Over the past six months you have probably been bombarded with data privacy articles, questions, and concerns regarding the European Union (“EU”). Given the sheer volume of material on the topic, it is difficult to figure out what you really need to know about the current state of data privacy and data protection in Europe. We saw the European Court of Justice strike-down the US-EU “Safe Harbor” agreement last October (which will likely be replaced with the new “Privacy Shield” agreement). We know that the EU recently approved a new EU-wide data privacy law. The hard part, however, is figuring out what it all means. This edition of “Ten Things” will try to sum things up in a useful way so when those questions and concerns come across your desk, you have some ready answers and a road map for the next steps you and your company need to take to ensure compliance with all of the changes in EU data privacy law:
I want to continue my effort to post a few articles about basic corporate law issues. Last time I wrote about about corporate governance. This week, I’d like to discuss dealing with the Board of Directors (the “Board”). The members of the Board of Directors are elected by the shareholders of a corporation. Their job is to manage and supervise the company’s officers and management and to look out for the interests of the shareholders. Directors owe the shareholders/company a “duty of care” and a “duty of loyalty” while serving on the Board.
The Legal Department interacts with the Board in several ways. Typically, the Corporate Secretary (the person who manages the operational aspects of the Board along with other duties related to maintaining the corporation) sits in Legal. Often the General Counsel is also the Corporate Secretary. The Corporate Secretary works closely with the Chairman of the Board and the Governance & Nominating Committee. The Chief Compliance Officer may also sit in Legal and works closely with the Audit Committee. Similarly, any significant litigation, contract, acquisition, or other material legal event will come to the attention of the Board and may require its input or approval in some instances. The Board will take up these legal matters at regularly scheduled Board or committee meetings, or at a special meeting if the circumstances warrant. When these ad hoc legal events come to the attention of the Board, various members of the Legal Department may be invited to the meeting in order to present the issue to the Board or be a subject matter expert for any questions the members may have. Any in-house lawyer can be intimidated the first time they meet the company’s Board of Directors or prepare materials for them (even if it’s just responding to an email). This edition of “Ten Things” will give you some pointers on how to deal with the Board:
I have not spent much time in this blog on the “corporate” side of the in-house world. Over the next few posts, I will discuss some key issues regarding basic corporate law. If this is an area you focus on already, you have it down, but for many in-house lawyers whose practice focuses on litigation, IP, employment, or other areas it’s not something you see every day. If you hope to sit in the general counsel chair one day, it’s important to have a solid understanding of several basic areas of corporate law.
Underlying most everything in corporate law is what I call “basic corporate governance.” This includes the formation of the corporation, operation of the Board of Directors (the “Board”), delegation of authority, annual compliance issues, and so on. This edition of Ten Things will discuss basic issues regarding corporate governance. While the below is fairly USA-centric — as the details of corporate law vary widely by jurisdiction — I will include some reference material for corporate governance issues outside the USA toward the end:
There are few things as wasteful and painful as litigation. And that’s from someone whose career started as a litigator and, after a long tenure in-house, now works for a litigation boutique! While sometimes it is simply unavoidable and necessary, any in-house lawyer can tell you that litigation is expensive, time-consuming, distracting, frustrating, risky, and very difficult to predict outcomes. As a result, ending litigation is usually a great feeling (sometimes celebrated with bottles of expensive champagne). Still, litigation rarely ends with a jury verdict or bench decision. It usually ends with a settlement, i.e., an agreement by the parties to the litigation to end the matter based on some agreed upon terms. Sounds simple, right? It’s not.
A settlement agreement is an extremely important document and should receive the same level of attention to detail as any other complex contract your company might enter into. There are many ways a settlement can go “wrong” and that is why the agreement is not something to leave solely to the outside lawyers once the “deal has been made.” In-house counsel need to be intimately involved with the documentation and execution of the deal. Simply put, careers can end because of “bad” settlement agreements. You do not want to be on the receiving end of a settlement agreement that turns out NOT to be the deal you (and the CEO or Board) thought you had to end the litigation. Since many in-house lawyers rarely deal with litigation, let alone settlement agreements, this addition of Ten Things will discuss some of the key things you need to keep in mind when settling litigation so you can do your best to make sure it’s really over:
My friends who are outside lawyers are always interested in what is was like to be in-house counsel. Besides being envious of the fact that I did not have to keep track of my time, they would (and still do) ask me “what do in-house lawyers want from outside counsel?” I also keep in touch with a lot of the in-house lawyers I worked with or met over the course of 20+ years on the “inside.” They often share with me the things they like and don’t like about outside counsel. I recently had conversations with both “sides” and it got me thinking about how in-house lawyers are not good at telling their outside counsel what they want, while outside counsel are not good at asking in-house lawyers what they need. So, I decided to try and crack this nut. This edition of “Ten Things” focuses on what in-house lawyers really want from outside counsel. It is written based on my in-house experience and from the point of view of a General Counsel (but I am pretty confident these points resonate with all in-house lawyers regardless of position, here in the USA and globally):
As general counsel I saw a lot of writing. Emails, memos, policies, correspondence, etc. Most of what I saw produced by my team was well written. Some of it was not. Wait, hold on. I take that back. It was well written for a lawyer but it was not well written for what the business needed. Here’s an example: one day I received a very long email from a lawyer on my team discussing some litigation risks in a dispute brewing on the horizon. It was an email we planned to share with our executive team once it was finished. It began with a very detailed discussion of the facts and the law, including case citations and citations to secondary legal treatises. There were plenty of Latin phrases (I had to look some of them up in a Black’s Law Dictionary), lots of “Wheretofore’s” and other legal jargon. There were even a few typos. And, at the very end, was a long summary of everything I had just read along with a squishy conclusion saying essentially, on one hand this but on the other hand that, with no clear recommendation on what to do next, no conclusion about the most likely outcome given the different risks at play, and no mention of next steps. There was so much information to wade through, it was like trying to find the score of the game in a Grantland Rice column. I knew that if we sent this out to the senior management, heads would explode long before they got to the end of the email.
I thought I knew what the problem was immediately. The lawyer who had written it had recently moved in-house from a big law firm. Sure enough, when I walked down to have a chat with them, I saw a treatise on legal writing on their desk, right next to a copy of “The Bluebook.” Ah yes, problem confirmed. I asked him/her to pop down to my conference room to talk about the email. We sat down and I said, “The first thing you need to do is forget everything they taught you about writing in law school and at the firm.” Secondly, “And here are some things you need to know to write successfully as an in-house lawyer.” This edition of Ten Things shares those points with you:
[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: