The role of the charity general counsel sits somewhere between the private and public sectors, Oxfam’s Joss Saunders reflects.
Bilbo Baggins said: ‘I feel thin, sort of stretched, like butter scraped over too much bread’. Any general counsel will sympathise – we are spread across the whole legal array of our organisation’s affairs. A large part of the solution lies in spending time developing a clear vision through a participative process, valuing diversity, and knowing which battles to fight and when to back off gracefully.
Oxfam operates across 95 countries and 20 organisations, with three languages and a core legal team of eight. So respect for diversity is both a value and a necessity. As in any legal department, there will always be far more tasks than we can possibly handle, and we have a responsibility to our staff, organisations and ourselves to strike the right balance, and to engage in those areas where it is necessary and adds value, without feeling we have to be the beating heart of every transaction.
Here I will try to capture the flavour of the role of a charity GC, addressing:
2. some advantages we have as charity lawyers;
3. our correlative duty to go beyond our internal role to use the law to help achieve Oxfam’s mission; and
4. the four signature activities of an outstanding legal team.
I will conclude with some personal reflections on the GC role in the charity sector.
This may resonate with GCs of other small teams. As we are few, we tend to be generalists – though we have, through necessity, had to acquire particular expertise in key areas, ranging from labour law, through counter-terrorism and sanctions law, to funding and fundraising issues. But on the whole we are jacks of all trades, and often feel we are masters of none. We are far from perfect but have a clear sense of direction. There is a necessary humility in addressing the challenges of 95 legal systems with lawyers only qualified in five, although Oxfam is incredibly blessed in having pro bono support from international and national law firms, without which the job would be impossible.
Culture: a cake for a mistake
You do not have to be a brilliant technical lawyer (in fact, being a brilliant lawyer may be a disadvantage), but you do need to be a good learner. The ‘general’ in general counsel is the clue. As the well-known maxim says, ‘learn from the mistakes of others. You can’t live long enough to make them all yourself’. We are fortunate to have a fairly positive learning culture in the charity sector. One of my Oxfam colleagues suggested a ‘cake for a mistake’, to encourage people to be open about mistakes, to correct them and to learn from them. The converse of this is to ensure positive feedback. When our chair wrote a note to recognise the exceptional work of Hatti, our pro bono trainee (seconded to us from Freshfields), we made sure to feed this back to the firm, and pointed out that her work had been commended by the divisional director and the chair.
Our culture frowns on self-aggrandisement, and if you were to describe us in terms of the animal kingdom, we should be more like a shoal of fish than a pride of lions. We seek to persuade and not to command. While we have agreed with management that our advice is required before certain transactions can be approved, we often feel more comfortable with empowerment than with direction, and more comfortable with an appeal to common values than with tick-boxes.
One of my favourite ‘team moments’ was when we came in one day to find Susan, one of our volunteers, had drawn a cartoon of each character from Winnie the Pooh, and attached our names to Christopher Robin, Eeyore, Tigger, Owl and the rest. Self-realisation dawned, with gentle humour helping us realise our strengths and weaknesses. Similarly, some years before we took the Myers-Briggs questionnaire and realised that only one of us was in the intuitive-thinking (NT) quadrant. We were grateful when the NT volunteered to organise our knowhow, and help us with jeans-and-black-sack days to get rid of the legal detritus of years of old contracts, correspondence and advice notes.
Some potential advantages
The charity sector GC is not immune to the pressures that affect many private sector and public sector colleagues, and they have additional issues to deal with. The charity GC sits somewhere between private and public sectors, but also has some unusual advantages, including pro bono support, volunteers and the mutual support of lawyers from other charities.
We benefit hugely from pro bono support from law firms and barristers, both for complex legal transactions (such as air charters, financial services transactions and cross-border employment issues), and for some of the mission-driven projects described below. We invest in these relationships, such as a link with Baker McKenzie, which has provided specialist employment law and project management advice for our new method of contracting staff in our international offices. We build long-term relationships and have a secondment rotation between Freshfields and Gowling WLG.
