance framework.

Governance aspirations

In our study, we found that most companies’ governance aspirations go beyond regulatory requirements. 48.7% of those interviewed stated that they would exceed regulatory requirements to be a leading responsible business because, simply, it is the right thing to do, rather than for commercial
gain. A further 23.5% say they would exceed regulatory requirements where, over the long term, there will be tangible and intangible benefits for their organisation to do so.

These figures demonstrate that for many, governance has moved on from being seen as a compliance exercise to a more strategic framework built to support sustainable business growth and impact.

19.3% of those surveyed would meet the established regulatory requirements without going beyond these, and the remaining 8.4% would exceed regulatory requirements only where there is an immediate financial benefit to the business, such as on cost savings.

Irwin Mitchell Comment

‘The direction of regulation and of client, colleague and community expectations around Responsible Business are clear and accelerating. Today’s aspirations and “nice to haves” will soon become tomorrow’s bare minimums. And changes of this scale in business take time to implement effectively. So a significant factor for the long term sustainability of all businesses is anticipating successfully the direction in which change in the business ecosystem is happening – and not just looking at today’s position (as you will fail to meet future needs if you do) – and then starting the change process proactively in that direction so that the needed changes are completed in the business in line with or even ahead of, rather than behind, the competition.’

Bruce Macmillan, GC, Irwin Mitchell

Understanding your priorities

priorities for the next 12 months

For the majority of respondents, the main focus for the year ahead is on their governance policies, frameworks and programmes. For some, it is about putting these into place while others are looking to refresh and update. Improving accountability and compliance also scored highly.

Looking at specific types of risk, unsurprisingly ESG tops the list, and drilling down further it is environmental issues that are highest on the agenda. This reflects the general trend in society and from stakeholders to ensure these issues are considered and understood, and appropriate governance procedures put in place to manage the risks.

As to cybersecurity and data privacy, respondents pointed out how organisations benefit from a comprehensive, integrated and centralised strategy for achieving data privacy compliance. Data sharing, they say, should have stricter controls and policies, which implies either current legislation is not being complied with or does not go far enough. Organisations should develop more solid data security compliance methods to track personal data in accordance with legal standards.

Irwin Mitchell Comment

‘We often see that organisations don’t have a complete picture of all the data sharing happening either from an intra-group perspective or with third parties. This is particularly the case with increased globalisation – there is often data export which is overlooked. For example there can be line management in groups done by managers in other group companies and other countries. IT and tech contracts often have an international aspect somewhere in the supply chain. Since the compliant export of personal data is a hot topic at the moment for the ICO and the European regulators it is important to understand what data sharing and export is happening and to ensure that it is compliant. Things are complicated by the fact that the data export rules and standard export contracts have changed recently. The old approach of signing EU standard contractual clauses and forgetting about them doesn’t work anymore. The issue will be further magnified once the UK data protection reform happens. We don’t yet have sight of the draft legislation after the Data Protection and Digital Information Bill was scrapped but we understand that it is still on the cards.’

Joanne Bone, Partner – Commercial and Data Protection

Prioritising your framework

In terms of priorities, over 60% of GCs stressed the importance of having adequately up-to-date policies and procedures in place. This is a key starting point for any governance framework but it must be specific – companies should not adopt policies for the sake of it where they are not necessary or adding value. Over 40% consider the most pressing matter as the establishment of effective governance disclosure protocols and educating board members on governance developments. Less than half of the people interviewed see the necessity of consulting external stakeholders and interest groups when establishing a governance framework (29.41%) as a number one priority.

Nonetheless, it is interesting to note that under the category ‘other’, the majority indicated that their priority lies in organising training for all stakeholders to better achieve good governance and create a sustainable change. When it comes to taking the ultimate responsibility for achieving good governance, the general feedback is that this is a collective task, however,
the board of directors and key managerial personnel have the last word. The board’s purpose is to support corporate performance and establishing clear Key Performance Indicators (KPIs) and appropriate measures for evaluating against those KPIs. Linking that success (or failure) to reward helps focus the board on the importance of good governance.

This reflects the contents of this very report: that board engagement, simple policies which employees can understand and are trained on, aligned with a framework for for your business, are how you can achieve good governance success.

Irwin Mitchell Comment

‘Creating a Culture of Compliance, as we are doing, needs to have a clear metrication of what is right – directionally and in terms of what a material improvement or deterioration looks like; clearly and openly spelt out to leaders and team members – we use a Balanced Scorecard with Key and Leading Performance Indicators; and then their needs to be a clear, explicit and adhered to approach that makes good or poor compliance a material reward and promotion issue.’

