Ten Things: Getting Internal Investigations Right

There are a number of unpleasant tasks that in-house counsel must perform on occasion.  Probably near the top of the list is participating in/leading an internal investigation.  The reason it’s such a crummy deal it because it means that the company’s own employees or management have potentially engaged in some type of wrong doing.  That wrong doing can range from breaking the company’s business ethics policy to engaging in some type of criminal behavior.  Whatever the case may be, it’s going to take time that could otherwise be spent on more productive matters and it may mean the end of someone’s employment with the company – or worse, someone you know may get to wear an orange jumpsuit when it’s all over.

While unpleasant, when the circumstances arise, in-house lawyers owe a duty to their client – the company – to ensure that any internal investigation is performed properly and done in a manner that is defensible and as bullet-proof from attack as possible.  That is not an easy task.  There are many ways an internal investigation can go sideways.  A poorly conducted investigation can lead to more problems and cause more damage than the behavior under investigation in the first place.  This is why it’s so important for in-house counsel to “get it right” from the get go.  I was part of a number of such investigations in my career and hindsight gives me the ability to look back and realize there were, of course, many things  we could have done differently.  Those “lesson’s learned” form the basis for this edition of “Ten Things” where we take on the fundamentals of a proper internal investigation:

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Ten Things: The Essentials of a Successful Trans-Border Transaction

One of the most exciting events for an in-house lawyer is when their company becomes involved in a merger/acquisition, joint venture, or other strategic transaction.  It becomes even more challenging when the transaction is international in nature.  And it really becomes fun when it involves multiple companies in multiple countries.  While such transactions are rare for most companies, many in-house counsel will need to deal with a trans-border transaction at some point in their careers, either as a prime member of the deal team or as a subject matter expect who participates in a specific part of the deal.  Regardless, there are a number of things you need to be aware of in order to help facilitate a smooth landing of the deal.  A while back, I participated on a panel at Baker McKenzie’s annual “Doing Business Globally” event in Dallas, Texas.  My panel discussed winning strategies in cross-border deals.  Joining me were Michael E. Santa Maria, a partner in the Dallas office of Baker McKenzie, and Matt Haltom, the General Counsel for Sally Beauty Supply.  This edition of “Ten Things” will borrow from the presentation we gave at that event (and thank you to the good folks at Baker McKenzie for permission to do so),[1] along with some recent updates and links to resources.   Here are ten things you need to know for a successful trans-border transaction:

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Ten Things: Ten Things In-House Lawyers Should Read Every Day

There is a great episode of the old TV series The Twilight Zone where Burgess Meredith (The Penguin on TV’s Batman/”Mick” in the Rocky films) finds out he is the last man on earth, having survived a nuclear bomb explosion while reading in the vault of the bank where he works.  Not only is he the last man on earth, he ends up near the local library and realizes that the books are all intact and that he now has all the time in the world to devote to the thing he loves most – reading.  Unfortunately, as he is bending to pick up a book his glasses slip off and shatter leaving him virtually blind and, in typical Twilight Zone fashion, unable to read.  Yikes!  Well, it’s no secret that I love to read.  More so even then binge-watching on Netflix (and that’s saying something).  So, this episode of The Twilight Zone has haunted me for years and years – so much that I always keep an extra pair of glasses around “just in case.”

I used to tell my team, if you send me something, I will read it – no matter what.  This usually meant my in-box was full of emails, articles, pdf’s, and pretty much “you-name-it” in terms of things people wanted to share with me to read.  I loved it, though sometimes it did get to be a bit much and there was no way I could get through the pile in one day.   I have also written in this blog about the importance of in-house counsel of being well-read (especially for those seeking to move up the chain).  For example, see my posts on The Habits of Highly Effective In-House Counsel and Becoming General CounselTo put it bluntly, it you don’t enjoy reading and you are a lawyer, you probably made the wrong career move.  While reading is great, the sheer volume of choices of “what to read” can be overwhelming, both in terms of work life and personal life.  There is just “too much” information out there to read everything you want to read.  So, it’s important to cut things down, especially when it comes to reading things for the job.  As General Counsel, I once shared with my team the things that I read every day, things that I felt made me a better in-house lawyer and a better employee of the company.  In this edition of “Ten Things” I want to share that list and what I think are ten things all in-house counsel should read every day:

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Ten Things: Working from Home – Can it Really Work for In-House Counsel?

More and more employers are affording their employees the ability to work from home or “remotely” as it is sometimes called.  Studies show pretty convincingly that not only does the flexibility to work from home increase employee productivity and morale, it also heightens the company’s ability to attract and retain key talent.  It can also save the company money in terms of reduced office space needs and other costs such as parking, utilities, etc.   While working from home is growing, it is not growing as quickly at in-house legal departments.  A lot of that has to do with one primary concern: “If I cannot see them, how do I know they are really working?”  There are other issues, such as meetings, client interaction, department interaction, and so forth but the number one reason for not making work-from-home (“WFH”) an option for in-house lawyers boils down to trust.

As a former General Counsel I will be first to raise my hand and say that I was very reluctant when we first started allowing our in-house lawyers to work from home up to two days a week.  It just felt “off” to me but I made a decision to put my reservations aside and focus on coming up with a plan that would either work out to the benefit of both the company and the employee, or would prove that WFH wasn’t really for us.  I can report that it absolutely worked out fine for us both in terms of enhanced productivity and in terms of having a materially different “benefit” that made working in our legal department even more attractive, especially with respect to keeping existing talent and attracting new talent.  That’s not to say that it was without bumps, we had them.  And for some folks we needed to alter or revoke the privilege as it just didn’t work out in those cases.  This edition of Ten Things tackles the question of whether work from home can work for your legal department and the things you need to do to ensure that any WFH policy works for everyone.  While I am focusing on WFH, these same rules apply generally for managers and employees working a remote offices, i.e., offices away from headquarters.

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Ten Things: Succession Planning for In-House Legal Departments

I want to discuss a topic of growing importance to in-house legal departments around the globe: succession planning.  It’s no secret that the population is getting older and the “Baby Boom” generation is starting to retire.  While a number of companies are working hard to put formal succession plans into place, there are many that are behind the curve.  Moreover, most company plans tend to focus on succession of the CEO or CFO.  Other key C-Suite positions are not receiving the same level of attention, or any attention at all.  In particular, the succession of the General Counsel is often relegated to “also-ran” status.  And within the legal department itself, there is usually little to no formal planning going on around succession management for senior or other key roles.  This lack of planning can lead to big problems down the road.

I have been working with Thomson Reuters on a free three-part webinar series that focuses on succession planning for in-house legal departments.  We are hosting the second webinar on Wednesday January 25, 2017 at noon Central time. You can register for free by clicking here.  You can watch the recorded Part I and read the three detailed articles I wrote by clicking here.

This failure to plan arises from two things: 1) succession planning is a low priority for the legal department given everything else going on; and 2) it’s hard to get started and it can seem overwhelming – meaning an early onset of “planning paralysis.”  Neither of these is a valid reason to fail to properly plan for succession within the Department.   The good news is that it’s never too late to get started and you can participate in the process regardless of your position in the Department.  Succession planning can be broken down into three parts: 1) evaluation of succession needs; 2) development of succession talent; and 3) putting a succession plan into place.  There a lot to cover, so grab a cup of coffee and get comfortable as this edition of “Ten Things” will take you through the steps needed to create a succession management plan:

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Ten Things: Legal Blogs You Should Check Out (2016 edition)

As you have probably noticed, there are more blogs than there are lawyers… okay, that’s a bit of an exaggeration but I think you get the point.  There are, however, a lot of legal blogs out there.  Many are just marketing pitches for law firms and are not very good or helpful.  But, a healthy number transcend the boring, lazy, overly-dense, and “lawyer-speak” of the many.  These blogs are particularly useful to in-house lawyers, especially as a starting place for legal research (and this may not be the first place that comes to mind when you are thinking about doing some research).  Still, finding the “good ones” can be a challenge.

A year ago I posted my list of the Ten Best Legal Blogs of 2015, setting out a number of blogs that I read regularly and highly recommend.  This year, I thought I would do something little bit different.  While you should certainly check out all of the blogs on last year’s list (e.g., Presnell on Privileges is still awesome), I did not want to create a 2016 list that repeated a many of blogs from last year’s offering.  Instead, I thought I’d point out some additional blogs that may also worth your time – depending on what you’re interested in.

This (very short) edition of “Ten Things” will list some more of my favorite legal blogs and the topics they cover.  These are all worth you clicking on and checking out over the holiday break or the next several weeks.  If you find one or two you like, be sure to subscribe to them so you get the newest editions when they come out.  Here are my blog suggestions in no particular order of importance:

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Ten Things: Preparing Outside Counsel Guidelines – The Keys

Managing your relationship with outside counsel can be challenging.  The good ones work hard to make it easy but, even so, there are times when you and your outside lawyers are not on the same page.  One of the areas where this is most common is billing.  In short, what should you expect to pay for and what should you not expect to see on a bill?  Moreover, there is the issue of logistics, i.e., when do you need to get the bills, what information needs to be included, etc.  There are many facets of your relationship with outside counsel that you need to think about and constantly manage.  One way to do this is through an engagement letter.  While this is a good device to manage some aspects of a particular project, the better path is to create and maintain a set of “Outside Counsel Guidelines” — a standing set of rules for how you and your outside counsel will interact on key issues, especially on billing.