This not only gives us the ability to plan ahead, but also builds up a network of lawyers who understand our needs and have worked with us on many projects. I strongly recommend secondments to any charity GC. In common with our wider organisational approach, we embrace volunteerism and have a volunteer knowhow officer and two other long-term volunteers, as well as a number of volunteers for ad hoc projects.
The charity sector is remarkably collaborative. There is no shortage of colleagues willing to share best practice, precedents, or the latest developments in often obscure areas of law. In addition, private practice lawyers are incredibly generous in their pro bono support to charities. As a consequence, even the sole in-house lawyer in a charity is not alone and has a broad network of support.
These advantages are important, given the acute financial pressure on charities and an increasingly complex regulatory environment. Legal teams are usually funded from an unrestricted income, as opposed to being covered by project grants or contracts. However, unrestricted income is becoming harder to come by, due to stricter regulation of fundraising and greater demand for charities’ services (as more and more functions that were public are outsourced to the voluntary sector), without the compensation of higher contract income. So although the demands on the legal team are increasing, in many cases the funding is decreasing.
This trend is unlikely to reverse. Some charities are still managing legal budgets for external services that are higher than their internal costs. For them, in-sourcing is likely to be attractive. But many have already done this and, for the majority, we are probably now at ‘peak lawyer’, with little flexibility to increase the size of the legal team.
Using the law to end poverty
Muhammad Yunus, the Nobel Prize-winning founder of Grameen Bank, wrote: ‘If the poor are to get the chance to lift themselves out of poverty, it’s up to us to remove the institutional barriers we’ve created round them. We must remove the absurd rules and laws we have made that treat the poor as nonentities.’
So as well as our ‘day job’, we regard it as a core part of our function to use the law to promote Oxfam and its partners’ work to prevent and relieve poverty. In recent years this has involved brokering support for least-developed countries in international negotiations in UN forums, project-managing a book published by Cambridge University Press on climate litigation, helping community groups in developing countries, and most recently taking up the challenge framed by the UN’s sustainable development goals (SDGs), which aim to eradicate extreme poverty by 2030. The SDGs contain a commitment to access to justice and the rule of law, and this frame of law as a critical factor in development has helped spark our latest project: inviting all lawyers in the UK to join an initiative where they as individuals can get involved in development issues though joining Lawyers Against Poverty.
Keeping the lights on: the four activities of an outstanding legal team
Whatever we can do directly as lawyers to tackle poverty, we must never forget that our primary role is to serve internal clients. We need to be like the NASA floorsweeper who, when asked what his job was, said that it was to help put people on the moon by keeping the facilities clean. So whether we see this as keeping the lights on, doing the plumbing, or working on the hygiene factors, we are here to help colleagues achieve the mission.
In a resource-constrained world, the GC must innovate and find alternative solutions to meet the needs of the internal clients. And so we need to consider the four key activities that are the signature profile of an outstanding legal team.
1. Meeting known legal need – doing the day job well.
2. Identifying unmet legal need – keeping across all that the business does, confident of priorities.
3. Managing the legal risk environment – what is to come, balancing tolerance to risk, reputation and compliance.
4. Transferring knowhow to non-lawyer colleagues – making sure that they are able to solve many of their own issues, and know when to refer to us.
Meeting known legal need
At Oxfam, meeting known legal need is a shared role for all legal team members, but the bulk of the day-to-day activity is carried out by a generalist legal adviser supported by a trainee. They both have the task of mainstreaming the fourth activity, transferring knowhow, as part of their day-to-day work on transactions.
When we advise on the charter for an aeroplane, or on the duty of care when sending staff into a conflict zone, we should be building the capacity of our colleagues to do the work themselves next time. We also have a compliance adviser (or in our terminology, a policy adviser) who is focused day to day on regulatory compliance, and who has become something of an expert in sanctions and counter-terrorism legislation. In Spain we have a francophone employment lawyer and a Spanish-speaking employment lawyer.
