Question: What is a “legal function” anyway?
Answer: The legal “function” is a term that both illuminates and obscures. Caveat emptor.
What used to be (and, officially, still is) known as the corporate legal, or law, department has, in recent years, somehow morphed in business-speak into the so-called “legal function.” Like so much business-speak, this slide into a new term can convey, or alternately hide, significant meaning. (See also, Compliance Function, Governance Function, Finance Function, Procurement Function, HR Function, Conjunction Junction….)
The term “legal function” connotes an interesting blend of the people, processes and output of the legal team. As in: the legal function protects the business. Or: the legal function manages outside counsel. Or: the legal function is transforming. The “legal function,” in each case, is a group of people, and what they do, and how they do it. The term encompasses too much — and yet not enough.
For starters, it seems anomalous—and, really, reductive—to refer to a person, or group of people, as a function. A team, yes. A department, sure. Maybe even a cohort, class, collective, or crew. But a function? People perform functions. They are not, individually or collectively, functions themselves. People are people; they are not what they do. At least, they’re not only what they do.
The term “legal function” conflates people with purpose and performance, and when it is used as a substitute for lawyers and legal staff, or the legal department—as the term now often is—it tends to downgrade the people in the mix. That is a dangerous mindset: the blindness or obfuscation fostered by the term can lead to poor analysis, decisions, and outcomes.
The risk in conflating people with what they do arises because the nature and needs of the people who act—who are part of the “legal function”—in many ways determine the nature and quality of what such people produce. Legal transformation depends on understanding and meeting the needs of individuals and organizations—clients and lawyers/legal teams alike. A term that excises the individuals from the equation ignores a key consideration. Stated differently, if the quality of what the legal team does is determined by who is doing it, then referring to the “who” only inferentially, by reference to their output or “function,” obscures the point, along with insights about challenges and even possible solutions.
To be sure, the shorthand “legal function” may be a useful way, at times, to refer to the broader collection of people, output, and ways of working that characterize lawyers, what they do, and how they do it. Useful, that is, only if it is clear how the term is being deployed. The risk lies in the ambiguity: the most obvious and established meaning of “legal function” refers to what the legal team does. When the term evolves to mean, as well, the people and processes contributing to the doing, that is something else, and those using the term should be clear, both in their own minds, and with others, about which meaning they intend. They should also ask why the meaning has changed.
Many lawyers are “word people”: words, their meanings, and precision in language matter a great deal to them. Governments are organized around, and operate based on, the words written by lawyers. Statutes, regulations, and case law all depend on saying exactly what they mean. Transactions affecting millions of people, and billions of dollars, depend on precision in language. Words matter to lawyers so much that they even have their own language (legalese…or maybe it’s Latin). So, they should be wary when a new word worms its way into wide usage, and think carefully about what the new word means, and what it hides. That is a legal function, indeed.