This week’s issue looks at an issue that is one of a basket of issues that senior and junior in-house lawyers regularly ask me about. Senior lawyers often tell me that they struggle to understand exactly what motivates their millennial and post-millenial colleagues; and how best, in the circumstances, to manage them and to lead them. Junior in-house lawyers often tell me that their senior colleagues just don’t ‘get’ them. The issue raised by Chris in the email to me below is one of the numerous cross-generational issues that come up.
Enjoy reading, and please comment and contribute to the debate, and write in with your people issues to me (jonathan@middleburghassociates.com).
‘Dear Jonathan’ … and Jonathan’s Reply
Dear Jonathan,
I am the General Counsel of a medium-sized legal department in the Midwest of the United States. I have around 50 lawyers, and also have a bunch of regulatory and compliance folks, reporting into me. The corporate is a well-known FMCG company, in the Fortune 500.
I am in my mid 50s, Ivy League educated at college level, and went to Law School in the Midwest at the University of Michigan in Ann Arbor.
I’d like to take your advice on something that has been troubling me for a while. I’ve taken as much interest as anyone in recent developments around diversity and inclusion, and I’ve also followed what’s been happening with the culture wars here in the US and elsewhere. For what it’s worth, I am a socially liberal republican, but to be clear I don’t think that’s relevant and I don’t spread around my political views.
I’m really careful about my use of language, for obvious reasons, and have tried and try on an ongoing basis to create an open, inclusive, culture in the department.
All that said, I find it hard to keep up with the dizzying pace of change. I really worry that one day I’m going to say something unintentionally offensive and that all hell will break loose.
What do you suggest?
Yours,
Chris (he/him)
—
Dear Chris,
Thanks so much for writing to me. This is an issue that I discuss very regularly with both in-house lawyers and those in private practice; also with commercial folks outside the legal community and with others.
It’s a really tricky issue, as you have so rightly identified. However politically correct you are, and however much you keep up with developments in social norms and changes in appropriate use of language, there is still a risk that you might make an inadvertent mistake or mistakes. And, if not you, someone else senior in your department, or someone junior for that matter.
The so-called culture wars are a tremendous problem, as you know, and have destroyed or damaged many careers at C-suite level and beyond. I’m thinking, for example, not just of cases of really egregious conduct, such as the CEO of a tech company called Solid8, who hurled racist abuse at fellow diners in a Chinese restaurant, and whose career prospects were quite rightly foreshortened. Nor, indeed, of cases of those who have made comments that were downright insensitive or offensive, such as the former chair of KPMG who told around 1500 financial analysts on a conference call that they should stop moaning and ‘playing the victim’ in the face of the Covid pandemic. He, quite rightly in my view, was forced to resign.
I’m thinking of the really difficult cases, which are at best, borderline. For example the UK author, Kate Glanchy, who has ended up being cancelled and her books being pulped because of alleged racially insensitive language in one of her books; language which was not just endorsed but praised by some of those she was writing about. Or the Harry Potter author, J. K. Rowling, who has been cancelled in the eyes of many because of her views on transgender issues.
The right or wrong of the underlying issues that spark “cancellation” are, I believe, in a sense, beside the point. You and I, and others, can have genuinely held different views about very complex issues around gender. These are, quite often, trans generational issues or misunderstandings. For example, my own children (who range in age from 15 to 24) have a very different perspective on the rights and wrongs of transgender issues and are vehement in their anger at J. K. Rowling for her various tweets and comments.
The issue for me is more of a practical one, namely how you, as General Counsel of a legal department, avoid falling into the bear traps lurking below the corporate surface-level landscape - in this case as a result of “cancel culture”.
Here’s what I think in practical terms.
The first thing, I think, is to remember that none of us possess full insight in relation to these complicated issues. We each have our own perspectives, often culturally informed. These issues are, many of them, the hot potatoes of the day. Some of them threaten to tear apart the very fabric of our own social norms and institutions.
So, always remember that your view is just one view, and be acutely sensitive to the possibility of other, different, views.
My second piece of advice is to create a culture where there is a possibility of mistakes being made and forgiveness being extended.
What do I mean by this? I mean, quite simply, that I think that it is vitally important to have proactive conversations in your Department about the possibility of things being said unintentionally in a manner that might be offensive to others. And not just to have those conversations, but to reach actual tangible, written, agreements between your team members as to what will happen if such a situation arises. How will you resolve this situation? What process do you think it appropriate to set up in advance to avoid such misunderstandings tearing apart your Department?
I think a good analogue, in psychological terms, is what happens when you receive a service from someone and you are unhappy with the outcome, for whatever reason.
The surest way of putting your back up is if the service provider responds defensively, or fails to acknowledge your perspective. The most likely way to resolve any conflict is if the service provider acknowledges the mistake, or the perception of a mistake, and looks to work with you to find a solution to the problem, as you perceive it. 99% of the time, as you will have experienced yourself, this causes the problem to fall away. It’s even more likely to resolve the issue if there is a clearly agreed process for resolution of the issue.
Those who might take offence at your words, or the words of others, are all likely to be highly intelligent human beings. Their offence is unlikely to be completely devoid of any reality.
Now, for example, in relation to trans issues, there can be a vast gulf of understanding between generation X and generation Y; or in this case between the generation of “older” lawyers such as yourself and millennial or post-millennial lawyers.
That doesn’t mean that there is going to be no objective or subjective truth in the complaint that is brought. It just means that the person who made the comments perceived as offensive might really struggle to understand the source of the complaint or the reason for the offence taken.
Having acknowledged in advance that there are a bunch of issues that might come up that could cause offence, you will have put in place the first “escape valve” to release some of the pressure and frustration. You will all have acknowledged as a team that there is wiggle room, or room to be imperfect. You are not giving each other advance licence to be offensive, but recognising that certain comments may cause offence and committing in advance to trying to deal with the fall out.