One of our pro bono firms, Gowling WLG, provides invaluable employment and intellectual property back-up. A lawyer in the Pacific reminds us that the world is not northern, and I like our previous chief executive’s map of the world, with Australia at the top. We have a Latin-American lawyer, and our next hire should logically be in Africa. We have a great team of volunteers, who augment our sparse capacity, but also bring us a broad perspective and experience of legal need as seen in other organisations.
Managing unmet need: inter-team, not intra-team
We need to keep across every area of Oxfam’s work, a challenge in a small team. One way we do this is to encourage all legal team members (including support staff) to be active volunteers in organisation-wide initiatives, even more than within the team. We might get carried away sometimes and need to scale down, but most of the time we volunteer for pretty much everything: acting as facilitators on our management and leadership course and gender leadership course; coaching staff from other departments (as a global initiative we do much remote coaching across countries and cultures, and sometimes with other peer charities); speaking at meetings; or, more informally, singing in the choir, losing football matches gracefully to other departments, and baking cakes for the Auction of Promises.
Studies of mortality rates in the NHS have shown that the quality of outcomes is more dependent on inter-team work than intra-team work. We believe this is also likely to be true for law. The GC has to make sure the legal team has time to spend being outward-facing and keeping in touch with the rest of the business. That this is usually quite a lot of fun makes it much easier than it would otherwise be.
Managing the legal risk environment: regulatory compliance
Increasingly in the charity sector, as in other sectors, the GC is preoccupied with issues of regulatory compliance. Our policy adviser is a key asset in this work, backed up by external (pro bono) expertise. The GC has to set the tone by reading widely, knowing the business intimately and networking avidly – internally and externally. The regulatory framework internationally will continue to evolve rapidly and we need to adapt with it. This does not mean slavishly copying what other organisations do. Our culture is key and we need to work with it, not against it. A good example is our counter-fraud work, where we have a fourfold mantra of ‘deter, prevent, detect, respond’. The GC works closely with the trustees, the leadership team and with internal audit and compliance, in keeping the focus on ‘deter’ and highlighting the links with our organisational values.
As there will always be more work than we can do ourselves, it is natural that we want to equip colleagues with the tools to do the work themselves. Part of this is done through training. We get help with this from external experts from our pro bono panel. With a team of three volunteers, we spent 18 months developing our own self-help toolkit, ‘How to do everything… legally’. Following the steer given by Atul Gawande’s marvellous book The Checklist Manifesto: How to Get Things Right, we interviewed staff across the world to distil their experience of legal challenges into 200 pages of checklists and guidance. These are presented in bound form with lots of colour and quotations, as well as online, in English, French and Spanish. We back it up with a legal helpdesk, to which we plan to add more guidance notes and precedents.
While many of the issues canvassed here are relevant for any in-house lawyer, I would like to finish by suggesting three particular priorities for the GC.
First, servant leadership: a leader should not expect others to do anything they are not prepared to do themselves, should always seek to give credit for success to the team, and take the flak for failure. In particular, keep an eye on each member’s wellbeing (not forgetting yourself).
Second, invest in systems as well as people. Other team members will complement your own skills and are not a threat. Use the Myers-Briggs type indicator, the Enneagram personality types, or other tools.
Third, consider your remit in the widest possible sense, get involved in cross-team working even if it is not directly relevant to your legal role, while being clear which ‘hat’ you are wearing in which team.
As legal advisers, we are here to advise, not decide, but in other areas we are as much a part of our organisation’s team as any other function. This builds trust, but also builds our own passion and commitment to the cause.
- This is the latest in a series of thought leadership articles on the in-house lawyer sector. It is an edited version of a chapter in The Future of the In-House Lawyer: The General Counsel Revolution, published by The Law Society (£79).