Ten Things: A 2016 “To Do” List for In-House Counsel

[Note – this edition of “Ten Things” is a reprint of my first article for Thomson Reuter’s “Corporate Counsel Connect” e-magazine.  Starting in January 2016, I agreed to write a monthly column called “The Insider” directed at in-house counsel.  Reprinted with permission of Thomson Reuters]

I was in-house counsel for over 20 years.  One of the hardest tasks I recall was the yearly process of “setting of goals” for the Legal Department, both as a member of the department and as general counsel for two companies.   To me, it feels like there is something inherently difficult about setting Legal Department goals when probably 75% of what the team will work on in the upcoming year is still unknown and won’t really be knowable until it appears on their plate.

Despite these limitations, it is possible to create a useful and measureable set of goals for Legal.  This edition of “Ten Things” sets out a “To Do” list that you can adopt in full or in part as part of your 2016 goal planning (for yourself, for your team, or for the department).  These are all tasks that need to be done, pretty much regardless of the size of your company or the number of attorneys in your Legal Department.  Moreover, they are designed with the CEO and other C-Suite executives in mind so that they can see how the Legal Department is proactively scoping risk to the company and its various lines of business and (more importantly) taking steps to deal with those risks. 

2016 Legal Department “To Do” List

  • Work with Human Resources to review and update the following company policies/employee agreements:
    • Employee Handbook (ensure compliance with 2015 NLRB guidance memo)
    • Non-Solicitation/Non-Compete agreements (ensure language meets standards for key states or countries where company operates)
    • Employee confidentiality agreement
    • Intellectual Property ownership agreements
    • Exempt/Non-Exempt and Employee/Contractor classification health check
    • Email/Document drafting policy
  • Create processes and a set of operations metrics to effectively manage Legal Department budget and spend:
    • Implement or plan to implement an e-billing system
    • Create monthly report based on key operations metrics about legal spend
      • Average hourly rate (year over year)
      • Average hourly rate by firm vs. “market” rate for similar work
      • Partner/Associate ratio (by project)
      • Spend vs. Budget/Forecasted spend (by project and overall)
      • Get outside counsel to help/buy-in with process
    • Update “Outside Counsel Guidelines” and send to all current outside counsel and at outset of every new matter
    • Meet with outside counsel before the start of any material legal project to set cost and team expectations of both parties and, at completion of the project, do an honest post-project analysis of what worked and what didn’t work (for both the company and the law firm) and determine how can we improve project management going forward
  • Compliance health check. Review and update key compliance-related policies and update/implement means to test compliance:
    • Employee training process (how we teach employees about compliance)
    • Anti-bribery policy (FCPA, etc.)
    • Anti-trust compliance policy
    • Record Retention policy/including “legal hold” process
    • Revise/update company business ethics policy
    • Ensure all employees know how to report an ethics/compliance concern (emails, posters, town-hall meetings, etc.) and put into place/test hotline, compliance office email, and other mechanisms in place to allow employees to communicate concerns
    • Work with Internal Audit to test key parts of compliance program
    • Educate the legal department and the company management and employees about the proper use of the Attorney-Client Privilege
  • Review company website:
  • Review processes and procedures around litigation or otherwise highly disruptive events:
    • Ensure that company contracts have well vetted dispute resolution clauses/procedures, including choice of law, arbitration, choice of venue, mediation, limitations of liability, indemnity, etc.
    • Review procedures for the intake of new litigation
    • Review procedures to keep the CEO and Board of Directors up to speed on material litigation
    • Ensure appropriate crisis preparation procedures and plans are in place
    • Ensure appropriate business interruption plans are in place
    • If you work for a publicly traded company, working with the CFO and Investor Relations to develop a plan to deal with activist investors
  • Create and distribute a client satisfaction survey to company management and employees (i.e., gather feedback about how your internal clients feel about the Legal Department) and engage more closely with business:
    • Distribute survey mid-year so as to get results in time for year-end review and 2017 planning
    • Post results (or selected results) on Legal Department intranet web page so they are available for company employees to see
    • Create an action plan based on the results to improve the delivery of legal services
    • Place members of the Legal Department at weekly/monthly staff meetings of the businesses or business groups so as to help ensure that Legal is knowledgeable about issues that concern the business and are able to provide guidance in real time
    • On quarterly basis ask CEO and other C-Suite members to tell you what “keeps them up at night” and determine if the Legal Department can assist in mitigating issue or concern
  • Identify key government-related actions (domestic or international) that present either risk or strategic advantage to the company and create a government affairs plan around same:
    • Identify a proposed law or regulation (domestic or international) that is helpful to your company and design a government affairs campaign to support it
    • Identify a proposed law or regulation (domestic or international) that presents risk to your company and design a government affairs campaign to oppose it
    • Identify key government/agency officials who can significantly impact your business and set “get to know you” meetings with them over the course of the year
  • Review insurance policies to ensure the insurance the company has is what it wants and needs:
    • Check specific policies:
      • D&O
      • Cyber-risk
      • E&O
      • CGL
      • Other policies important to your company’s specific lines of business
    • For each policy, ensure the Legal Department and appropriate people in the business and staff groups understand the process of determining whether insurance might apply to a claim along with when and how to provide notice of a claim to the insurer
  • Take/Update an inventory of the company’s intellectual property (patents, trademarks, copyrights), trade secrets, and other confidential information and ensure proper policies and procedures are in place to protect the information:
    • Employee training
    • Agreements and procedures
    • Exit interview process
    • On Boarding process
    • Securing the office (e.g., “clean desks’)/proper sign-in and escort procedures for guests
  • Create a 5-year technology-plan for the Legal Department to increase efficiency and lowers costs. The goal is to implement what you can in 2016 but set out long term plan to account for/budget for needed or improved technology over the course of the next five years, including:
    • E-billing system
    • Matter management system
    • Document management system
    • Legal research tools
    • E-discovery software (with state to the art legal hold management tools
  • Improve quality of life within the Legal Department itself:
    • Satisfaction survey of Legal Department members and 360 reviews of the department leaders
    • Improve the content and quality of staff or department meetings
    • Plan for an off-site for the entire department (in 2016 or for 2017 if need be)
    • Find simple but effective ways to reward and retain your team members
    • Help each lawyer create a development plan that provides opportunities for growth and responsibility along helping to ensure they can become successful in-house lawyers at your company
    • Ask each team member to prepare a detailed check-list about one key facet of their job to be compiled into a booklet that will provide the tools and instructions needed if that employee leaves the company or is otherwise unable to do that particular task when needed
  • Create a “calendar of action” setting out the specific day or week during the year so that repeatable tasks set out in your 2016 “To Do” list become institutionalized and part of the normal yearly-flow of activity of the Legal Department.

