[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.
January is a great time to think about reducing clutter. Many of us start the New Year with a personal plan to get organized, throw out stuff that no longer matters, and to accumulate less junk going forward. It’s a nice plan – and it usually falls apart by mid-February. Still, the idea of getting organized and reducing “clutter” is also a goal of many companies. One way to do this is by implementing or updating a record retention program. For companies without a program already in place, this means starting from scratch. For companies with a program, it means a serious “soup to nuts” review and how (not if) the program needs to be updated.
The benefits of a well thought out record retention program cut across every part of the business, including all staff groups, and especially within the Legal Department which usually takes the lead in record retention issues. Whether you are based in the U.S. or a different country, whether you are a generalist, or specialize in litigation, M&A, commercial agreements, compliance, intellectual property, corporate secretary, or employment law, a good record retention program can make your job much easier and reduce risk to the company. This edition of “Ten Things” discusses the basics of what is needed to put a record retention program into place or update an existing one:
First, I want to wish everyone all the best for the holiday season and for a safe and prosperous 2016. Second, I thought I would keep this edition of “Ten Things” on the lighter side and, hopefully, on the less wordy side too — especially after last week’s missive on becoming general counsel. Back when I was general counsel I once told my team that if you send me something I will read it, pretty much no matter what. I am not sure if that is a positive or a negative but it certainly kept me informed about what was going on in Legal and around the company. I’m not saying that everyone needs to have the same approach I have to reading things. In fact, sometimes it’s nice if someone can point out things worth reading (vs. having to dig them out yourself). That’s my plan for this post.
Over the course of the last several years, legal blogs have exploded. There are probably several blogs for just about any topic of law you are interested in. Blogs can be very helpful tools for in-house counsel (or any lawyer for that matter), in particular for finding answers to legal questions quickly or for staying on top of new issues. Over time, I have identified a number of blogs that I like to read regularly and that I think are particularly well written and useful to in-house counsel. While I certainly hope that my blog fits this bill for you, I know there are many very talented legal writers out there, covering really interesting topics. This edition of “Ten Things” will list some of my favorite legal blogs (and the topics they cover). I highly encourage you to check these out over the next several weeks and if any interest you, follow them regularly. Or just keep the list handy in case you need it later down the road. So, and not in any particular order, here are my top ten legal blogs for in-house counsel (2015 edition):
The first substantive post I wrote for this blog in November 2014 was titled “How to be a Successful In-House Lawyer.” Over the past 12 months I have heard from a number of you with a slightly different question: how do you become general counsel? In particular, what skills should someone develop if they have their eyes on the big chair? As we come to the end of 2015, I thought this would be an excellent topic to write about. If you already are general counsel, congratulations! Hopefully the points in this post ring true to you. If you aspire to become general counsel (or are looking for an upgrade), now is the perfect time to start thinking about your game plan for 2016 and beyond both in terms of developing needed skills and ensuring you are on the “radar” of the right people. If you are outside counsel, you can use these points to help your inside client attain their goals.
I was fortunate enough to have been the general counsel of two companies. While each company required different skills for both the legal department generally and for the general counsel seat specifically, there was also a lot of overlap. I suspect the overlapping parts I experienced are the same for most companies. I also believe that the core skills needed for the position – including operational and strategic excellence – are the same here in the U.S. and across the globe. This edition of “Ten Things” will set out some of the things you will need to think about, know, or master on your path to becoming general counsel:
As most of you know by now, I retired from Sabre Corporation in November 2014 as General Counsel, Corporate Secretary, and Chief Compliance Officer. Shortly after that, I began the “Ten Things You Need to Know as In-House Counsel” blog, even though I had never blogged before or thought anyone would be that interested in what I had say. My goal at the time was to write down a lot of the hard (and easy) lessons I learned over 20+ years as an in-house lawyer and share them with you. Today, that’s still the goal and, as of November 28, I am celebrating one year of posts – 28 in all! My plan is to keep going until someone tells me to stop (most likely that little voice in the back of your head that says “enough is enough”). We’re not there yet, so lots more planned for Year Two!
As always, thank you for reading the blog and for sending me your comments and ideas for future posts. I do read them all and I have used a number of them already (and will continue to, so keep sending them). Thanks to all of you who have taken the time to click on “follow”, regularly read the email updates I send out, and forward the blog to your friends and colleagues. I also want to thank the good folks at Westlaw, LexisNexis, and Texas Lawbook for republishing a number of the posts in their publications for in-house counsel.
Unfortunately, the world we live in can go from good to shockingly awful in a matters of hours. There is no starker reminder of this than the horrific events in Paris on November 13, followed by the terrorist assault on a hotel in Mali just days later. Besides terrorism, disasters arising from natural events (hurricane, pandemic, earthquake, tsunami) and man-made events (plane crash, fire, cyber-attack, workplace violence) lurk in the shadows as well. This is true for both individuals and businesses: tragedy does not discriminate.