Bruce Macmillan, GC, Irwin Mitchell

Looking to the future

Having established and embedded a good governance framework, the work of an in-house lawyer is not complete. Good governance practice continually evolves. This report has already flagged the importance of independent monitoring of compliance and performance against the background of the governance framework set. However, from a commercial perspective, the focus of a business will shift to reflect new trends and demands from stakeholders, customers and employees.

Keeping your governance policies and procedures up to date requires a strong emphasis on horizon scanning, together with regularly revisiting your materiality assessment to understand the key issues for your stakeholders and which will impact your business and governance framework.

Like the captain of a ship, in-house counsel need to be able to identify ‘hidden icebergs’ and thorough horizon scanning will detect future disruption along with new opportunities to build into responsible business plans which will positively impact their business and society. Effective horizon scanning also provides decision-makers with the time to plan their response, and clear communication with external partners ensures those in the supply chain have the opportunity to ‘stay ahead of the game’.

As well as relying on monitoring services and updates from external experts including law firms, auditors, regulators and the government etc, the GCs surveyed take advantage of networking events, training and digital forums such as LinkedIn groups to ensure they are keeping up to speed with what is on the horizon.

The majority replied that the horizon scanning in place is effective in identifying governance issues before they arise. However, gaps persist. Under the gap section, interviewees expressed a willingness to have more resources allocated within the in-house legal team. Until then, working alongside your legal advisors and other sources of updates should be a priority to ensure your governance framework remains fit for purpose.

The pace and scale of societal, economic and environmental challenges facing us means we need to generate innovation and creativity within our organisations to quickly devise and implement solutions. This will require diversity of thought and openness to collaboration across our own business and the wider economy.

By leading the focus on effective governance against measurable KPIs which are understood and supported, GCs can be at the forefront of this challenge, making a difference to not only their organisations, but to society as a whole.

Conclusion and practical tips

Establishing a successful governance framework relies on many different things but its importance to a business should always be remembered. The G in ESG is often overlooked, but for a business to be successful it should be a core part of its focus, from the board to employee. The role of the in-house lawyer in achieving that can look daunting, but by focusing on getting the right engagement, keeping your plans simple and being specific to your organisation, you can achieve success.

In the column on the right, we have set out a checklist from the research to help you assess where you are on your governance journey, and what the next steps are for you and your organisation.

Checklist: For ensuring good governance


  • Are your governance policies available and easy to find for employees and external stakeholders?
  • Are your policies written in a way that means everyone is clear on what’s expected in terms of their individual and collective duties and behaviours, and why?
  • Do you have a training and communications programme in place to regularly remind people about new and existing governance matters? And for new employees as part of their induction?


  • Do you undertake scheduled and/or unannounced audits and checks on employees and suppliers?
  • Are your procurement documents and standard contracts regularly reviewed and updated to incorporate evolving governance requirements and KPIs?
  • Do you have a robust horizon scanning system/process in place to ensure your policies reflect new and forthcoming changes?

People and culture

  • Do you (as a GC or more widely as an organisation) have a sufficiently resourced and proactive team with responsibility for creating, implementing, reviewing and measuring your governance programme?
  • Does the board ‘walk the talk’? If not, do you have at least one senior leader to be your ambassador?
  • Is your board evaluated and rewarded based on successful governance compliance?

Editor’s Letter

In-house legal tech usage worldwide

The paralysing shock brought by the global pandemic may now feel like a distant memory, but there is little doubt that a new era has begun. In this ‘new normal’, as the media labels it, the consequent need to treat digitalisation as an essential ally to carry out daily tasks has forced businesses to approach technology from a whole new angle. Even at the peak of the Covid-19 crisis, The Legal 500 never ceased its interaction with legal professionals worldwide. As the world reopens and in-person global events are now an actuality, we have had more opportunities to speak with our vast global in-house and private practice communities and it appears that the legal industry is at the forefront of this technology debate. The developments arising out of the pandemic have prompted legal teams across the globe to recognise the need to become more responsive, agile, adaptive, and resilient, while the introduction of legal tech is gaining momentum and challenges traditional ways of providing legal services.

The Legal 500 has partnered once again with the independent law firm network World Services Group (WSG) to produce a comprehensive survey that aims to investigate the usage and impact of legal tech on in-house departments worldwide. The ‘In-house Technology – Global Edition’ concludes our In-house series, which covers the subject in Europe, Latin America, Asia Pacific, and North America. It includes extensive coverage of the Middle East and Africa, the two regions in which legal technology has made substantive progress in the past couple of years. The series also provides an update on recent evolutions in the rest of the world, the challenges general counsel face, and how they expect technology to assist them in overcoming difficulties. Additionally, and for the first time in a special report, we have spoken with over 200 general counsel around the globe and provided bespoke statistics to depict a more global perspective of this phenomenon.

The role of general counsel is changing rapidly, and the remits covered by legal teams are ever-growing, to a point where they need to continually and speedily digest a substantial influx of information. In this context and with the aim to provide a platform for the legal profession to exchange ideas with peers, learn from each other and find solutions together, The Legal 500 looks forward to engaging with in-house practitioners to follow up on the topic of legal technology and how they implement it within a team in the future.

Allan Cohen
Research Editor | Special Projects
GC Magazine

Nathan Oseroff-Spicer
Research Editor | Special Projects
GC Magazine

Foreword: WSG

On behalf of the entire global World Services Group (WSG) network, I am delighted to welcome you to the fifth and final edition in this regional series of
GC: In-House Technology special reports.

Over the course of these five reports, GC Magazine in partnership with WSG, have explored the role technology has played, and continues to play, in modernising the legal profession. This work has been grounded by the contributions of in-house legal leaders and experts from all across the globe, with hundreds of interviews and thousands of hours of research condensed into this multi-part series of work. The reports provide cogent insights into trending technologies, and general counsel members are utilising these tools and solutions during these ever-changing digital times.

Since 2020, the world – and by extension – the legal profession, have endured a level and pace of change that previously would have defied imagination. The series has been particularly timely, too, in the sense that technology has never been more crucially relied on – and by association, closely examined – since the advent of Covid and its effects on our professional lives.

As the world gradually moves into the post-pandemic period and returns to a semblance of normality, one of the most important factors for future success will be how the legal profession applies the lessons from these challenging times – particularly where technology is concerned.

At WSG, we have long been an ardent supporter of the modernisation of the legal practice via technology – with a focus on the power of technology to help WSG members stay competitive and exceed client expectations in rapidly changing environments.

In closing, I would like to offer my sincere gratitude to all who have contributed to this series of reports and made it the success that it has become. At WSG, we are immensely proud of this body of work and its contributions on the impact of technology and the legal system, both now and in the future.

Herman H. Raspé
World Services Group

Patterson Belknap

Adoption of legal tech

The speed at which technological advancements occur is pressuring legal departments to embrace change. We have asked general counsel if the turn to technology by their organisations has recently increased.

The findings report that 55% of the respondents answered ‘Yes’ to the question, indicating that for all surveyed, in-house legal teams operated under the assumption that recently increasing legal tech was either necessary or a pre-emptive decision. This desire of their companies is guided by basic market forces from without to increase efficiencies and internal pressure from legal teams to alleviate increased pressure on legal teams.

Note that the question was limited to recent increases in implementation of legal tech, therefore the set of respondents to the question that answered ‘No’ may very well have relatively recently introduced legal tech or already be using legal tech. Such a coarse-grained answer does not capture any variance in the beliefs or attitudes of GCs that conducted the survey. However, even with this coarse-grained question, the results indicate that as today’s legal departments continue to evolve in response to corporate demands and become more complex, driven by the introduction of new and more demanding requirements, in-house legal teams appear to think legal tech is the best option to respond to such a challenging environment. This reflects the belief that implementing software and other tools scales up in ways that hiring more in-house counsel and other members of legal teams cannot.

One possible inference that can be drawn from the data is that within this 45% that affirm there has been no recent increase in legal tech, there is a subset of this group that belong to organisations that have not been concerned with implementing legal tech. In these cases, part of the reason is likely found in the limited budget and conflicting priorities within corporations. This subset of GCs may want or even need new forms of legal tech to alleviate increased workload; however, due to internal tensions within a company, they may be unable to secure the necessary tech.

Additionally, in some cases, it cannot be ruled out that an increased market of legal tech produces a paradox of choice: there may be too many options available on the market at this point, cognitively overwhelming legal teams and GCs who wish to implement legal tech that would be right for them, but feeling stressed and incapable of making appropriate decisions without a clear preference for an option that appears superior to other options.

Results show that more than 64% of the respondents adopted legal tech to carry out daily tasks. When taken alongside the previous question, we see that at least 11% of respondents that answered ‘No’ to the question of whether they have implemented new legal tech recently already have some form of legal tech in place. This gives a more accurate picture where things currently stand, with 36% of all GCs surveyed currently not implementing legal tech.

Of this 36% that did not implement legal tech, their responses are illuminating. In the opinion of some respondents, their decision to not implement legal tech was due not to any decision made by in-house teams, but due to external corporate pressure. A common reason behind the rejection of technology seems to be budgetary constraints, defined by one general counsel as ‘too expensive to be used for in-house tasks’, an argument sustained by another counsel who supports that before making such investment, the department must assess the value that legal tech brings to the team.