*****

My goal here was to give you a solid playbook for recognizing and planning important high level tasks for 2016.  As always, there are dozens and dozens of other tasks and sub-tasks (and detailed descriptions) that could be added to or layered on the above list.  The important thing for you as in-house counsel is to use the list above (all, part, or none), your own list, and other input (e.g., the business leaders and/or C-Suite) to create a framework of key things that “need to get done” this year (and ideally every year).  Equally important is assigning the work and tracking progress.  Many legal departments now use “key performance indicators” to track how they are doing.  In addition to tracking progress, keeping the goals in front of your team at meetings or with regular updates, and using examples of how different work or achievements of the Legal Department fit into the goals is helpful to ensuring that these important tasks do not become just another piece of paper gathering dust in the drawer.

Sterling Miller

February 1, 2016

Follow me on Twitter @10ThingsLegal and LinkedIn where I post short articles of interest to in-house counsel daily.  

(If you find this blog useful, please click “follow” in the top right so you get all new posts automatically, pass it along to colleagues or friends, and “Tweet” it. “Ten Things” is not legal advice or legal opinion.  It is intended to provide practical tips and references to the busy in-house practitioner and other readers. You can find this blog and all past posts at www.TenThings.net.  If you have questions or comments, please contact me at either sterling.miller@sbcglobal.net or smiller@hilgersgraben.com).

My first book, “The Evolution of Professional Football,” is available for sale on Amazon and at www.SterlingMillerBooks.com.

 

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