One of the most important tasks you have as in-house counsel is to help ensure that your company is prepared for when disaster — man-made or natural — strikes. Protection of your fellow employees and corporate assets/shareholder value should always be top of mind. In some companies, planning for disaster falls within the Risk Management Department, in others it’s a mixture of different departments, including the Legal Department. Some companies simply have not gotten around to planning for disaster. Regardless of where your company sits on this continuum, Legal has a role to play in assisting the company plan for dealing with a crisis. If not already the case, you should ensure Legal has a seat at the table for such planning. This edition of Ten Things discusses things you can do as in-house counsel to help the business plan for when bad things happen:
As in-house counsel one of the questions you frequently ask yourself is “how am I ever going to get all of this stuff done?” Don’t worry, you are not the only one asking that question. In the in-house world there is never enough time, money, resource or people to get to everything that needs to be done. If you’re someone who cannot live with this type of situation, then you will not be happy as an in-house attorney. On the other hand, if you do not faint at the sight of an endless “to-do” list and a decreasing legal budget, you’ve overcome the biggest hurdle and you’re probably interested in trying to figure out ways to get more done within the hours you currently work and still leave some time for your family and yourself. I have written about using technology to increase productivity but there are other things you can do.
First, let me say that I struggled with this problem almost every day I was in-house – especially when it came to balancing out time spent on work vs. time spent with my family. I put a lot of thought and effort into trying different things to help me be more productive at the office so I could get myself out the door at a reasonable time every night. I didn’t always get it right, but over the years I found a number of things that did help. This edition of Ten Things will share some of those ideas on how to be more productive every day.
Earlier this year I discussed data privacy essentials for in-house counsel (click here to read). The post discussed a number of basic data privacy issues, including the 2000 U.S.-EU Safe Harbor Agreement. The agreement allows U.S. companies that register and agree to its terms to legally transfer personal data from the EU into the U.S. The agreement was necessary because the European Commission (the “Commission”) determined that the U.S. did not have “adequate” data protection laws and, therefore, without such an agreement the ability to transfer personal data out of the EU and into the U.S. was limited due to provisions of Article 25(6) of the 1995 Data Protection Directive. The Safe Harbor Agreement remedied the problem by creating a mechanism under which U.S. companies could agree to apply core EU data protection principles to personal data and subject themselves to regulatory oversight by the Federal Trade Commission or the Department of Transportation.
Last week (October 6, 2015) the European Court of Justice invalidated the Safe Harbor Agreement. The court found that the agreement did not provide “essentially equivalent” data protection to EU citizens (primarily because of the then unfettered access to personal data by U.S. intelligence agencies under the PRISM program). The court also held that local Data Protection Authorities (DPAs) are empowered to independently assess whether a non-EU country provides adequate protection regardless of whether the Commission has already made such a determination that it does.
The result is a big mess regarding how companies that relied on the Safe Harbor Agreement can legally transfer personal data out of the EU and into the U.S. and how things will work in the future if DPAs can override a Commission decision on the adequacy of data protection in non-EU countries. This edition of Ten Things discusses some practical things U.S. companies should do next in light of last week’s development.
You’re having lunch with someone from the business and talking about a project that’s not going well and could lead to unhappiness on both sides – your company and the customer. Your buddy is spilling her guts about several of the problems they are encountering on the project and her concern that they may not be performing up to the contract terms. Your first thoughts are that she’s being overly harsh on herself and the team as some of the things she is mentioning may not be a big deal and there is time to correct them. Then she tells you not to worry about it too much because she and her team have been marking all of their emails and other documents discussing the problems as “Attorney-Client Privilege” so that the team can write down whatever they want and it will never be seen by the customer. Oh crud, (or words to that effect) you think. This is a real problem.
One of the in-house lawyer’s most valuable tools is the attorney-client privilege and the ability of the client to ask pointed and raw questions for the purpose of obtaining legal advice. If not utilized properly, however, this tool can turn into a ballistic missile aimed right at your company. The applicability and proper use of the attorney-client privilege is a very misunderstood area, especially in the in-house world. There are a number of things both counsel and the client need to know in order to avoid common mistakes and provide the best possible case for claiming the privilege. Since some courts are looking at in-house counsel assertions of privilege with a wary eye, it is now more important than ever to get this right. This edition of Ten Things will discuss what is necessary to claim and preserve the attorney-client privilege.
Looking back, I realize I spent a good amount of time working on insurance-related issues as in-house counsel. Sometimes it was helping the insurance team figure out what types of coverage were needed, other times it was about filing a claim or trying to answer questions from senior management about how the policies worked, and – unfortunately – several times it involved litigation with the insurance carrier over its failure to pay claims. I was thinking about insurance issues because my good friend and noted insurance law guru, Amy Stewart, recently published a book entitled “Texas Insurance Coverage Litigation – The Litigator’s Practice Guide (2015).” Reading through the pages I recalled various issues I came across over the last 20-something years. Even though it’s aimed at Texas law, the book has very useful general discussions about insurance law issues.
As in-house counsel you (or someone on your team) should have a solid understanding of basic insurance law issues. While hopefully your company will never need to make a claim against its insurance, if it does, Legal’s ability to spot issues and help guide the process can mean the difference between a quick payout or a long court battle with the insurer. You do not need to become an insurance law expert, but you should know the basics and know when you need to get help from outside counsel. This edition of “Ten Things” will discuss some things you should be familiar with regarding insurance purchased by your company.