This will be my last post of 2017. The year has certainly flown by! Thank you all once again for continuing to read the blog (going on four years now!), for sharing it with your friends and colleagues, and for your great notes and suggestions. I wanted to end the year with a discussion about an issue I think is of critical importance to any in-house Legal Department: getting rid of the perception of Legal as the place where deals go to die. Almost all in-house lawyers have heard this joke and almost all agree that it is generally an unfair label. That said, I have been doing this a long time and I have had many conversations with folks on the business side of the house and sometimes the concerns that they raise about Legal “blocking” deals are valid. Let’s face it, there are times when the Legal Department stumbles on this front. Sometimes we even fall on our faces. I have stumbled, fallen, and crashed to earth too many times to count. And, no matter how hard I try, I will stumble again. But, I always try to learn something from each lesson. Most importantly, I try to remind myself that I and the Legal Department are here to serve the business. As in-house lawyers, we have two goals: value creation (“Yes”) and limiting value destruction (“No”). The hard part is balancing these two goals, especially when it comes to things the business really wants to do or contracts they want to sign. A good friend of mine once told me that the hardest negotiation you will have as an in-house lawyer is usually internal. Over time, however, I have developed some guidelines that help me get to “Yes” far more than I get to “No.” This edition of “Ten Things” will share my list of things you can do to make Legal the Department of Yes.
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.
As I mentioned in my last post (January 8), over the next few weeks I will dive deeper into some of the sample department “goals” I set out in that article. Today I will focus on this goal: “Build and retain extraordinary team with exceptional people.” I always put my “people goal” first because I truly believe that nothing gets done in legal unless you have top talent that is motivated and happy in their jobs. How do you keep and reward people so they stick around? The obvious answer is pay them well, have a good performance bonus program in place, and let them share in equity plans. The problem is, for many reasons, it usually is not fully in your control to make any of these three things happen. For purposes of this article, I am going to assume that you are doing what you can for your team around salary, bonuses and equity and, instead, focus on some low cost ways you can reward/recognize employees.
A common complaint you will hear as in-house counsel is “Why does it take so long for you guys to review my contract?” (Second only to “Why are our contracts so long?”) The answer, as you know, is complicated. Legal is a limited resource, typically a small team that reviews hundreds and possibly thousands of contracts in any given year. While a lot of contracts are fairly routine, many involve complicated provisions or transactions with millions of dollars on the line. Sometimes you have to create a contract from scratch, meaning you do not have a form or something to easily model from. Frequently, things like litigation or large M&A deals take up substantial amounts of lawyer time — time that cannot be spent on contracts. Finally, legal will generally prioritize contracts based on the strategic objectives of the business. Deals that better support the strategy/objectives get more attention more quickly.
As we head into the holiday season, this is the perfect time to give your anti-bribery program a health check. For those in the U.S., we tend to focus on the Foreign Corrupt Practices Act when thinking about anti-bribery laws. However, if you work for a company that operates globally, you know that many countries have anti-bribery laws and you need to be aware of those requirements as well. Enforcement of the FCPA/anti-bribery laws is not going away. In fact, in my opinion, it will get even more intense over the next few years. Given the level of fines and the reputational risk at stake, it’s important to ensure you are taking the right steps to give your employees the tools they need to stay on the right side of the line. At my prior company, we typically used the advent of the holiday season as the time to take a number of steps relating to FCPA/anti-bribery compliance. Below are ten things you can do now to help ensure compliance with anti-bribery laws. In key spots, I have included links to articles or websites with additional information you might find helpful.
Whether you are new to the in-house department or a long-term veteran, the General Counsel or just a basic contract lawyer, there are a number of things that can help make you more successful in your career. I have distilled a lot of hard learned lessons into ten key tips. These are not exhaustive and there are always more, but these are the ten things I consistently taught to my teams over the years.