There are various ways you could map out the process for dealing with the fall out. This needs, in my view, to be a negotiation between yourself and your fellow team members. You may, for example, agree that you will have a cooling-off period of at least 48 hours or longer, if anyone complains of an offensive remark. This is to allow folks to calm down and to try to address the situation with cooler heads.
Another possibility is that you provide some sort of mediation mechanism if team members can’t resolve the issue bilaterally or between themselves. You may, for example, agree in advance that there is somebody everyone really respects outside the department who can be brought in to mediate the issue.
These are just some preliminary thoughts.
This is such an important issue. I’ve thought about it long and hard since you emailed me a few days ago. That thinking has led me to conclude that it would be very valuable for the in-house community if there was a best practice model policy to deal with these situations.
I’ve decided to take upon myself the challenge of taking a first stab at drafting such a process/policy.
My challenge to you, and to other members of this community, is for you all to critique that draft when produced, to give some input and to help me polish it so that it becomes a suggested policy that can be offered to others within the in-house community. I believe this will be immensely valuable. I will be publishing this draft policy in an upcoming issue.
Next week’s issue will be devoted, in any event, to a follow-up response to this discussion. I’m hoping that one or more of this community, the readers of Practical Counsel, will be writing to me with your reactions and / or experiences. As always, I will anonymise the facts and preserve confidentiality and write to you individually in response to any scenario that I use in this newsletter.
I also encourage members of the Practical Counsel community to write in to me at jonathan@middleburghassociates.com with other people problems and issues that are currently concerning you, or that are issues that come up for you regularly. For example, I know that a couple of really hot topics at the moment are how best to cope with hybrid working and how to keep your team motivated; and how to grapple with the huge issues around retention that are super-difficult because of the pandemic.
Chris, thanks for writing in.
And to all of you out there, have a great weekend and a good week ahead!
GC Expert’s Insight of the Week
Julia Chain is former General Counsel of T-Mobile, a telecoms corporation that merged with Sprint in 2020 to become one of the world’s largest mobile networks. She is now Chair of the UK’s Human Fertilisation and Embryology Authority and is a past Deputy Chair of the UK’s Commission for Racial Equality (a forerunner of the UK’s Equality and Human Rights Commission).
Dear Jonathan,
Your response to Chris highlights some very real issues facing legal leaders today and gives some sound practical advice. I wanted to share with Chris some of my own thoughts, which he may find helpful:
· I agree with Jonathan that you need to try to avoid the problem in the first place by creating a culture of openness and inclusion. This means respecting difference and being empathic to the differing needs of others; from the single parent who needs flexibility for a child-care emergency to the colleague who needs space for prayer during the day; from the junior lawyer who needs support because they are undergoing fertility treatment to the senior associate who has suffered racist abuse in the workplace and needs you to take a supportive stand – these are all areas where you can set an example by making it clear that individuals will be supported and valued, that colleagues can be open about their problems and that rudeness, gossip and lack of respect will not be tolerated.
· Be a champion for diversity and inclusion. You might find it difficult to really know how to do this yourself – in which case, choose a young lawyer and ask them to be your diversity and inclusion champion. Your HR department should be able to provide training and it will be so motivational for your colleagues of all ages to see that you are taking this issue seriously.
· And as Jonathan says – set boundaries in terms of what is and is not acceptable language and behaviour; and above all have zero tolerance for prejudice and discrimination, while forgiving unintentional offence. That’s a great place to start!
Good Luck with your challenges, Chris. I’m sure you’ll rise to the challenge well.
Best wishes
Julia Chain
Key Takeaways
1. Strive to create a culture of openness and trust in your department.
2. Be empathic and open with your colleagues.
3. Work with your colleagues to define the boundaries of acceptable behaviour and language.
4. Work with your colleagues to agree that unintentionally offensive behaviour or language will (or may) be forgiven.
5. Work with your colleagues to co-create a process for resolving conflict.
6. Craft a policy that deals with these difficult issues.
And Now …
Contribute to the debate and write in with your comments and observations. Also write to Jonathan with any other people issues you face as an in-house lawyer.
Jonathan can be reached by email at jonathan@middleburghassociates.com
A note for you picky lawyers; and a plea for tolerance
I am a British lawyer by background and went to both school and University in the UK. So my English is British English. I have taken a conscious decision to write this newsletter in British English, but to try to avoid phrases that aren’t common outside the UK. Sometimes, though, I’ll use a phrase that isn’t commonly used outside the UK, without realising that it is a Britishism.
My plea is for you to tolerate the British spellings and grammar and the occasional Britishism. And to focus on the substance of the newsletter rather than the occasional (to you) annoying turn of phrase, bit of grammar of unorthodox spelling.
Thank you and best wishes,
Jonathan Middleburgh
This discussion is a very pertinent one and a reality now. What I have found helpful in the last few years while faced with similar situations were:
1. Raising my filters and acknowledging that there can be diverse views while handling team matters and reactions of younger colleagues can be different to situations.
2. Active listening always and discussing issues (wherever permissible) and avoiding being the typical ‘boss’ !
3. Respect and empathy; taking into confidence team members in decision making at times, on issues which will have an impact on the team at large.
I too agree with Jonathan and Julia Chain on creating a more user friendly environment by generating policies around what works for colleagues in terms of feeling heard and respected.
Two behaviours I recommend are:
1. Modelling the behaviour you seek - being inclusive (respectful, empathic and kind)
2. If in doubt asking questions - ‘Does this work for you?’ ‘If not what would work for you?’ ‘What do I need to know/understand that will help us to work well together?’
If there is a genuine willingness to enquire and accommodate cancelling will be less of a knee jerk response.