Rose Ors: Let’s define “workflow” and “workflow automation.”

Emily Teuben: A workflow is a sequence of steps involved in taking a piece of work from initiation to completion. Workflow automation puts that repeatable, manual process into an automated system that delineates what steps must be taken, who performs those steps, and how the work can be performed as efficiently as possible. The system identifies where a particular item is in the process, provides reporting on the work completed, and serves as a centralized repository for related documentation. Workflow automation simplifies the process and provides consistency in how the process is performed.

Rose Ors: How do you decide what legal workflows to automate?

Emily Teuben: Although there are no set criteria, high-volume, low-risk workflows usually are the first candidates for automation. Beyond that, any process that is repeatable is a good candidate, especially if it involves email approvals, manual spreadsheets to track forms, or the same standard questions being asked every time.

Rose Ors: Is there some work in which the risk is too high to automate?

Emily Teuben: I wouldn’t say so. I have automated some very complex workflows involving high-risk and sensitive information. Of course, those applications demanded stringent controls over the system and information security.

Rose Ors: How do you start?

Emily Teuben: We ask everyone involved to describe the manual process today. Who performs what steps? Who are the users who interact with the process? What information do you see? What happens to a document before it reaches your desk and after it leaves? I’ve found it helpful to provide users with a list of questions they need to answer before automating.

Understanding the current process is necessary, but you never want to automate an inefficient process. You want to improve the workflow before you automate it. That involves identifying common errors, bottlenecks, and other pain points. For example, if the manual process requires sending constant email reminders to get X done, that headache can be relieved by having the system send automated reminders at specified intervals.

Rose Ors: What are the benefits of workflow automation?

Emily Teuben: Workflow automation transforms the way we approach legal work. It takes the noise off of our legal team members’ plates and frees them to focus on higher-value work. Automation also typically shortens cycle times and often increases collaboration by providing transparency and visibility into each step of the workflow, making it easier for individuals and teams to work together.

Workflow automation also reduces the legal department’s workload by providing self-service solutions that users of our services can employ without the legal team’s involvement. When work goes to the legal department, the legal team has all the critical information it needs because the automated system immediately provides it.

Rose Ors: What are examples of workflows that benefit from automation?

Emily Teuben: Contract formation and review is a prime example. NDAs [Non-disclosure agreements] are contracts that fall into the high-volume, low-risk category. Automating them reduces the cycle time from creation through approval, and they can be a good starting point for people to begin visualizing how they can leverage technology to their benefit.

When I was at NetApp, we increased our efficiency and service quality by rolling out a contract management system that automatically alerted our sales team and us 90 days before a contract expired. The automated alert system replaced a time-consuming manual process that required inputting each contract into a spreadsheet and periodically tracking expiration dates and other critical data. Automation made the process faster and far more reliable and accurate. The 90-day notification also eliminated the risk of continuing to do business without having a valid contract. Similarly, the 90-day window gave us time to evaluate the pros and cons of renewing or revising our agreements before they expired.

Yet, contracts are just the tip of the iceberg 鈥� any manual process is a great candidate for automation. Compliance approvals, travel approvals, matter intake processes, M&A disclosure notifications, and escrow sweeps can all be automated.

Rose Ors: What hurdles do you encounter in adopting workflow automation, and how do you overcome them?

Emily Teuben: Change management is everything in legal operations. First and foremost, we need to understand with whom we’re working and communicate “what’s in it for them.” Why does this matter? How will this improve their day-to-day? How will this help up-level their work so they can focus on the most complex legal issues rather than the daily voluminous tasks that come across their desk?

Workflow automation transforms the way we approach legal work. It takes the noise off of our legal team members’ plates and frees them to focus on higher-value work.

What we do first is communicate with people early and often. As I previously mentioned, we start by asking everyone involved what the process is today, their pain points, and what problems we’re trying to solve. Seeking their input gives them a sense of ownership while identifying possible improvements and starts them focusing on the benefits of changing the process.

Before rolling out a new automated system, however, it must undergo User Acceptance Testing. This testing gives the users insight into exactly how the process is changing and how it will improve. It also gives them a unique opportunity to provide feedback and identify where the process can be further enhanced before we go live. Those who offer positive feedback can become evangelists for the project within their group.

Rose Ors: How do you quantify the benefits of workflow automation?

Emily Teuben: Before starting workflow automation, it’s helpful to have metrics quantifying the volume of work performed, how long it takes to do that work, and who is doing it. This is much easier said than done, as many of these processes are fully manual. That said, it’s okay to put metrics together based on anecdotes if that’s all you have. Something is better than nothing. Comparing those metrics after the workflow has been automated determines how successful a project was and that can help shape future projects.

We remind people regularly that they won’t always see “hard savings” from automating workflows. The goal of workflow automation is not headcount reduction. The goal is to allow the legal team to focus on impactful legal work. However, there should be “soft savings” as the legal team increases the number of matters it handles without increasing headcount.

Rose Ors: What advice would you give a legal department beginning its workflow automation journey?

Emily Teuben: Just start. The best way to learn is to get hands-on experience with the technology and the experience of redesigning a process. Choose a single manual workflow as a pilot to test the initiative. Starting with a single process allows you to get exposure to the technology, learn what works and what doesn’t, and enables you to iron out the kinks before rolling it out to the larger organization.

The goal is to get a quick win, refine and standardize your protocols, and apply them to the next automation challenge.

In this installment of听In Practice, Rose Ors, the CEO of ClientSmart, speaks to Laura Stevens, Executive Vice President and General Counsel for education technology company , about why she places so much importance on the professional development of her team and how she goes about doing it.

