General Counsel Need to Step Outside Their Comfort Zone in 2021

A new year always brings a degree of hope, excitement, and new challenges. And for many business leaders, it also brings great expectations to set the right tone. This is especially true for those leading from the general counsel’s office—or today’s home office.

Based on my experience with leaders in the finance and tech worlds, it is clear to me that the general counsel in 2021 will not only be expected to provide expert legal advice, but also to assume the role of a difference maker, providing critical thinking and empathy in helping companies and employees chart a new course after a tumultuous year.

If 2020 was not challenging enough, I believe there will be even more competing priorities in 2021. I can foresee at least three areas where the general counsel/chief legal officer may have to step outside their comfort zone and, as the de facto chief problem solver, to tackle.

1. Advising on Returning to the Office in a Post-Covid-19 World

Under what circumstances employers will compel employees to return to the office has not been subject of much public debate or case law. To advise on the matter, the general counsel will need to a gain a deeper understanding of the different types of medical experts, such as knowing the difference between guidance from an epidemiologist as compared to a neuroradiologist.

General counsel would benefit from subscribing to a whole new set of newsletters that focus on Covid-19 related litigation, along with alerts from state and local public health departments.

Equipped with this new knowledge, the general counsel can work closely with company leaders to address employee concerns about returning to the office. What should the course of action be if employees refuse to return? Will the company require employees to get vaccinated? These are all questions the general counsel should be prepared to answer.

2. Leading on Legal Issues Related to Social Justice and Racial Equity

This past summer, in my home city of Minneapolis, I witnessed firsthand the rage and fear of protesters, and I was reminded of the words of Dr. Martin Luther King Jr., who said: “Rioting is the language of the unheard.”

Although violence is inexcusable, as Dr. King would have said, his words helped give context to the scenes of destruction throughout the city.

General counsel can strengthen their understanding of the difficult history of issues of race by looking beyond the law and seeking additional dialogue on these complex issues.

In Isabel Wilkerson’s bestselling book, Caste, she writes: “... [W]hat we face in our current day is not the classical racism of our forefathers’ era, but a mutation of the software that adjusts to the updated needs of the operating system.” She argues that civil rights protests in the U.S. made state sponsored discrimination illegal, but what remains is a code, or a Caste system, exacerbating the matter of racial equity.

As general counsel, we play a role in ensuring that the voiceless are heard and treated fairly. This is a new role, required now because employees, boards and customers are going seek greater transparency on these matters

The law is clear in that the right to protest in the interest of achieving social justice and addressing racial inequities is protected in our Constitution. The general counsel will be required to provide l advice on how corporate leaders can support the voices of their employees. This is an opportunity for companies to lean into these issues with dollars and other resources, and for general counsels to lead dialogue on race and equity.

Fresh scars from displays of violence and discrimination in 2020 are not likely to go away in 2021. We should, however, assume that conversations begun in 2020 about healing and closing the racial inequality gap have set the stage for more problem solving and, hopefully, less violence.

The general counsel, as difference maker, must be the steady hand that reminds leaders of the commitments they have made to uphold their company’s values.

3. Counseling on Corporate ‘Free Speech’ and Political Spending

In 2021, we will need to be prepared for a more politically divided environment. The general counsel may be guided by caselaw on political spending or corporate speech and upholding corporate values and client concerns. Corporate PAC spending, the combined political spending of the employees in support of the company’s interest, may be the subject of significant scrutiny.

Most experts believe that political spending is necessary. But what happens when the company spends its dollars on political leaders who promote conspiracy theories, or encourage the overthrow of duly elected leaders? The general counsel should expect to provide advice on these matters starting by encouraging the company to back more reasonable politicians.

This year is going to be filled with challenges, and people are going to be asked to do more with less. The general counsel will not be immune from these demands, so gaining a deeper understanding of matters concerning health and science, social justice, racial equity, and corporate speech will truly make a difference and serve all leaders well.

This column does not necessarily reflect the opinion of The Bureau of National Affairs, Inc. or its owners.

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Kevin J. Armstrong is general general counsel and chief legal officer at Docupace, a cloud-based digital operations software for the wealth management industry. He is also a Distinguished Practitioner in Residence at Mitchell Hamline School of Law, where he mentors students about the role of in-house counsel and lectures on transformative technologies including blockchain, bitcoin, and cybersecurity.