Mr Kearns recently appeared on an episode of The Corporate Counsel Show to discuss his concerns about the practice. He also shared some practical tips general counsel and teams in general can look at to reduce risks associated with lower sustainability levels.

“If I was to list the top things that are troubling general counsel, I’m not even sure that legal complexity would make the top five … they’re so concerned about the wellbeing of their team or the sustainability of all of this, or that they’re being pushed down a value chain within the organisation because they just can’t get to the higher value work,” Mr Kearns said.

“So there’s an approach goal for most of them, which is, ‘I want to go further up the value chain, I want to be more valuable in the organisation, I want to deliver greater value’.

“At the same time, they appreciate that the system is bogged down in what we euphemistically refer to as BAU (business as usual). I haven’t met a general counsel at scale that doesn’t inhabit that problem every day – that is the gig. At the same time, I think they feel that they, and to a large extent their leadership teams, are not equipped to deal with that, to fix it. So they feel disempowered or frustrated by that.”

Key to addressing this frustration is breaking down the life cycle issues impacting teams, Mr Kearns said, noting that this is often challenging as you’re trying to do two things at once.

“They have what’s called the roadmaker’s dilemma. A roadmaker needs to fix the road without reducing the volume of traffic. And that’s the real challenge – how do you actually work on the system and [be] in the system at the same time? How do you see the system to start with? [And then] how do you address some of these really important things around the sustainability of it and the value of it, while not dropping anything? And that’s where we run into the main problem. You can’t. There is no model in a human supply chain for doing everything,” he said.

“One of the things I find is that lawyers in general who go in-house often fail to appreciate that they’re even working in business services. And business services is a game. Business services is very different to being a profit centre, [or] a fee earner – a term I hate in law firms. You need to scrounge.

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“The key factor to success in business services is what I call a scarcity mindset. [You] need to be able to operate in continuous scarcity. And you may well get frustrated by that, you may get angry about it, but that’s the gig. The gig is to scrounge, to work with what you’re given but you ultimately have to make choices … This is quite discombobulating for people who have come out of a system where they’ve been a profit centre into this environment which is really around choices.”

A shift in mindset is needed for in-house lawyers looking to change the way in which they approach such challenges, according to Mr Kearns.

“We’re dealing with a population, including the people in charge, who are highly conscientious. If we look at lawyers, [they’re] a relatively homogeneous population around certain things, one of which is personality preferences for behaviour. And they tend to be very high on conscientiousness. In fact, many of them are in the sort of dysfunctional realms of conscientious perfectionism. It’s pretty difficult for people like that to not try and do everything, and that’s really not helpful when you’re in business services,” he said.

“So, I think that the first thing to do is for the general counsel to look at their own practice because quite often I’m finding at the senior-level leadership team and above general counsel leadership team, the things they’re actually doing on a day-to-day basis and how they perceive what work is, it’s the equivalent of a chief people officer doing a position description for an EA.

“All the portfolios are sort of misaligned. When you look across to the other business services leaders, they are often in the business of optimising the performance of their function. Lawyers are really, really busy doing what they consider to be the work, and they never really let that go. You’ve got to, at some point, switch over to leading the function – not as your sole focus, but maybe [create] a bit more balance in where your focus is.”

Moving forward, Mr Kearns said it’s important to maintain this focus in order to ensure productivity levels are sustainable.

“For me, it’s really about first getting clarity of purpose. A lot of general counsel are sort of keen to put together a strategy, a vision, those sorts of things. For me, sustainable business services practice starts with purpose. What is your purpose here? What is the function you serve within the organisation?

“It’s important because it may seem pedantic, but purpose is, by its nature, adaptable. If the strategy of the organisation changes, your purpose probably doesn’t. But if the strategy of the organisation changes, your strategy should. So, if you want to avoid being in strategy redefinition all the time, then start to think about a higher-order purpose: What are you here for?

“It also provides your people with a touchstone for the choices they have to make.”

Mr Kearns said it’s equally important to think about the type of work you SHOULDN’T be taking on versus the work your team is capable of taking on.

“When we start to talk about what is the work you should be taking on, what’s the work you should be pushing back on?

“Structurally, legal functions are set up incorrectly or unsustainably. One of the things that they are is what we call leaky, so they’ve got lots of direct access to team members.

“One of the things that you could do is lock it all down and triage everything through a central contact email, like a help desk for technology, for example. I don’t recommend that we do that because a lot of the technology teams have moved away from that as a tightly bounded system because it took them out of the higher-value conversations. Rather, give your people some sort of reference point for making choices about the work that they should and shouldn’t be doing. Now, that’s not going to be enough, but it’s a good starting point, so get clarity on your purpose.”

Investing in leadership capability will go a long way in maintaining sustainability levels also, according to Mr Kearns.

“The second thing is to invest in leadership capability because the thing that’s really missing … is you’re getting people who haven’t really been exposed to leadership capability. Your leadership teams tend to still be people who’ve been promoted on the basis of their technical capability.

“This is actually very complex work, redesigning a function while you’re running it. So, it’s something you need to be very capable in respect of.”

The third step is to get a better handle on recruitment activity, Mr Kearns said.

“First of all, recruiting out of the supply chain comes with all of these sorts of issues. You’re getting people who’ve come out of being a profit centre, indoor cost centre. You’re getting people who have been remunerated incredibly well and have expectations of high remuneration, but you’re the most expensive REM budget in the organisation.

“I’m not saying stop recruiting out of the supply chain necessarily, but start building your interview processes, your recruitment processes around some of the things we’ve been talking about: a scarcity mindset, structured behavioural interviewing around how they’ve operated without resources. For example, recruit them for emotional agility and influencing skills over technical capability.

“We’re sort of in love with technical capability as our primary and I keep having in-house leaders say to me, ‘But they’re so smart, they’re so intelligent, they’re such good lawyers’. It’s not that that’s not relevant, [but] it’s just [essential to] get the balance right.

“Consider what you’re actually looking for in your recruitment and then start to design the system. Start to look at its organisational development design, start to look at how your roles, your technology, and your systems support your purpose. And that’s when we start to do the actual redesign work.”

NB: This transcript has been edited slightly for publishing purposes. You can listen to the full episode here: