Looking Ahead to a New Normal and What It Means for In-House Counsel

In my last article concerning the ways in which in-house lawyers in China were making use of the opportunities provided by the onset of COVID-19 to add value to their employers, I referred to the importance of GCs in developing contingency plans and using technology to make the legal function more efficient. Now let’s briefly consider to what degree does “change” mean for GCs and heads of legal, not just in China but elsewhere, in the light of handling the consequences of the COVID-19 crisis on their employers.

Under book seven of Marcus Aurelius’ “Meditations”, the Roman emperor rhetorically asks the reader about being “frightened of change”. He follows up with a succinct explanation on why change is necessary: “But what can exist without it? What’s closer to nature’s heart?... Can any vital process take place without something being changed?” In Meditations, Marcus highlighted the various traits of human character and prescribes ways in which to cope with adversity, but change is also a vital process for companies and in-house lawyers. As guardians of a company, they must be prepared to accept change as a constant but without increasing risk to its business.

Throughout my conversations with general counsel and heads of legal over the past few weeks, it is clear that the vast majority of companies have been affected to some degree or another by the COVID-19 crisis. Whether and how those companies will adapt to and thrive after the initial crisis depends, to an extent, on how a legal function is shaped and possibly restructured to continue supporting a business in an efficient and cost-effective manner. They will also have a role to play in not only reducing the financial toll on companies but also how to move forward in making a company profitable after the crisis.

For many general counsel, this will mean a transformation of the business, and for some of them, planning for change is hard to do at this time. One legal head working in the travel industry in China shared with me that, with so many problems occurring with partners in the hospitality and airline industries, he could look no further ahead than on a day-to-day basis where he has to balance interests, advise daily on the updates to be made to the company website and to maintain the reputation of his employer as being fair to its consumers. Being “vigilant” and finding a way to survive is the only way to proceed.

Others will be looking at how the legal function and the company as a whole will become more resilient. Planning for future crises, adapting to new business models or charting a strategic path for the business that may lead to building new revenue streams are some of the ways general counsel are mentioning, and it makes sense for the legal function to be actively exploring new ways in which they can be adding value. It goes without saying that the existing skillsets of in-house counsel should be developed or recognised to continue supporting an organisation.

So how should in-house counsel be embracing change and transformation? Perhaps by looking at how best to support innovation and a change of business strategy; by improving their knowledge base and therefore building networks that would enable a legal function to make the most informed and strategic decisions; or by reassessing how the legal function is structured and how to best deliver solutions to its stakeholders, not just in times of crisis but in maintaining and growing a business.

There are no straightforward answers, but it is likely all (and likely more) of the above will need to be considered in the coming months by general counsel.