Rose Ors: Why do you place a premium on learning and professional development?

Laura Stevens: We all want to work for an organization that values and supports personal and professional growth. One of the reasons I joined Cengage was that its core purpose 鈥� to facilitate learning for everyone 鈥� so perfectly aligns with my profound interest in developing myself and others. In my experience, talent development is among the most valuable investment an organization can make to attract and retain a highly diverse team of people. We all know the numbers; companies are losing talent at an unprecedented pace. One of the top reasons for the Great Resignation is that employees are not advancing because they aren鈥檛 being given opportunities to grow.

Rose Ors: How do you help your team grow and develop?

Laura Stevens: I am intentional about fostering a learning culture within the department that supports our ability to serve the business better. For two years we held monthly lunch and learn sessions with senior leaders from the strategy group, marketing, HR, public affairs, finance, IT, communications, and other key functions. The sessions gave my team greater visibility into what was going on in the various business units. The team also learned some nuts and bolts; for example, the finance group walked them through the legal department’s budget process and how to read a balance sheet.

Rose Ors: I imagine the sessions also fostered human connections among your team and the leaders.

Laura Stevens: Absolutely. When our Chief Information Officer joined us at one of these sessions, he not only talked shop, he spoke candidly about his career 鈥� the ups and the downs 鈥� and his interests and hobbies. My team was spellbound and asked him a ton of questions. It was fantastic to witness how his openness and vulnerability impacted all of us in only an hour. It fostered a palpable connection.

Rose Ors: How else do you develop your team?

Laura Stevens: Stretch assignments are critical because the projects that people work on or lead are what truly make a difference in their career trajectories. As the name connotes, a stretch project entails learning something new. So, it falls on me to be clear that the assignment is a career-enhancing opportunity. The person across the desk or screen from me needs to walk away feeling excited, not burdened by the challenge.

I also believe in the power of having a business coach. I have one, so I speak from experience. If I think a team member is an excellent candidate for coaching, how I talk to them about it is all-important.

I could begin by pointing out problems and how a coach can help fix them 鈥� not a productive approach. What I do say 鈥� and what I also mean 鈥� is: 鈥榊ou have great potential and I want to have you work with a coach. We want to invest in you.鈥� It is a conversation that lets the person know they are valued.

Rose Ors: What role does feedback play?

Laura Stevens: In my experience, feedback is a highly effective form of coaching when done on an ongoing basis.

Establishing a regular stream of clear and constructive feedback builds trust and ensures everyone is on the same page about what success looks like and what is required to get there. Something one of my team members recently said that has resonated with me in my own management style is 鈥淐larity is kindness.鈥�

Rose Ors: What role does creating an environment of psychological safety play in fostering learning?

Laura Stevens: We talk a lot about the importance of showing up for each other in ways that build a workplace where collaboration, trust, and transparency are lived and felt. These workplace traits provide the psychological safety that we need to learn. Why? Because a big part of learning and growing is asking questions, asking for help, sharing ideas, and sometimes failing.

Rose Ors: What are the benefits of your approach to talent development?

Laura Stevens: We have a high retention rate. We also have people who leave and come back. I am also very proud that for the last several years, Cengage’s annual employee engagement survey has the legal department either first or tied for first place as the most engaged group.

Rose Ors: Now my final question. How do you model a growth mindset?

Laura Stevens: The role of any leader is to model the behavior they want to see. As a naturally curious person, I am always looking to learn new things. I make it a practice to talk with my teams about what I am learning from the podcasts I listen to and the books and articles I read.

They know I work with an executive coach, and I share with them what I am working on with her and what I am learning along the journey. I also encourage them to follow my lead and join and actively participate in external professional networks. These networks are a wonderful place to meet new people, exchange ideas, get advice, and learn about volunteer opportunities.

When I walk into a room or join a meeting and hear my team excitedly talking about an article or book they’ve read or a podcast they鈥檝e stumbled upon, I feel proud and energized that I have helped create a place where such conversation flows.

In this installment of In Practice, Rose Ors, the CEO of ClientSmart, spoke with three CLOs about their role as members of the C-Suite, how they work to ensure their enterprise鈥檚 growth and sustainability, and their primary function to safe-guard the company.

Business partner in the C-Suite

As one of a corporation鈥檚 top executives, the CLO is 鈥渋n the room鈥� with the CEO, the CFO, and the rest of the C-Suite; and as an enterprise leader, the CLO鈥檚 legal acumen is table stakes. 鈥淭he most important skill a CLO brings to the table is sound business judgment,鈥� says Kodwo Ghartey-Tagoe, Executive Vice President, Chief Legal Officer and Corporate Secretary at , a Fortune 150 energy holding company. 鈥淟egal expertise can be bought.鈥�

Alan Tse, Global Chief Legal Officer and Corporate Secretary at (JLL), a real estate services firm operating in 80 countries, agrees. 鈥淢y role in these meetings is not to expound about the law. It鈥檚 to focus on our strategic objective, ask the big-picture questions, and be a problem solver.鈥�

Joanne Caruso, Executive Vice President and Chief Legal and Administrative Officer, at , a global design, engineering, and technology-driven solutions company, working with businesses, cities, and governments in 50 countries, explains that legal skills take a back seat in these conversations. 鈥淢y role requires not only that I understand the strategy and help with its successful execution,鈥� Caruso says. 鈥淚 am also involved in its development.鈥�

Trusted advisor in the boardroom

Establishing a relationship based on trust and transparency between the CLO and the board has always been essential. Boards depend on the CLO to provide information vital to their ability to exercise their fiduciary and oversight duties. 鈥淭he board expects me to provide proactive advice on the company, industry, and competitive landscape,鈥� says Ghartey-Tagoe. 鈥淭hey expect me to help identify issues before they become legal risks.鈥� And at no other time has educating the board on the rapidly changing and sometimes discordant regulatory landscape been more crucial than now.

The environmental, social and governance (ESG) area is a prime example. As corporate secretary, Ghartey-Tagoe ensures that Duke Energy鈥檚 board is up to date on the company鈥檚 efforts in this vital area, including updating the board on the company鈥檚 climate initiatives and progress on targets and making more formal presentations. 鈥淎s the stewards of our company鈥檚 long-term value, the board鈥檚 environmental oversight role is critical. We aim to reach net-zero carbon emissions by 2050. The board entrusts the Duke Energy management team and me to help them understand what that means and how we will get there,鈥� Ghartey-Tagoe says.

Similarly, Caruso and Tse keep their corporate boards abreast of all critical ESG-related developments.

Guardian of corporate ethics

Although CLOs are expected to help drive business growth, they continue to have the duty of ensuring that their companies act with the highest ethical standards. This can be famously summed up by Benjamin W. Heineman Jr., former general counsel of General Electric, who wrote: 鈥淔or the lawyer-statesperson, the first question is: 鈥業s it legal?鈥� But the ultimate question is: 鈥業s it right?鈥欌��

For Duke Energy, having a reputation for doing the right thing is the basis for maintaining 鈥渆xcellent relationships with our stakeholders, including our shareholders, employees, customers, and the communities we serve,鈥� explains Ghartey-Tagoe, adding that in a highly regulated industry like energy, trust and transparency are essential to have a productive relationship with regulators at the federal and state levels.

Tse and Caruso, whose companies are global, both cited the crisis in Ukraine as a real-time example of how companies are being asked to do the right thing. 鈥淭he overwhelming majority of the world is looking at major corporations doing business in Russia and asking, 鈥楢re you guys going to pull out of Russia?鈥欌�� says JLL鈥檚 Tse. 鈥淭here鈥檚 no law that says that we have to leave. But guess what? We are leaving Russia because, for us, it is clearly the right thing to do.鈥�

Although Jacobs does not do business in Russia, Caruso says the company is looking for ways to assist their employees working in Ukraine and other countries like Poland who have family in Ukraine or are otherwise impacted by the war. Recently, Jacobs鈥� executive team gathered to discuss what the company should do to help its employees and clients impacted by the war, she says. 鈥淚 will never forget how our CEO began the meeting by asking the most profound question, 鈥榃ell, what would we do if it was one of us?鈥欌��

Leader of the law department & beyond

CLO鈥檚 widening circle of influence is borne out by the increasing number of functions outside of the corporate law department that now report to them. According to the 鈥檚 2022 Chief Legal Officers Survey, 88% of CLOs oversee compliance, 54% assume the role of corporate secretary, close to 50% oversee ethics and privacy, 25% oversee ESG, and 24% lead business risk. Interestingly, the survey also found that the trend took a sharp upward turn in 2020.

Ghartey-Tagoe, Tse, and Caruso view their broadening oversight responsibilities as a reflection of the areas that have become mission-critical. At Duke Energy, for example, the internal audit and the ethics and compliance teams report to Ghartey-Tagoe. At Jacobs, the global security team and the Sales Center of Excellence team report to Caruso; and, at JLL, Tse oversees the business continuity and risk teams. From an organizational perspective, having these functions report to the CLO also underscores the need for greater collaboration among these functions.

Conclusions

Chief legal officers鈥� place at the executive table and the boardroom elevates their influence as leaders, strategists, and advisors. Extending their remit outside the law department into other strategically significant functions 鈥� a trend that is likely to continue 鈥� will only widen their sphere of influence and deepen their business impact.

In this installment of In Practice, Rose Ors, CEO of ClientSmart, spoke to Michelle-Kim Cohn, Deputy General Counsel at Dassault Syst猫mes, about how the global technology company employs scenario planning and simulations to prepare the company to respond to low- and high-probability, high-impact risks.

Rose Ors: Why do you engage in scenario planning and simulations?听

Michelle-Kim Cohen: These tools are extremely valuable to plan effective ways for the company to respond in an actual crisis. During the scenario analysis phase, we examine trends and other data to identify contingencies that, if they occur, will significantly impact company operations. The analysis does not identify every possible contingency 鈥� the COVID-19 pandemic is a great unforeseen example 鈥� nor precisely how the contingency will unfold. What the process does is identify plausible scenarios.

We establish written policies and procedures for each event and develop the appropriate training tools. We test the efficacy of our crisis response tools with simulations 鈥� what we call drills 鈥� in low-stress environments. Each drill is a dress rehearsal that informs us on what steps work well and what steps must be changed and refined before an actual crisis hits. These drills give us a lens into the readiness of the response team and other company personnel.

It is a given that human error will be a factor in high-stress situations. The goal is to minimize errors through regular training and practice.

Rose Ors: What are other benefits?听

Michelle-Kim Cohen:听Another significant benefit is the high level of trust that the process builds among the scenario-planning team members. Most of our teams are composed of legal and a cross-section of subject-matter experts from other business units. When we come together, we leave our functional silos and don a mindset where learning from and respecting divergent viewpoints matters.

It is a given that human error will be a factor in high-stress situations. The goal is to minimize errors through regular training and practice.

