Speaking on a recent episode of The Corporate Counsel Show, produced in partnership with Wolters Kluwer, the pair discussed what’s keeping in-house counsel awake at night, off the back of the annual In-house Counsel Trends Survey Report for 2023.

Released in June, the report examined key practices, areas of concern, and challenges for in-house legal counsel over the course of the last year that will shape the future of the profession.

Four months on, Mr Coss said that there’s a “long list” of things keeping in-house lawyers up at night – and that it’s important to be keeping track of how these things are developing over time.

“Leading, of course, cyber security will come as no surprise to anyone that that is the leading topic keeping in-house counsel awake at night, with 78 per cent of our members who took the survey identifying that as their topic of most concern. Now, that represents a 30 per cent increase on the 2021 survey, which is obviously quite significant against the backdrop of the cyber breaches we’ve seen at Medibank and other high-profile organisations; again, this statistic is not surprising,” he explained.

“Similarly, data privacy and information governance has been separately identified in the survey as a major concern for our members in our in-house counsel, and in third spot, ECG regulations and compliance, with 39 per cent of survey participants identifying that as a concern. And again, that’s not surprising when you read the headlines about ASIC bringing enforcement proceedings against MRSA and other organisations only very recently in the last sort of six to 12 months. So that will be of increasing concern and one to watch in the next survey.

“And last but not least of the more high-profile risks. Keeping people awake at night is the shortage in workforce and skills, which I think over the last couple of years, particularly post-COVID, we’ve seen an environment where it’s been very employee-friendly, shall I say, in-house. Legal wage increases have been significant, and that is reflective of the fact that it is an employee market and the market for labour has been very tight.”

In terms of key takeaways in-house counsel can take from the report, and the increasing number of competing priorities in 2023, there were a variety of interesting “macro themes”, according to Ms Sachdev.

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“The report kind of points to being a trusted business advisor, being a teacher, being a strategist, being a compliance leader, being the keeper of the business’s risk appetite, the board advisor, they often oversee multiple functions. So, carving out some time to nurture an authentic relationship to the business is always going to be a priority in this environment just to try and keep up with that pace and that complexity,” she explained.

“And then you’ve got just the not small issue of running a good value cost centre, being strategic about where and when to outsource and harnessing the technology internally to win back more time. You can see that feature in the report quite a bit. And then lastly, individuals finding a 2023 version of a work/life balance in a post-COVID world, having experienced flexibility. And that genie is not going back in the box as a way to balance out those heavy workloads.”

The in-house market is responding to these challenges, added Mr Coss, with an increased use of legal tech despite budgetary concerns.

“A lot of people have reported an increased take up of legal tech, although there is also a sense that clearly budgets are always constrained. Legal tech usually doesn’t come free, so that is definitely holding us back from taking full advantage of technology. There’s also a limited knowledge in the in-house community about what it is that’s out there. And there are so many products, it’s hard to know which one’s right for you. So, that’s also been identified as a constraint,” he added.

“There’s also been a significant uptick in the use of contracting firms, firms that effectively hire lawyers for a limited period or for a specific project. And having used contracting firms myself on several occasions, it’s really a fantastic way to balance out the peaks and troughs in legal work.”

In light of these challenges, senior in-house lawyers and law department leaders can learn from each other moving forward.

“There is obviously a dramatic increase in the use of that new law model, and that’s driving efficiency and outsourcing that efficiency through contracts and drafting and things like that. But that’s also put against the backdrop of internal struggles with implementing technology within the organisation. I think that the dramatic increase in the use of the new law business model definitely shows that there’s a desire to work more efficiently, and I think that’s a necessary evil. But I think that there is confusion as to the options available, confusion about which products to use,” Ms Sachdev concluded.

“So, at some point, the legal counsel is going to have to deal with the internal efficiencies that they need to have. And I think coming together and discussing things with each other, learning from each other, learning what didn’t work for other teams is a vital part of this journey of them coming out and implementing technology successfully for their team. Every team will be different, and different things will work differently, but by talking to each other, there is some ability to not make the same mistakes.”

The transcript of this podcast episode was slightly edited for publishing purposes. To listen to the full conversation with Samantha Sachdev and Justin Coss, click below: