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Toronto: the Scottish perspective

16 July 18

The fuller account of the main issues of interest arising from the In-house Counsel Worldwide Summit in Toronto

by Kenny Robertson

In late April and early May, at the invitation of the Law Society of Scotland, I had the pleasure of co-chairing the In-house Counsel Worldwide (“ICW”) summit in Toronto. The Society joined ICW in August 2017: it is a growing network focused on the promotion of best practice and collaboration across in-house legal teams, globally. As 2018 marked the 30th anniversary of the Canadian Corporate Counsel Association (“CCCA”), the event was a joint conference hosted by both organisations.

The event had over 400 delegates in attendance (mostly, but not exclusively, lawyers working in-house). In the course of the set-piece sessions and the informal discussions held with peers working in Canada, the US, Singapore, South Africa, France, Germany, New Zealand and England, it struck me that there were a number of common themes and challenges emerging for in-house counsel, irrespective of jurisdiction.

Three issues stood out for me: the broad desire among in-house lawyers to develop a more progressive relationship with private practice law firms; the opportunities presented by design thinking; and what the profession is doing, and could do, to promote social inclusion and help safeguard the vulnerable.

It was a fantastic few days, and I hope that expanding on these themes might be of interest to lawyers working in both private practice and in-house teams.

Social purpose

The conference began on Sunday 29 April with a documentary screening of I am Jane Doe, followed by a panel discussion on its key themes. If you are not aware of the film or its purpose, I encourage you to set aside 90 minutes to watch it and share it with your teams.

The film is a documentary about sex trafficking of young girls in North America. It was not easy to watch in many parts. However, the drive, commitment and provision of huge numbers of pro bono hours by several law firms to support and shut down avenues through which young girls were being trafficked and exploited highlighted the potential the profession has to make a meaningful difference to the lives of the most vulnerable. The panel discussion, chaired by Baker McKenzie, who sponsored the session, created much discussion both about what more the profession could do to support the vulnerable and disadvantaged, and about the ethical considerations surrounding the role of in-house lawyers.

It would have been easy and straightforward for the conference not to have tackled difficult subjects such as child exploitation, but it was to the credit of the ICW and CCCA that they were willing to begin the conference by airing difficult and challenging subjects such as this. I know many who viewed the documentary had cause to reflect on whether there is more which could be done by lawyers (whether in-house or private practice) to support those in need and the disadvantaged: the challenge for lawyers is as relevant in Scotland as it is in Canada.

Optimising relationships with external support

A second key theme related to the relationship between in-house legal teams and private practice, and specifically the evolving trends in invitations to tender for legal work.

There was wide consensus that in many organisations procurement practices were more heavily influencing the appointment of law firms. Requests for proposals (“RFPs”) were generally acknowledged to have become greater in length and sophistication (and with shorter response times). RFPs were increasingly being used to direct law firms to focus more on areas important to in-house teams, such as diversity and inclusion or collaboration among firms. Opaque RFP responses which failed to address properly the questions asked, but instead fudged the issues, resulted in frustration. Large in-house teams, in part driven by the growth of legal operations departments, were continuing to measure the performance of their law firms with greater sophistication and precision, using scorecards and key performance indicators.

More widely, beyond the drive for cost containment and cost certainty underpinning RFPs, the level of client service received by in-house teams was widely discussed.

At the conference there were a number of law firms represented, which were fully engaged with their in-house counterparts on how to collaborate and develop their support models, and as I mention above, one of the key themes which emerged from the conference was the extent to which a commitment to pro bono work and social inclusion initiatives is central to the operating model of several large firms. It was, nevertheless, clear to me that a number of in-house lawyers currently do not feel adequately supported by their law firms. In his Q&A session, I was struck by a comment by Mark Cohen (CEO of Legal Mosaic, and a thought leader in relation to the future of legal services) that in a recent survey by Cambridge University, 75% of general counsel were not satisfied by the support received from their chosen law firms.

An unwillingness or disinclination to understand and support their in-house clients’ goals, priorities, or challenges, little or no proactivity to share learnings or best practice in the marketplace, and an overemphasis on “what’s in it for them” were issues frequently aired. It’s beyond the scope of this article to delve too deeply into these issues, but in my experience many of the law firms operating in Scotland and the rest of the UK are not immune from this criticism. As the legal market continues to be disrupted through new entrants, innovation and the emergence of maturing legal technology, law firm partners might pause to reflect on whether their in-house clients would really be in the 25% of positive respondents.

Design thinking

Cat Moon, Professor of Law at Vanderbilt University in Nashville, ran a “sprint” on human-centred design (reflecting many of the views of Mo Zain Ajaz, COO of the legal team at National Grid, who ran a similarly excellent session at the Enterprise GC Conference in London earlier this year). “Human-centred design” for lawyers is focused on encouraging us to adopt continually the perspective of the client: we need to think like our clients and view problems and challenges from their perspective. In the session we were split into groups and ran through the overarching steps of design thinking (discovery, design, ideation, prototyping and iteration) effectively to crowd-source and then execute the best ideas. We were encouraged throughout to adopt a mindset of curiosity and an appetite to receive feedback continually.

The session was fun and energetic, but also produced some high quality ideas to explore and deliver. It is one of the many initiatives I have brought back to explore further with my own colleagues at the bank. As the prevalence of legal operations departments continues to rise, wider awareness and experimentation with design thinking would be a positive step for the profession.

(More information on human centred design is available at legalproblemsolving.org, and Cat Moon discusses her experience of running the design thinking session in Toronto on the most recent episode (110) of the Leftfoot podcast, available at leftfoot.com/110-cat-moon/.)

The Pitch

The conference closed with the “Pitch”, in which Toronto’s vibrant and growing legal technology community was showcased. Virtual platforms designed to improve access to justice, online legal cost management portals, e-discovery tools and patent searching services via Facebook Messenger were all presented on stage, each of which were well thought through and had established customer bases. The standard of innovation was, I felt, incredibly high, as was the scope for the products and their designers to collaborate with in-house and private practice teams.

I should end with a couple of closing thoughts. First, the Law Society of Scotland should be commended for joining and driving forward its engagement with the ICW. For the growing population of in-house lawyers in Scotland, there will be much to be learned from (and shared with) the ICW and its members. It will be exciting to watch the relationship develop and grow in the years to come.

Secondly, I should share my gratitude to the event organisers. The CCCA and ICW could not have done more for me as co-chair of the event – the event was organised wonderfully and I know Fraser Hudghton (head of legal member engagement at the Law Society for England & Wales) and Graeme McWilliams (chair of the Law Society of Scotland’s In-house Lawyers’ Committee), who joined me at the event, were made to feel as welcome and at home as I was.

It was a pleasure for me to co-chair the event and I am grateful to the Society for giving me the opportunity.

Kenny Robertson is head of services at RBS Legal

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