Corporate Lawyers Can Be More Than Naysayers-in-Chief

In-house counsel can get a bad rap, but with a little creativity, they can enable their companies to do right by workers and the environment.

Lauren Giordano / The Atlantic

When Microsoft offered Brad Smith its top legal job in Europe in 1993, he turned it down.* “In the late 80s, early 90s,” he told me, “People did not want to leave law firms to go in-house like they do today.” He assumed the job would be more of the same compliance-driven advice-dispensing that he was already doing as the company’s outside counsel.

But the firm convinced him that they wanted him to come onboard to think more broadly and proactively. So he joined, and his work since has indeed been a demonstration of this expansive mandate; for example, he has led the implementation of a new human-rights policy, which means instituting improved processes to better protect free expression and privacy across Microsoft’s products and services. He has also overseen the development of programs in financial management and other life skills for factory workers in China who build Microsoft's tablets and Xboxes. Perhaps most importantly, he has become a sort of ambassador from the tech world to Washington, D.C., and beyond, educating lawmakers and others about technology and bringing outside concerns back into the company.

Smith is unusual. For those who want to push sustainability or other positive innovations in their companies, the rap on the lawyer is that he or she might as well be called the Chief Roadblocker. As Bob Langert, a former vice president of sustainability for McDonald’s, recently wrote for “In my travels and discussions with peers, the topic of working with lawyers draws some sighs and exasperation. I hear: They block me. They’re barriers. It’s us versus them.”

But it doesn’t have to be that way. John Ruggie was an assistant secretary-general of the United Nations in 1999, when Disney was building a “pavilion of nations” to celebrate the turn of the century. Ruggie was collaborating on ideas for a U.N. presence, such as pretend U.N. passports that guests could have stamped at country exhibits. Just before the grand opening, Ruggie told me that he received a seven-page memo from the U.N. legal department on why they couldn’t participate. Ruggie said he nervously walked the memo into then-Secretary General Kofi Annan’s office and asked what he should do. “Go back to Legal,” Annan replied, “and ask them for a one-page memo on why we can do it.”

Where does that stereotype of the Lawyer as Head Naysayer come from? Jonathan Drimmer, deputy general counsel at the mining company Barrick Gold, suggested that lawyers realize they’re the only ones in the room inclined to put the brakes on, so feel some obligation to do so."To some extent it can be the segmentation of responsibilities: It is seen as other people's jobs to want to go forward," he said. "Lawyers are trained and expected to be the counterbalance and identify risks so everyone understands what potential ramifications are."

Yet Drimmer suggested that the role of a good lawyer is not just to identify risks that lead them to say no—what he calls “young lawyer syndrome”—but to determine a way to mitigate those risks and help the company move forward, which requires experience and confidence.

Therese Lee, a lawyer who leads Google’s global anti-bribery compliance program (which covers the company’s myriad interactions with governments, including securing permits for everything from offices and data centers to their Project Loon networked balloons), told me: “We see our mission as not one of bottlenecking or mindlessly saying ‘no.’ It's more about helping the business to achieve its stated goals in a way that both mitigates unnecessary risk and includes an informed risk calculation.”

Wilma Wallace is a senior lawyer and vice president of sustainability at Gap Inc. who is leading the company’s entry into Burma; Gap Inc. is the first U.S. apparel company to begin sourcing there. Like Microsoft’s Smith, Wallace’s role goes well beyond ensuring compliance with the law, not least because in some cases it’s not clear what the law is: For example, Burma requires companies to pay a minimum wage, but hasn’t yet established what that wage is.

Wallace and her Gap Inc. colleagues are working with the U.S. government, other companies, and international labor-rights groups to support the Burmese government as they develop labor protections. The goal is not to push wages down: Ongoing worker protests across Asia, including in Cambodia and China, show that lowering pay in the hopes of attracting foreign investment is not a sustainable solution. “Putting in place strong labor protections is, in the long run, good for workers and good for business,” Wallace told me.

The lawyers I interviewed want to be seen by their colleagues as partners rather than gatekeepers. Nithya Das, senior vice president and general counsel at AppNexus, a tech firm that powers internet ad auctions, told me, “To me the goal is for my clients to think of me as the business partner, not just a lawyer.” She then said with pride, “Somebody sent me an email the other day and said, ‘I dropped all the lawyers from the thread.’ I actually had to remind them that I was a lawyer!”

And if they don’t get viewed as partners, well, they can muscle their way into conversations with the backing of the law. When JoAnn Stonier started as Chief Privacy Officer at Mastercard in 2008, she told me that she had to “gently elbow my way to the table with the product folk.” But then she had to halt a few products late in the development lifecycle when it became clear that engineers hadn’t adequately considered potential risks to user data. “We have to redesign, which is really painful and really expensive; that makes it really easy to remember to invite me or my team earlier next time.”

That veto power has brought Stonier into the design process earlier and earlier: “Now we’re actually trying to figure out how to not only be part of product design; we’re working on data ideation, which is earlier in the process. By the time you get to the design phase you may be so far down a path of commitment that we may need to be in ideation to be able to say, ‘No, that doesn’t work in these three markets, because the laws keep evolving.’”

Which is very much in keeping with Brad Smith’s view of his function at Microsoft. “We give advice not only about where the law is today, but where we think the law is going to be in three and five or 10 years. It's not very helpful to tell people where the law is in 2014 if our products will be finished in 2016 and we expect the law to change between now and then.”

Indeed, one theme that ran through many of the roles I explored for this series is the need to get embedded in the design process in order to influence meaningful change. We’ll turn to the people who work in product design next.

*This article originally stated that Brad Smith was offered Microsoft’s top legal job. We regret the error.