Another benefit of our work on scenarios has played out in our response to the pandemic. Because of the geographies in which we operate, we plan for and practice our response to natural disasters 鈥� fires, earthquakes, extreme weather. Although we had no response plan for a health crisis, our natural disaster plans and drills allowed us to quickly pivot to a full-remote operation and again pivot to returning to the office. Our natural disaster response strategy proved invaluable, particularly our emergency communication and IT plans. Of course, the COVID-19 pandemic, unlike most natural disasters, has been a far more prolonged crisis that requires a different playbook, which continues to evolve.

Rose Ors: Can you say more about the composition of the scenario team?听

Michelle-Kim Cohen: A member of our legal team always has a seat at the table. The team can also include a member from ethics and compliance, human resources, IT, communications, safety and security, and other units whose expertise is needed for each scenario. Our policies and drills aim to protect our employees’ health and safety, the privacy of our stakeholders, and our ability to support our customers.

The nature of the work requires that we understand our respective roles and responsibilities and join together as a crisis response team that can make quick decisions and act in a coordinated way within a high-stress, fast-moving environment.

Rose Ors: Let’s now talk more about the simulations and drills you conduct. What are some examples?听

Michelle-Kim Cohen:听In addition to drills听on what to do听in response to natural disasters, we conduct simulations that test our readiness to respond if the government pays us a surprise visit. This scenario is most plausible for our offices operating in the European Union but also can occur in the US. We make the exercise mirror an actual event as closely as possible.

We also conduct drills to prepare the company for geopolitical risk. In Latin America, for example, we run drills on responding to political demonstrations and other types of political events that could impact operations. Although not drills, we conduct active shooter training in North America 鈥� live classroom-type training and online exercise in all our offices.

Rose Ors: Do you debrief after each actual event or simulation?

Michelle-Kim Cohen: We do a debrief right after every incident response 鈥� actual or simulated. We call the debrief an audit, and it鈥檚 a critical step. The audit may consist of several group emails or an all-hands meeting, depending on the scenario. In either case, we assess our strengths and vulnerabilities and then take the necessary steps to improve the plans and training. In addition to these audits, we regularly evaluate our written policies and procedures. The pandemic drove home an important lesson: complacency is not an option.

Rose Ors: Where do you store the plans and processes 鈥� decision trees and the like 鈥� so that everyone who needs to access them in a high-stress scenario can access them quickly?听

Michelle-Kim Cohen:听Your听question came up recently during a panel I was on that was organized by the Association of Corporate Counsel. It was interesting to see so many hands go up when the moderator asked how many kept their plans in a physical binder in their office. My advice is to store the most up-to-date procedures on whatever secure company system you use, so it is available from a mobile device.

Rose Ors: How do you measure the success of each scenario response in an actual crisis?

Michelle-Kim Cohen:听The goal is not to execute everything flawlessly 鈥� that is an impossibility. The goal is to perform well enough where the听principal objective of the response is achieved. So, if the aim during a cyberattack is to protect sensitive data from being stolen, the objective is met. Objectives range from business continuity to employee safety to regulatory compliance.

In an ongoing crisis 鈥� the pandemic is an apt example 鈥� our goals evolved as the state of the pandemic evolved and ranged from the speed we transitioned to remote work to the effectiveness of our communications with employees and customers.

Rose Ors: How key is leadership-level participation during the scenario planning process?

Michelle-Kim Cohen: C-Suite support is always essential to developing a culture that emphasizes risk intelligence and response preparedness. The leadership must also signal to the workforce that preparedness is a high priority by modeling the behavior they expect.

Rose Ors: Why is it essential for a law department to have a strategy?

Bjarne Tellmann: The overarching goal of having a strategy is to articulate how the department will add value to the enterprise. The process by which the plan is developed is the most disciplined and data-driven exercise to align the legal department鈥檚 goals with the company’s strategic objectives.

The product of the exercise 鈥� the strategic plan 鈥� is the roadmap that guides and keeps the legal team on track by memorializing the department’s goals, while identifying the types of resources needed to meet the goals and the metrics to gauge performance against the goals. The plan also provides the legal team with a detailed picture of how their role matters.

Rose Ors: What is the crucial “success” factor in designing and executing a legal strategy?

Bjarne Tellmann: Alignment with the business. The first step towards alignment is to understand the company’s strategy. Most high-performing companies have a layered strategic planning process that starts on the macro level and identifies the significant trends that are likely to impact the business over 10 years. Next, they translate how these trends are likely to affect the next three years, then the next 12 months. So, to be aligned with the business, the legal leadership team must be deeply versed in how their company develops its strategy and how it defines success at each level.

Alignment also requires the legal leadership team to understand the success metrics of each of the business units they support. One of the best strategic planning processes I’ve been part of included a calibration exercise where my leadership team met with our counterparts from other functions for an off-site that was the equivalent of two days of speed-dating. Each day, my team and I met with counterparts from sales, procurement, HR, and several other groups to discuss their priorities and objectives, and how they would like us to help them. They, in turn, learned what we needed from them. It was an eye-opening and highly effective alignment exercise.

Rose Ors: An increasing number of law departments now have a legal operations team. What role should the head of legal operations play in the strategic planning process?

Bjarne Tellmann: It depends on the experience and capabilities of the person in the role. Our head of legal operations is part of my leadership team and is the head of strategy, so he plays a vital role in the entire process. There is a great deal of information and input that needs to be collected and organized before we meet to develop our strategy. He leads the day-to-day efforts to ensure all the foundational work is done well and on schedule.

Rose Ors: Who needs to be in the room during the strategic planning sessions?

Bjarne Tellmann: The General Counsel, the legal leadership team, and key clients should all be at the first meeting. The principal role of the GC is to chair the session by setting the tone, articulating the department’s vision and purpose, and asking questions of the group that allow her to make informed decisions on the future direction and focus of the department. At the first meeting, members of the leadership team share feedback from clients and other business units that support legal. Of course, the involvement of key clients is essential to ensure the alignment of objectives and expectations.

Once the strategic plan has undergone several iterations, the strategy team should meet with the external partners 鈥� key among them, outside counsel and alternative legal service providers. I need to underscore the importance of having these providers at the table. As our partners, they must have a clear picture of our vision, priorities, and how we measure success. We also need to learn what they need from us.

Rose Ors: Is scenario planning part of the strategy process or a separate exercise?

Bjarne Tellmann: Strategic and scenario planning are separate exercises that can be done in tandem. The purpose of scenario planning is to identify and mitigate risks. Strategic planning, as we’ve been discussing, has a wider aperture. What both processes consider are “unknown” risks 鈥� what Donald Rumsfeld called “known unknowns鈥� and “unknown unknowns.”

Rose Ors: How do you plan for the “known unknowns” and “unknown unknowns”?

Bjarne Tellmann: Planning is crucial, but what is required to withstand an unknown shock is an organizational operating model that is highly adaptable, resilient, and agile. In an ideal world, you would develop what Nassim Nicholas Taleb, author of The Black Swan: The Impact of the Highly Improbable, calls, an “anti-fragile” organization model. Such a model would react like a muscle that gets stronger in response to tension and pressure. This state is tough to achieve, however, so resiliency is the first step. The pandemic is a perfect example of how resilient organizations have adapted 鈥� some have even displayed elements of anti-fragility in that they have not just adapted, they’ve thrived.

Rose Ors: How do you ensure the strategy is executed as planned?

Bjarne Tellmann: The plan should incorporate key performance indicators (KPIs) and other metrics that enable the leadership team to measure progress made in achieving strategic objectives. The team should meet regularly to determine what changes must be made when the metrics show you鈥檙e off target.

Rose Ors: How does the annual budget process align with the strategy process?

Bjarne Tellmann: The budget process should be linked to the strategic planning process. In budgeting, it is important to distinguish between costs and investments. The latter yield a return over time and are often closely tied to strategic priorities. For example, rolling out a process optimization and technology project is an investment that yields a return on investment (ROI) over time, whereas headcount is a cost.

Rose Ors: My last two questions are about the legal strategy’s impact on culture and purpose. How does having a legal strategy impact the department’s culture?

Bjarne Tellmann: They are co-dependent. A department anchored by a clear purpose and strategy has specific cultural characteristics, including a commitment to the company, a deep understanding of the business, and a willingness to learn, experiment, change, and adapt. Without a clear strategy, you risk having a chaotic and reactive culture that succumbs to the tyranny of the urgent.

Rose Ors: What is the correlation between purpose and strategy?

Bjarne Tellmann: Strategy flows from purpose. A department’s purpose answers two foundational questions: Why do we exist? What unique capabilities and skillsets do you bring to the table that add value? The strategy is the roadmap that ensures the department delivers on that purpose.

In this installment of In Practice, Rose Ors, CEO of ClientSmart, speaks with Howard Fischer, partner at and former SEC prosecutor, about what corporations can expect from the agency and the role general counsel can play in setting and driving ESG strategy.

Rose Ors:听The SEC is expected to announce new disclosure rules for public companies on ESG-related matters, including enhanced climate and human capital management disclosures. What can we expect?

Howard Fischer: On climate, the SEC will likely require that companies provide fuller disclosures on their sustainability efforts. The agency could also mandate disclosures on companies鈥� climate burdens, what they are doing to ameliorate those burdens, and how they plan to measure their mitigation efforts. The new rules could also require disclosures on governance, strategy, and risk management related to climate matters.

On the human capital front, the SEC is focused on increasing diversity on corporate boards and in the workforce. The agency is likely to adopt an equivalent of Nasdaq鈥檚 Board Diversity Rule 鈥� approved by the SEC in 2021. The Board Diversity Rule 鈥� Rule 5605(f) 鈥� requires that Nasdaq-listed companies have a minimum of two diverse directors on their board or disclose the reason for noncompliance. It also mandates an annual board diversity data report in a prescribed format. To facilitate compliance with Rule 5605(f), the SEC also approved the creation of a diversity recruitment portal that companies can access to identify diverse candidates.

On workforce diversity, companies are now required to disclose the size of their employee base and any human capital objective they use to manage their businesses. The SEC seems likely to require companies to disclose their workforce diversity numbers, the diversity targets they have set, and periodic reports on where they stand in meeting those targets. The SEC has not defined the term 鈥渉uman capital鈥� but requires companies to disclose any human capital factor that is 鈥渕aterial to an understanding of the registrant鈥檚 business.鈥�

The question that naturally arises is what is deemed 鈥渕aterial?鈥� The new rules may answer the question by mandating a host of disclosures, such as a company鈥檚 workforce recruiting and retention practices, the diversity of management personnel, as well as companies鈥� talent development and training programs.

Rose Ors: What is the impetus for the SEC鈥檚 push for more robust disclosures?

Howard Fischer: The SEC鈥檚 animating goal is that because investors consider ESG disclosures material in making informed investment decisions, the disclosures need to be detailed and accurate. Moreover, for investors to compare ESG data among comparable companies in the same sector, the data needs to be presented in a manner that facilitates an apples-to-apples review.

Rose Ors: Moving now to the enforcement side of the equation. How vigorously can we expect the SEC to investigate potential ESG-related violations?