Of note, no respondents gave any indication that they were purposefully avoiding implementing legal tech out of any concerns about its effectiveness or operating under the assumption that legal tech was a fad; rather, one illustrative response helps clarify how little funding in-house legal teams receive: as GC notes, ‘we only use free access databases. Other tools seem too expensive for their use on an in-house team’, providing a clearer picture of the corporate environment in-house legal teams find themselves in.

Between the set that do implement legal tech, however, over 36% use contract management, review, and research tools. Over 16% of the respondents use e-signatures software, and the remaining 12% use more standard programmes such as the Office package and internally designed tools. A common maxim in corporate procurement is ‘fast, cheap, good. Pick two’. If you’ve ever gone through a procurement process you know that sometimes you will only have one option. We can see this in play with the types of legal tech that have been implemented, ranging from bespoke, customised legal tools or highly complex AI-based tools to household names, such as Word or Adobe. Bespoke legal tech will likely be good, but it won’t come cheap, and procurement may not even be fast; however, off the shelf corporate software may be fast and cheap, but it may not get anywhere close to bespoke software in dealing with the needs of in-house legal teams.

A follow-up question addressed the broad range of purposes of legal tech used by in-house counsel. The majority of respondents noted they used legal tech for document management (70%) and legal research (61%), followed by accounting, billing, and or/ finance (47%), case management (40%) and legal AI systems (40%). We determined that a majority of respondents who employed legal tech used legal tech for at least two purposes, with, surprisingly enough, a small cohort only using legal tech for either document management (4%) or legal research (9%), while a large minority (41%) of respondents used at least four different purposes. Surprisingly, 6% answered that they used legal tech for all recorded purposes.

We also asked respondents about what did they value most when considering implementing legal tech. Unsurprisingly, when given a choice to list their priorities, 89% responded that they valued efficiency. This overlapped considerably with respondents who also prioritised reduction of costs, with only 5% of respondents choosing only the value of reduction of costs and no value for increased efficiency. Notably, only one respondent that chose ‘other’ identified a third value that they prioritised over efficiency and reduction of costs, specifically compliance.

A further question we asked related to the increased pressures on in-house counsel driving the adoption of legal tech. The results matched the expected outcome, with 70% of respondents noting their biggest pressure was an increase in volume of work, followed by 45% seeing an increase in their legal responsibilities. Of particular interest was the fact that a full 35% of respondents only answered their biggest pressure was an increase in volume of work; 32% selected both an increase in types of work and volume of work; and only 14% responded solely that their biggest pressure was an increase in types of work, not volume. A statistically insignificant cohort responded that their biggest pressure was neither of the two main options, but rather due to an increase in regulations (2%) or pressure to integrate into a broader team (1%).

Understanding and measuring the benefits of legal tech is not as easy as it may seem. We have asked our respondents if they can measure the value this technology brings to their jobs. Surprisingly, we had a precise 50-50 ratio.

However, further analysis shows that this 50-50 split in the result is an artefact of the survey, since all respondents that explained they did not use legal tech also answered ‘No’ to whether they were able to measure the benefits of legal tech. This means 36% of respondents must be excluded from this survey question as their null answers skewed the results. A more accurate breakdown of the data revealed that a full 78% of respondents who did implement data tech were able to measure the benefits of legal tech, results that were as surprising as the initial results, primarily because it illustrates how for a majority of in-house teams, legal tech is thankfully subject to Key Performance Indicators (KPIs), were there to be any auditing or examination of the effectiveness of a particular implementation of a type of legal tech.

Additionally, after reviewing qualitative feedback from GCs that did answer affirmatively, this is a group of GCs that are highly enthusiastic about legal tech, as well as excited to detail the ways legal tech has helped their teams. The reasons vary from timesaving to transparency, efficiency and uniformity, and higher productivity.

Some of the GCs offer a different perspective when assessing the value that legal tech brings to their department. They frequently talk about saving time on routine tasks. One GC even said, ‘we’ve had 15% time saved overall’. Another notes, ‘we’ve had time saves, less errors, and more uniformity’. A third GC says, ‘we’ve had lots of time saved through standardisation and cost-reduction in hours spent per contract’.

Even for GCs that have implemented less extensive forms of legal tech such as e-signatures and don’t have tools in place to measure effectiveness express a sense that legal tech has saved them time: ‘it’s just a gut feeling I have that e-signing is faster than the traditional way’.

And for GCs that can’t yet measure the benefits of legal tech in the short-term note that they are still in early stages of implementing new tech. These changes will only be measurable in the medium-to-long-term. Nevertheless, even if there are no measurable metrics in place, lawyers still cannot praising legal tech. As one in-house lawyer affirms, ‘I can’t live without it’.