Balancing the need to specialize against covering the bases
- Subtitle: Practising In-house
One of the prime challenges faced by in-house counsel is balancing the increasing specialization of law with the need to continue to cover the bases in a general way.
Here are some practical strategies that I have found to be useful.
First, it is critical to have a clear understanding of the client’s core business or organizational objectives.
This filter, through which narrow and broad issues need to be assessed, should be at the foundation of your practice. I use it as the starting point of my analysis, and then perform a final check before pushing the send key: “Does this serve the firm’s core objectives?” Reviewing an issue too narrowly or too broadly runs the risk of not achieving the firm’s fixed goals.
Second, it is important to be honest and candid in terms of your ability to provide legal support in specialized areas. On matters in which I am comfortable, I provide legal support on either a specialized or a broad basis. Beyond that, I recognize that my role requires me to spot issues for experts within the company as well as for outside legal counsel. I marry my knowledge of the client’s business and its core objectives and birddog issues that require subject matter experts. To do this effectively, I need to honestly recognize my limitations as well as exercise judgment and knowledge in identifying and framing issues for others. I remain involved where appropriate and ensure that open issues are resolved internally or externally by those equipped with the required specialized knowledge. Framing the issues properly and ensuring that the expert has a firm grasp of the relevant facts is critical, particularly when engaging external counsel. Spending time with the expert to learn about the complexities of the law will help with issue-spotting and framing in the future. Merely throwing an issue over the fence is a lost opportunity.
Third, it is important to recognize in-house counsel’s role as a knowledge integrator across the firm’s various departments and disciplines. The legal department is bombarded both internally and externally.
Part of maintaining the balance between specializations and covering the bases simply consists of synthesizing inputs, and passing on information to the appropriate decision-makers in a digestible manner. This is different than framing issues. Synthesizing involves knowing which facts to pass on and to whom so that the appropriate subject matter expert can frame the issues properly. To be effective in this role requires a solid understanding of the firm’s organizational chart: Who is responsible for what, what do they need to know to carry out their responsibilities and how can I help fulfil them? The ability to disseminate this information is an invaluable function of an in-house legal department.
Fourth, it is sometimes necessary to become an expert in a non-legal field that is important to in-house counsel’s job. For example, whether I am working on a licensing agreement, a research and development contract or a sales representative agreement, I need to have a good grasp of generally accepted accounting rules or international financial reporting standards. How and when will revenue be recognized?
A lack of knowledge regarding accounting standards may cause revenue to be recognized too early or not at all. It is important to understand the rules, in this non-legal area, both in negotiating and drafting contracts. Because accounting is not taught in law school, the knowledge has to be obtained somewhere, perhaps from online tutorials, presentations by the finance department or external training. Recognize those important related non-legal areas and get on top of them one way or another.
Finally, it is important to remember that you are likely the only member of the senior management team who has knowledge of the law. If a legal issue is missed, the X is often on your back. This special responsibility requires that you not only keep up to date with the law but that you not stray too far by focusing on issues from a business perspective. The right business direction may not be the right legal direction no matter how compelling the business case or return on investment might be. It’s important to do a gut check and ask yourself how does the law impact on the proposed direction? Is there an applicable law that needs to be taken into account? Because specialized law may be outside of your purview, it is important to develop a feel for the types of policy, social, moralistic and other interests that typically resonate with legislators. That feel will help you surface potential legal issues for subject matter experts to examine.
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