Drowning in Regulation – a day at the Corporate Counsel Europe Forum

Despite its title, this is “about” Legal Week’s Corporate Counsel Europe Forum, held at Luton Hoo, last week, in only the loosest sense, consisting more of random reflections derived from listening to first-rate speakers with in-house responsibility for legal and compliance matters at an extremely good conference dedicated to them. More focused posts, about the information management and the social media sessions, will follow.

I get to see a lot of places with airports in the course of a year. This year’s destinations include New York, Hong Kong, San Francisco, Singapore, Nashville, Luton, Washington, Dublin, Berlin, Sydney and Paris. “Luton?”, you ask. Well, that is what I thought I heard when George Parapadakis of IBM first asked me to take part in a conference with him.  Luton Airport is full of people rubbing their eyes with shock at the discovery that the final bill for the “budget” ticket to their chosen destination has trebled the web site price, with extras like a seat, use of the lavatories, access to the stairs, baggage fees and credit card charges. In addition, the plane is actually going to land 100 miles away from their resort, in a neighbouring country. Apart from that obvious parallel with lawyers and their bills – inflation by “extras” and divergence from the clients’ objective – it was hard to see why Luton would be hosting a legal conference.

What George had actually said, it transpired, was Luton Hoo, a place whose conference centre alone was grander than most, even without the splendours of the main house. The event was Legal Week’s Corporate Counsel Forum Europe whose entire delegate list, and many of its speakers, were in-house lawyers, many from household-name companies. I got into trouble on Twitter later by describing corporate counsel as the “most important” people in the eDiscovery market. It reflects a rather quaint, old-fashioned view of mine to the effect that the client (patient, pupil, voter, anyone who is the buyer or end-user of products, services or policies) is the one who matters most. It ties in with my repeated stress on the objectives behind everything we do which, in eDiscovery, seem to get lost in the focus on rules and on the miracles of technology. We have to keep asking “what is this for?”

I could attend only the first day of the Forum, something I very much regretted as I drove away leaving the rest sitting down to their gala dinner. I do not have to time to write, nor you to read, everything which was useful, interesting or both, so my summary, split across three posts, is a selective one – some musings on the role of and burdens on general counsel, a few particularly apt quotations, a summary of my own panel and, what was easily the highlight of Day 1, a lively talk about the use of Twitter and other social media. None of that necessarily ranks among the most important outputs from the day, but I have the luxury of choosing my subjects. I will start with an apparent diversion derived from hearing in-house lawyers talk about the things which fill their days.

A diversion: hitting the target whilst missing the point

One of the running ‘jokes’ of New Labour’s time in office was that its obsession with setting and reaching defined targets became more important than any actual benefit to anybody. Education is the most obvious example of an area in which every participant – government, schools, universities, headteachers, pupils, parents, local authorities and the wholly useless OFSTED – had an interest in the achievement of ever better results. The proper way to reach that is to raise the standards and the quality of the teaching. The timescale required for that does not suit politicians, who can claim the same apparent result within an electoral cycle by producing quality yardsticks which are more easily achieved. These appear as checklists, quotas and regulations which owe more to the ease with which they can be measured than to their value in educational terms. If you can tick the right boxes, so the logic goes, you must be doing well. The inevitable result is that everyone involved plays to the checklists. The real objective – a better education for the next generation – gets lost in the form-filling, itself a burden so onerous that it consumes all the available resources.

Much the same is happening with regulation generally. Not all the regulation is harmful or unnecessary, but much of it – in employment, health and safety, and in every other corner of business life – seems aimed more at giving politicians a sense of achievement and civil servants something to do. Some measure of bank regulation is clearly necessary, both as a matter of global economics and politically; we also own some of the banks, which gives the state some additional rights. The government seems unable, however, to control Vince Cable’s spittle-flecked hatred of bankers, and you can raise an easy cheer in any crowd at the lower end of the intellectual scale by bashing bankers. Three years or so from now, the Lib Dems can settle down to another 90 years of obscurity and, as the Times put it last week, Vince Cable can go back to the academic lecture circuit. For now, giving Cable liberty to attack the banks is part of the Devil’s pact which created the coalition. Lib Dems have never had to trouble their little heads with commercial and practical consequences, and the civil servants who actually draft the regulations are, like civil servants everywhere, immune from business considerations like profitability and international competitiveness. The result is that the real objectives of regulation, as opposed to the political ones, get lost in the paperwork. A 2009 cartoon in Private Eye shows Sherlock Holmes sitting at an overflowing bureau: “I’m sorry, Watson, but with all this paperwork, and targets to meet, I can’t possibly take on another case”.