Most in-house legal departments have such guidelines ranging from a few pages to over 50 pages or more.  Some newer or smaller legal departments may not have any guidelines at all.  Regardless of where you find yourself on the continuum of “got them” to “don’t got them,” as we near the end of the year this is the perfect time to either plan on creating guidelines in 2017 or updating the guidelines you already have on the shelf.  If you’re in the latter position, it might be time to think about a wholesale review of your guidelines and whether or not you have a set that matches up with how the department operates today or whether you are living with something created 10 to 15 years ago that doesn’t work well in today’s environment.  This edition of “Ten Things” will set out some of the basic things you need to consider when preparing or updating your Outside Counsel Guidelines:

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Ten Things: An Index to All the Posts – November 2014 to November 2016

I published the first “Ten Things You Need to Know as In-House Counsel” blog about two years ago this month.  It all began after my talking with a group of young in-house lawyers who asked me “What do I need to know to be General Counsel some day?”  Hmmm, I thought.  I should start writing this stuff down.  So I have and it’s been a surprising success.  Very surprising.  The blog has over 1,400 followers and keeps growing by leaps and bounds.  It was nominated for “Best Blog of 2016” by the Expert Institute and the American Bar Association will be publishing a “Best of” collection of posts in book form in early 2017.   I have been asked to speak to a number of different groups of in-house lawyers and legal departments based on “something they read in the blog.” And – what I consider the neatest part –  I have heard directly from readers all over the world via email, LinkedIn, and even on the phone.  I enjoy hearing from all of you (good or bad), especially if you find the blog helpful or, even better, if you have ideas for future posts.  Always feel free to contact me with your feedback, questions, or ideas.

I still haven’t figured out how to create a good index to all the posts on the blog site (the book will have updated posts set out by category).  So, please bear with me for at least one more “Index” post.  I will eventually figure it out (or upgrade my site).  Until then, and since there are at least 500 new followers since I last did this, it’s a good point in time for an updated index of “Ten Things” posts (all 50 of them), hyper-linked and in chronological order from past to most current:

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Ten Things: How to Plan a Legal Department Offsite

A common tool used by businesses to develop strategy, refine plans, set goals, energize the team, enhance teamwork and cooperation is the offsite, i.e., where a group in the business goes “off site” to meet as a team for one or several days in remote location.  Some offsites can be elaborate affairs involving hundreds of people at a 5-star resort with “name” guest speakers and entertainment.  Others are small – just a conference room at a local hotel with a handful of executives and some white boards.  Successful offsites of any size have one thing in common: they require a lot of planning to pull off.

While the business side of the house uses the “offsite” tool frequently, many legal departments do not.  This might be because of budget constraints, logistical issues (i.e., all the lawyers are gone?!), or just lack of a good reason to host one.  None of these are a good excuse for not hosting a legal department offsite on a regular basis, i.e., every year or every other year.  A legal department offsite is a valuable tool and if utilized correctly can bring big benefits to the department and the company.  I have planned several legal department offsites and, for the most part, they were very successful – though there were things I would “do differently” at the next opportunity.  The edition of “Ten Things” discusses how to plan and host a successful legal department offsite:

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Ten Things: The Search for the Perfect Arbitration Clause (or at Least a Really Damn Good One)

If you have ever been involved in civil litigation in the USA as an in-house lawyer you know that it is expensive, intrusive, slow, and often leads to unsatisfactory results, including lack of confidentiality and, sometimes, punitive damages.  If that’s not enough, the U.S. system also provides for class-action litigation which can turn “small” claims into “big” claims.  While some of this is unique to the U.S. system, these same issues are creeping into the litigation process in other parts of the world, including Europe and parts of Asia.

For the past 15 years or so, many practitioners and commentators have touted arbitration as the remedy to the many ills of litigation.  Unfortunately, the arbitration process is steadily becoming just as bloated, slow, expensive, and unsatisfying as litigation, leading you to ask “why arbitrate at all?”  My experience is that the arbitration process is not really the problem.  Rather, it is the fact that those preparing arbitration clauses are not spending enough time digging into what they really want their arbitration process to look like if it ever becomes needed.  Instead, I see contracts with a one sentence “arbitration clause” stating simply that all disputes under the agreement are subject to arbitration under the rules of [insert name arbitral body here].  If this is all there is to your arbitration agreement, you will let others control your arbitration process.  Those “others” tend to be outside counsel (for both sides) who, unless directed otherwise, will fall back to their traditional litigation comfort zone.  Consequently, unless you set out a detailed arbitration process, you will end up with just another version of traditional civil litigation.

In this edition of “Ten Things,” I search for the perfect arbitration clause.  Alas, much like Moby Dick, El Dorado, Sasquatch, and honesty in politicians, the search comes up dry.  Frankly, there is no such thing as a “perfect” arbitration clause because every situation is different.  But, with a little work you can come up with a “really damn good” arbitration clause, one that will better suit your company’s interests and goals.  It requires time and effort on your part, such as taking a long look at the clauses you are using now and asking yourself some tough questions about what you really want to get out of an arbitration process.[1]  If you’re ready to roll up your sleeves, here are some things you need to consider and think through when drafting an arbitration provision:

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