How in-house legal teams are dealing with the impact of COVID-19
By Andrew de Boyett
In early May LOD sent an online survey to in-house legal counsel to understand how the COVID-19 crisis was impacting them and their organisations, and to learn how they are dealing with the challenges that have arisen. In this article I summarise the findings from the survey, and compare the New Zealand experience with recent feedback LOD has gathered from in-house counsel in other jurisdictions. I look at ways that in-house teams are addressing the challenges that have arisen, and consider the implications for in-house functions going forward.
Findings from the survey
The online survey was sent to senior in-house legal counsel across New Zealand. Two-thirds of the respondents to the survey work in the private sector and one-third in the public sector.
As expected, the COVID-19 crisis is having a significant impact on organisations. When the nation was at Alert Level 4, 78% of respondents said that the crisis was having a ‘severe’ impact on their organisation. When we moved to Alert Level 3, 75% of respondents said that the impact was continuing to have a ‘severe’ (25%) or ‘medium’ (50%) impact. At Level 2 or 1 there is more optimism, with 90% of respondents believing the impact would be ‘medium’ (45%) or ‘low’ (45%). A survey respondent commented: “at Level 2 or 1 we still face challenges due to the ongoing economic impact of lockdown and the position in other countries”.
The COVID-19 crisis is having a significant impact on in-house legal functions. All survey respondents said their workload has changed to new/more immediate priorities. Two-thirds of respondents said that workload has increased, and just over half (56%) said that a lot of BAU and projects have been deferred for now. Just under half (45%) have been asked to make cuts to the budget. On the positive side, two-thirds of respondents said that the transition to remote working had gone smoothly. “I am super proud of how well the team transitioned to working from home, given everything changed immediately for us in terms of workload and priorities”, a survey respondent noted.
Where workload has increased, just over half of respondents (56%) said that they expect it to remain at an increased level for a period beyond being at an Alert Level, while a third said it was difficult to determine at present how long it would remain at an increased level. Where a lot of BAU and projects have been deferred for now, just under half of respondents (45%) said that they expect that work to remain deferred for a period beyond being at an Alert Level, but most of the remaining respondents (45%) said it was difficult to determine at present how long that work will remain deferred.
The COVID-19 crisis is presenting in-house legal functions with a number of challenges. Nearly 9 out of 10 respondents (89%) said that dealing with the volume of work and determining what is important, when priorities change very quickly, is one of the biggest challenges they are facing right now. Two-thirds of respondents said that other big challenges include dealing with unprecedented/novel issues, and ensuring that their teams/they are safe and well supported. Just over half of respondents (56%) said that it was a challenge trying to carve out time and space for thinking as well as doing the actual work. A survey respondent commented: “On one hand it’s exciting to be doing such unusual and novel work, but on the other hand the sheer volume and hours required is quite exhausting”.
In-house legal functions are dealing with the challenges in a number of ways. Most common (78% of respondents) is setting up regular communication with key people across the organisation. Two-thirds of respondents said that they were keeping a strong focus on the wellbeing of the legal team. Just over half of respondents (56%) said that a key focus was identifying what is important and prioritising work. Interestingly, just under half of respondents (45%) said that some or all these initiatives are likely to be permanent.
Feedback from in-house counsel across other jurisdictions
LOD has offices around the world and since the crisis began we have been gathering feedback from one-to-one discussions and round-tables with senior in-house legal counsel across a number of jurisdictions. We have also been monitoring what in-house counsel have been saying in public forums. A number of themes have emerged:
Wellbeing: The wellbeing of themselves/their teams is cited by many senior in-house legal counsel as being their biggest challenge. At the same time, many report that their day job has grown – and as a result things have been more stressful. On the positive side, many senior in-house legal counsel are finding that the ‘all in this together mindset’ has fostered better communication and collaboration within teams. There is more empathy, sense of connection, community, and openness.
Remote working: A socially distant environment can be challenging and stressful for many, especially as some lawyers balance their jobs with looking after young children and/or elderly relatives. Some have struggled to find routine and adapt to working from home. Home and work life have become blurred and it can be hard to ensure there is a balance. The constant presence of their laptop and files can make it challenging to stop working, making it difficult to ‘switch off’. For many senior in-house legal counsel this is even more difficult to manage as there is an expectation that they are always ‘on’.
In-house legal at the executive table: Senior in-house legal counsel have had an increased role in executive management decision-making. Commercial leaders feel pressure – whether it’s real or perceived – to cut corners to minimize immediate damage to the organisation, and senior in-house legal counsel have needed to ‘step up’ and remind executive management that decisions still need to be made thoughtfully and involve certain stakeholders.
