Top Ten Questions for General Counsel to Enhance Governance Procedures

  1. Does the Board have a detailed understanding of the procedures and controls currently in place to manage risk, including how potential risks are identified by business units?
  2. Has the Board walked through these procedures and controls to assess any gaps or weaknesses in these controls and processes?
  3. Does the Board bring a professional scepticism to its review of current risk management controls and procedures in order to identify what could go wrong?
  4. Has the Board assessed the adequacy of current risk management procedures and controls by considering “next level” protection and determined whether “next level” protection is appropriate?
  5. Does General Counsel have direct access to the Board?
  6. Is General Counsel able to bring healthy scepticism to Board deliberations?
  7. Has the Board considered the risks of having a gatekeeper (such as the corporate secretary, CEO, or CFO) between General Counsel and the Board?
  8. Has the Board assessed the role of senior management in ensuring that the Board gets unvarnished and candid briefings on potential risks?
  9. Do the Board and its committees actively challenge and probe the information they receive from management and external advisors, particularly in the risk management context?
  10. Could the Board be criticised for relying too heavily on governance process (“form over substance”) or can each director demonstrate that he or she understood, and was satisfied the adequacy of information and analysis received, and that he or she was actively engaged in deliberations in order to defend the decisions made?