Howard Fischer: Whenever the SEC creates a task force to identify and investigate violations, we can count on a full-court press enforcement effort. In March 2021, the agency signaled its intent to do just that when it created the Climate & ESG Task Force within the Division of Enforcement.

Rose Ors: Can we also expect an increase in criminal enforcement for environmental violations by the U.S. Department of Justice (DOJ)?

Howard Fischer: Top DOJ lawyers have publicly signaled just such a scenario. Last October, Deputy Attorney General Lisa Monaco made it unequivocally clear that the 鈥渁bsence of corporate compliance programs鈥� will 鈥渋nevitably [be] a costly omission鈥�. She explained that individual accountability is the 鈥渇irst priority in corporate criminal matters鈥� 鈥� and also that a company鈥檚 history of environmental misconduct will also be taken into account by prosecutors.

Then in December, Todd Kim, head of the DOJ鈥檚 Environment & Natural Resources Division, echoed the DOJ鈥檚 crackdown, noting that 鈥渆nforcement of the criminal provisions of the environmental laws is a priority.鈥澨齂im also noted that the DOJ will continue its focus on supply chain issues and cautioned that companies should be 鈥渆xercising due care over its supply chain in light of the prospect of criminal sanction.鈥�

Rose Ors: Let鈥檚 move now to how companies can prepare for these regulatory changes. Specifically, what is the role of a company鈥檚 general counsel (GC) in these situations?

Howard Fischer: The GC should take a substantial role in infusing a sustainability lens into corporate governance, strategy, and business practices. On the governance side, for example, the board of directors must be fully apprised of their oversight responsibilities on sustainability-related risks. The same is true for the C-Suite.

The GC has the credentials, the credibility, and the access to lead the effort in educating and updating the board and the C-Suite on how current and emerging ESG regulations impact their respective roles.

Rose Ors: What鈥檚 an example of how the GC can work with the full board or the board鈥檚 ESG committee?

Howard Fischer: The GC can work with the committee on assessing sustainability risks and how best to disclose those risks by developing disclosure and reporting protocols. The GC also can play a role in determining what disclosures are material; and, because reporting standards are evolving, the GC should conduct periodic reviews to ensure disclosures continue to be material and accurate.

The GC should understand that ESG encompasses a broad set of issues that touches many functional areas in a company. That said, the GC should work with the heads of sustainability, strategy, risk, HR, communications, investor relations, and government relations. Bringing these groups to the table will ensure an all-hands compliance focus on fully integrating each element of ESG in strategy, operations, disclosures, and reporting.

Rose Ors: How should the GC work with regulators, and why is it essential to do so?

Howard Fischer: The GC should establish strong relationships with regulators for several reasons. First, the GC needs to actively engage with regulators to shape regulations that affect their company. Second, understanding the issues and priorities of these regulators allows the GC to anticipate and avert potential regulatory pitfalls. Third, the more regulators know the company鈥檚 business and the more credibility the GC has earned in their eyes, the greater the likelihood that in a dispute or crisis, the company鈥檚 position will be fully heard and taken into consideration.

Rose Ors: Is there an upside for companies amid this flurry of regulations?

Howard Fischer: I would argue that there is an upside because, in my experience, it is a strategic mistake to view ESG compliance solely as a risk and liability issue. The far better approach is to consider ESG compliance as a source of competitive advantage. Being ahead of the compliance curve in this space is a significant way a company can distinguish itself to investors, consumers, and employees.

My advice to companies is to know what their competitors are doing on ESG 鈥� and do it better.

Why is communication so central to establishing, enhancing, and cultivating a vibrant purpose and culture? Because communication is a significant way that an organization signals why it exists and what it values. Indeed, the pandemic placed a spotlight on the critical role communication plays in keeping purpose and culture alive.

The who 鈥� Communicating purpose and culture starts at the top but should not stop with the CEO, the C-suite, or other traditional leadership roles. Organizations should also enlist their HR, communications, and design teams to collaborate to fashion engaging ways of bringing organizational purpose and culture to life.

For more on the importance of bringing purpose & culture into your workplace, see our In Practice interview with Dev Stahlkopf of Cisco.

Similarly, these teams should roll out programs to train front-line managers, team leaders, and other group leaders to be purpose and cultural champions and ambassadors.

The how 鈥� There is a myriad of ways to bring an organization鈥檚 purpose and culture to life. Of course, how an organization produces the goods and services it offers tell volumes about a company鈥檚 purpose and culture; as does an organization鈥檚 policies, benefits, and programs. But to keep the heartbeat of purpose and culture vibrant requires more, including:

• • • Townhalls, forums & roundtables 鈥� These gatherings (in-person or virtual) can be large or small, and can be led by a range of leaders from the CEO to other members of the C-suite (such as the Chief Diversity & Inclusion Officer), unit heads (for example, the head of Product Development), and the leads of special projects (such as the head of Community Outreach).
    • Celebrations 鈥� These gatherings (again, in-person or virtual) bring together the whole organization or groups within the organization to celebrate milestones, anniversaries, and other achievements. They celebrate outcomes that support purpose and culture in tangible ways.
    • Retreats 鈥� Holding retreats or similar gatherings provides a space for employee groups to strengthen personal bonds, engage in creative and playful activities, and discuss crucial work challenges and opportunities in a relaxed and energizing environment.
    • Coffee meet-ups, Happy Hours, book clubs, meditation & gratitude sessions 鈥� These informal gatherings help enhance the workforce experience in ways that energize organizational culture through a sense of community and connectedness.
    • Blogs, podcasts & videos 鈥� These communication channels, in addition to sharing company news, offer an opportunity to spotlight the contributions and success stories of teams and individuals creatively and poignantly.
    • Feedback loops 鈥� Employee surveys, polls, and other feedback tools give employees a direct way to share how they experience their organization鈥檚 purpose and culture.
    • Employee confidential hotline 鈥� An organization鈥檚 purpose and culture are protected by providing employees a safe way to call out behaviors that are inconsistent with what the organization values. A confidential hotline or similar reporting vehicle sends a strong signal that everyone in the organization is a guardian of those values.

Communication is oxygen for organizations 鈥� and organizations that utilize communication as a key enabler of purpose and culture will reap the benefits of an engaged workforce, one that demonstrates the purpose and culture of the organization through everyday actions and interactions.

Rose Ors: How is Cisco’s purpose reflected in what the company does?

Dev Stahlkopf:听As someone who is new to the company, I am still learning about all the ways Cisco brings that to life, but I will tell you it is palpable in the company’s culture. Looking outward, it means the company is profoundly aware of and is actively committed to doing good for the benefit of all its stakeholders. It means we share our technology and expertise to better the lives of those in our community. It means we partner with other organizations to address problems, such as global hunger. Looking inward, we want to unleash the full power of our employees to help ensure the company realizes its purpose.

Rose Ors: How does the law department serve the community?

Dev Stahlkopf:听The law department serves the immediate community by providing pro bono legal services. Locally, our pro bono program includes a long-standing partnership with the Law Foundation of Silicon Valley, helping low-income clients address legal matters, such as landlord-tenant disputes. I am working with our pro bono steering committee to determine how we can expand our program and better align it with the company’s Corporate Social Responsibility goals.

The Cisco legal team also serves the broader community via involvement in outside organizations, such as the Leadership Council on Legal Diversity (LCLD), where I am a board member. LCLD is comprised of 350 corporate chief legal officers and law firm managing partners who work together to achieve a common purpose: to increase the pipeline of diverse leaders in the legal industry. One of the many reasons I’m proud of being part of LCLD is that each member has committed to being held accountable for an outcome they have pledged to achieve. My personal pledge includes adopting practices like diverse slating requirements to increase diversity in hiring, increasing transparency for career development opportunities, ensuring that diverse succession plans are in place for all senior roles, and driving accountability by making diversity and inclusion a factor in leader performance expectations.

Rose Ors:听You said that unleashing the full power of its employees will help Cisco power an inclusive future for all. What’s the connection?

Dev Stahlkopf:听The more fully employees utilize their potential, the more productive they become. The more productive our employees, the more Cisco can achieve. Thus, we need to help employees reach their potential.

When I refer to productivity, I think of it in broader terms than merely the number of sales made, contracts executed, or lines of code written. I think of it as a sustainable employee experience that helps increase the quality and innovation of the work performed, not merely the quantity. Developing such a sustainable experience requires us to think broadly about employee well-being.

Rose Ors: Is this where conscious culture comes in?

Dev Stahlkopf:听Exactly. Our culture involves creating an inclusive, diverse environment that positively impacts people. It emphasizes the everyday interactions people have with their leaders and colleagues. The culture is “conscious” because it requires us to be aware of and accountable for what’s working, what’s not, and how to improve. It goes beyond the mere concept of inclusion and diversity and forces you to decide what actions to take.

Rose Ors: What are examples of company programs designed to enhance employee well-being and help employees reach their full potential?

Dev Stahlkopf: We participate in a Cisco sponsorship initiative called The Multiplier Effect (TME). The company asks every one of our leaders to sponsor one or more individuals who differ from them in some aspect, whether it be gender, race, culture, generation, orientation, or ethnicity. TME requires those who participate in the program to be advocates and actively seek ways to increase the sponsees’ exposure and access to other leaders.

For more on how your legal team can promote your company鈥檚 purpose and culture, see听our听In Practice Sidebar听here.

Our data shows that since the initiative launched in 2017, TME has exceeded expectations on two fronts: the number of leaders who have become sponsors and the positive impact on the career trajectory of sponsees.

Rose Ors: What has been the impact on sponsees?

Dev Stahlkopf: Our data shows that employees who gain sponsors through the initiative are, on average, 1陆-times more likely to be promoted than those who do not. Certain employees experience an even higher promotion rate, including Black and Asian employees (2.7-times more likely) and Hispanic employees (3.2-times more likely).

Rose Ors: Can you describe a program aimed at employee well-being?

Dev Stahlkopf: In response to the ongoing stress of the pandemic, Cisco has rolled out the “A Day for Me” program to foster and support our collective mental health. The company encourages everyone a few weeks in advance to take a designated company-paid day off 鈥� essentially a pop-up wellness day.听

Rose Ors: Moving now to the legal department, what do you do in everyday interactions with your legal department team to foster a positive, inclusive environment?

Dev Stahlkopf:听I think we all need to feel like our voice matters where we work. We need to be seen, valued, and respected. Deep listening is one way I communicate that I see and care for each member of our team. Deep listening means concentrating on what someone is saying without interrupting them and not thinking about my response until they are finished. Whatever form the conversation takes, I assume good intent on everyone’s part. And finally, if someone is sharing a problem or opportunity, I ask: How can I help?

Another way for people to be seen and valued is a gratitude practice. I start every one of my leadership team meetings having each person, myself included, share what they are grateful for that day or week. More often than not, what is shared is personal. And what is shared is not always about work. Indeed, people share personal stories and not just about the easy things.

This practice allows each of us not only to pause and reflect, it also allows us to be vulnerable with each other in a psychologically safe space.

Rose Ors: I imagine your vulnerability during the gratitude practice allows others to be candid and vulnerable as well.

Dev Stahlkopf:听Absolutely. It is a lesson I have learned over the course of my career. The best leaders I have worked with have been the ones who have been comfortable saying, “Hey, this week was hard,” or “I have this thing going on in my life, and I apologize for being a bit disconnected in the meeting.” It is their openness that permits everybody else to be candid.

In this installment of In Practice, Rose Ors, CEO of ClientSmart, spoke with Connie Brenton, VP of Law, Technology & Operations at NetApp, about how developing a legal technology roadmap maximizes the return on technology investment. Brenton talks about the work that must precede the development of a roadmap, including creating a legal department strategy rooted in deploying the right people, the right processes, and the right technology, for the benefit of the enterprise.

Rose Ors: What is a legal technology roadmap and why is it critical to develop one?

Connie Brenton: A technology roadmap outlines the steps required to successfully roll out technologies that help optimize a legal department’s efficiency and effectiveness. Having a roadmap is critical because it makes the business case for each tech investment. It is also the project management tool that outlines what, when, and how technology will be rolled out.

Rose Ors: What work has to be done before developing the roadmap?

Connie Brenton: The legal department must first have a strategy that establishes its purpose and priorities. Next, the department needs to track the department’s types of work, who does the work, and the processes used to perform the work, taking a deep dive into the what, the who, and the how.

Rose Ors: Why is mapping out how work currently gets done important?

Connie Brenton: The process map allows you to identify the inefficiencies and the root causes of those inefficiencies 鈥� this mapping prioritizes what must be fixed. Once those priorities are established, you can develop a technology roadmap that spotlights what tech investments to make, sets a timeline for implementation, and develops a budget.

For more on how your team can develop a technology roadmap, see our In Practice Sidebar here.

You always need to prioritize what you will improve to ensure that limited resources are properly allocated and that the resources will be adequate to properly complete the tasks.

Rose Ors: What are the pitfalls of not doing the upfront analysis you’ve just described?

Connie Brenton: Today, there is no single technology platform. What exists are individual technologies 鈥� components, really 鈥� offered by different legal tech vendors. These components require assembly into an integrated system that works with existing legal and enterprise-wide technologies.

The process is akin to assembling a high-end stereo system. You select the highest-quality components from different vendors, determine their compatibility, and integrate them. If you do not thoroughly identify all the necessary interconnections, you risk choosing a configuration that does not meet all of your needs.

Rose Ors: How do you prioritize what technologies to roll out?

Connie Brenton: Each roadmap is unique to each department. What sets the priorities is the department’s strategy. Only then can you decide the importance of improving how a particular type of work gets done. For example, if you have identified a significant bottleneck in getting contracts signed, you may prioritize rolling out an electronic signature technology.

Another key question is resource allocation. What company resources are required to integrate new technology with the current enterprise-wide or legal department system? If you want to buy a technology that will require a lot of the company’s IT resources, you have to get them on board at the very outset and recognize you may need to defer or delay other tech rollouts that require IT’s resources. The resource allocation issue is why technology roadmaps are usually three-to-five-year strategies.

Rose Ors: How do you know what technologies are available?

Connie Brenton: Technology innovation in the legal industry is happening at record speed. There is no single source that will be able to answer all your questions. You need to actively network the legal operations community and benefit from their collective experience.

In asking for recommendations, remember that both the technology and the team behind the technology, specifically the developers, matter. The developers are vital in offering ongoing support, both in training and improving the technology over time. Think of them as partners.

Anytime you roll out a technology tool, it is a given that not everything will work as intended and you need to tweak things. I assemble implementation teams composed of people from NetApp and third-party providers because their diverse experiences help them identify different problems at different times 鈥� and typically sooner than a group with a narrower range of experience. The faster you can identify a problem, the faster you can fix it.

Rose Ors: Any final piece of advice?

Connie Brenton: To keep top of mind that the actual technology tool you choose is the least important part of the roadmap process. There is a tendency to think that investing in technology will be a magic wand that will solve the problem you are trying to fix.

You have to do the hard work of developing a tech roadmap, have the discipline to adhere to it, and the commitment to overcome the change management hurdles you will encounter.

In advance of developing a roadmap, however, the head of legal operations and her team must ask and answer a series of questions to ensure that legal tech investments are made to advance strategic goals. The answers to the questions will be unique to each legal department, of course; but the overarching benefit of undertaking this Q&A exercise will allow the department to uncover and refine the best way in which new technology can help it control costs, increase operational efficiencies, and optimize how the legal team spends its time.

Although not exhaustive, below are foundational questions that will help spark the necessary conversations and research crucial to developing a roadmap that persuades, informs, and guides.

Strategic questions:

• • • What are the company鈥檚 strategic priorities for the next three to five years?
    • What are the legal department鈥檚 strategic priorities in support of the company鈥檚 priorities?

Operational questions:

• • • What work is currently being done by which members of the legal department?
    • What workflow processes are currently in place?
    • What workflow processes need a revamp or tweaking?
    • Can the company鈥檚 existing technology be used to optimize the department鈥檚 processes?
    • Can the legal department鈥檚 existing tech tools be improved to optimize workflows?
    • What work currently done by the legal team can be completed by the business units via self-service and automated systems?
    • What tech investments should we consider in the short term? The long-term?
    • What resources 鈥� budget and expertise 鈥� are needed in the short term? In the long-term?

For more on the importance of utilizing a tech roadmap, see our In Practice interview with Connie Brenton, of NetApp