Managing workload: Many in-house functions have experienced increased workload. With new demands and projects on hold, there has been a need to re-focus/repurpose team members. A number of senior in-house legal counsel have suffered from information overload – they have been bombarded with meetings and communications, and have found it difficult to carve out time and space for thinking as well as doing the actual work. For some the crisis has also exposed inefficiencies in current processes and systems.
Ways in-house functions have been dealing with the challenges that have arisen
The findings from the survey and feedback from counsel in other jurisdictions have revealed a number of ways that in-house legal functions are addressing the challenges that have arisen:
Wellbeing: Many senior in-house legal counsel have worked to check that their teams are safe, well supported, and don’t feel isolated. They have focused on regular communication and looking out for those who are struggling. They have also encouraged team members to be open about the struggles – others know it’s a challenging time and everyone is juggling.
Remote working: To manage the blurring between home and work life, team members have been encouraged to take regular breaks and put up some boundaries so they don’t start early in the morning and work late into the night.
In-house legal at the executive table: Senior in-house legal counsel have needed to ‘slow down the room’ by thinking through the long-term business implications of potentially hasty decisions. This involves differentiating between crisis management/tactical responses (to deal with the ‘now’) versus strategic responses (to deal with the medium/long term). They have also been proactive in advising across the organisation – staff may not know what they don’t know given the rapidly changing situation.
Managing workload: The response of most in-house functions has been to focus on the important things and to triage everything else with a view that they will get to it when they can. They have needed to ensure that they have a clear understanding of the strategic priorities and a panoramic view across the organisation so they can truly determine what is most important (as ‘urgent’ does not necessarily mean it is the most important). Then they have be able to allocate resource and reprioritise work as appropriate. Where they hadn’t done it already, a number of in-house functions have developed stricter rules on the kind of questions being asked of the legal team, developed sets of FAQs to avoid answering same queries over and over, used technology to recreate some of the things they do face to face, and then directed their internal clients to use self-help tools.
So what do the survey findings and feedback from counsel in other jurisdictions mean for in-house legal functions going forward?
The COVID-19 crisis has given greater prominence to the wellbeing of in-house teams. Senior in-house legal counsel agree that they need to take care of themselves and their teams, or they won’t be able to do their day jobs. So going forward, team wellbeing is likely to remain a key priority for legal functions. Wellbeing isn’t just a matter of looking after each other, it is about using tools to make lawyers jobs easier and allow them to do their work with more confidence.
For most in-house legal functions the shift to remote working has gone smoothly. It has become clear that being in the office all of the time is not essential for the provision of efficient and effective in-house legal support to organisations. In an article I co-wrote with my colleague Jill Pitches, which was published in LawTalk 939, May 2020, pages 38-40 (“Pondering career paths after the experience of Lockdown”) we noted that cloud-based software, videoconferencing and other technologies have allowed lawyers to work remotely and plug into in-house functions as if they were working down the office despite being actually located elsewhere. In the future we are likely to see an increase in flexible and remote working practices across in-house functions.
Many senior in-house legal counsel already had a role in executive management decision-making, but the crisis has increased the role for those who did not, and has helped to emphasise the importance of in-house legal to organisations – lawyers bring a sense of calm to executive management decision-making when organisations are in crisis management mode. Once we are out of crisis mode and things have returned to some sort of normal it may be a challenge for some senior in-house legal counsel to keep legal at the executive table. The onus is on the legal function to continually demonstrate the value and impact of their work on the organisation.
Managing increased volume of work and changing priorities has shown legal functions what current processes and systems work well and what haven’t worked so well. Going forward, more legal functions may operate in technology-focused ‘more with less’ ways, facilitated by a greater focus on good legal operations.
During a webinar run by LOD in late April, Connie Carnabuci, the general counsel at Australian Broadcasting Corporation (ABC), said that organisations need ‘basic infrastructure or building blocks’ in place for their legal functions to deliver optimal impact, including automating the more simple low-value/low-risk BAU contracts so that lawyers can spend more time on the complex/higher risk matters, and building know-how repositories and a plain language precedents bank so that lawyers can leverage that knowledge quickly and easily and do their work more confidently and productively. Since assuming her role just over two years ago, Connie has put in place a number of operational innovations aimed at improving staff wellbeing, creating additional capacity, improving quality and risk management, and supporting accountability to the business. As a result ABC’s legal team was in a good position to handle everything the crisis was throwing at them.
Andrew de Boyett Andrew.deBoyett@lodlaw.com is Director – Client Solutions at LOD, an alternative legal services provider. LOD’s focus is on helping our clients to think differently and work smarter to better meet their legal, risk and compliance, and legal operations and technology needs.