I don’t recite all this simply to take another pop at politicians and public service pen-pushers. Any outsider’s view as to General Counsel’s priorities must take account of the fact that they are drowning in paperwork, much of which has no purpose relevant either to business efficiency or to any real risk, or which takes half-baked legislation and tries to turn it into a defensible policy. Yesterday’s Times includes two pertinent articles, one about the UBS “rogue trader” and one about changes in the retirement age. The UBS story generates contrasting reactions: some see it as evidence of a need for yet more regulation; others say that big problems like this happen precisely because of distraction by petty regulation. The retirement age regulations bring suggestions that the government had not thought through the implications either for employers or for the knock-on effect on the employment of new entrants. So far as in-house lawyers are concerned, it is just another set of problems for them to pick up.

Some considerations affecting in-house counsel

Everything is said above is an amalgam of my own impressions and prejudices rather than a report of anything said at the forum. At the opening session, called Risk – Where Does Corporate Counsel Fit In?, the panel gave us something more tangible to chew on. The points which stayed with me me, in bullet form, included:

Risk lies not merely in finance; natural disasters, riots, and revolutions come from nowhere. Arthur Andersen fell apart within a month on the back of actions by a few individuals. These things don’t surprise us any more (which is not the same thing as saying that we can anticipate them all).

It is more likely now that companies will get into trouble although it is hard to say why. BP drills thousands of holes every year – who could foresee the consequences of one in particular?

Ten years ago, newspapers carried two positive stories for every negative one; that position has now reversed.

There is more risk and the consequences are greater. We are becoming more risk-aware and our behaviours are changing. Corporate counsel get involved in more than purely legal risk.

There are “business as usual” risks and risks from extreme events. Something like the Japanese tsunami may alter the focus from “one in 100 years” to “one in 1000 years”

Devising and promulgating policies is not enough. There must be some kind of quality assurance, and people need to know that requirements will be followed up and that failure to comply has consequences.

One becomes cynical about risk management when you can tick all all the boxes and still not create a risk culture. This goes beyond strict legal requirements and involves creating something which people buy into

One must be on top of key indicators – if you have a million instances in a month of problems with a product then you are doing something wrong. Multiple instances of internal breaches imply the need for something more forceful.

Lawyers are not good at defining risk as a number – we like to hedge our bets and prefer to rely on words when describing and ranking a risk which, for example, has high impact, high cost and low probability.

Some of these themes were to recur over the ensuing sessions.

The gaps between the players

There are a lot of gaps here, I decided. Not for the first time, I wondered what relationship there is between law taught as a subject to those going into the profession and the real world in which those people will work. There is obviously a gap between politicians and civil servants on the one hand and the needs of commerce and industry on the other. Lawyers in industry do not seem as admiring of their co-professionals in private practice as the latter might hope. Judges and regulators could perhaps benefit from work-placement with the companies who bring their disputes to court or whose activities they regulate, and some in-house lawyers might profit from seeing with their own eyes how their decisions and their documents play out in court or in front of a regulator.

If these seem rather woolly take-aways from such a high-powered gathering, they are as important in their way as the gulf between those who get technology and those who do not, and between those who understand social media and those who don’t see the point. These will be the subject of separate posts shortly.

About Chris Dale

I have been an English solicitor since 1980. I run the e-Disclosure Information Project which collects and comments on information about electronic disclosure / eDiscovery and related subjects in the UK, the US, AsiaPac and elsewhere
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