in-house counsel

Ten Things: Ransomware – What In-House Counsel Need to Know

Back in January, I gave my list of essential issues for in-house counsel to pay attention to in 2021.  One of the items I listed was “phishing.”  Unfortunately, I was right to highlight it.  Phishing has been a hot topic in 2021.  More alarming, however, is that phishing’s good buddy ransomware has become an even bigger issue for in-house lawyers.  In the first half of 2021, ransomware attacks are up over 148% (with more attacks than the last ten years combined!).  The average ransom is now $200,000-$300,000 (with demands now exceeding $10,000,000.00) and businesses are down an average of 21 days whether they pay the ransom or not!  I don’t know about you, but being down for three weeks and getting stuck with a $300,000 bill to access my data would be a real problem for most companies.  To make matters worse, bad actors are getting more and more sophisticated, looking for new ways to gain access to corporate information systems.  The good news is that there are things you can do now as in-house counsel to help your company prepare for and limit, or even prevent, a ransomware attack.  Proactive in-house counsel is valuable in-house counsel, so taking steps now is an excellent way to demonstrate the value of the legal department.  This edition of “Ten Things” walks you through some of the steps you can take to mitigate the damage of a ransomware attack:

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Ten Things: The Productive Power of “Little Things”

English philosopher Thomas Hobbes famously wrote in his poem Leviathan that, “Life is solitary, poor, nasty, brutish, and short.” That is a startling clear sentiment, both powerful and scary… Um, sorry. This has absolutely nothing to do with today’s “Ten Things” post. Just got off on a tangent here.  Let me start over…

I have always been able to get a lot of things done in a day.  I never really thought much about it. I just assumed everyone was the same.  Over time I realized that was not the case.  Everyone has a different ability or capacity to get things done in a day or a week or a month.  I just happened to be really good at it.  I was never really sure why.  I certainly wasn’t the smartest person in the room – though I know now that being smart has little to do with it.  It isn’t because my concentration abilities surpass those of mere mortals.  I get as distracted by things as the next person.  Nope, I could never put my finger on it.  Then a few years back I came upon an interview with time-management author Laura Vanderkam.  She led off with this statement, “Small things done consistently add up to big things.” It was literally as though someone had turned on the lights in the room.  I had not been bitten by a radioactive spider. I had no secret superpower.  I had simply stumbled upon the productive power of “little things!”  This edition of “Ten Things” discusses what this is and how in-house counsel can harness it to get things done:

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Ten Things: A Primer on the Work Product Privilege

[I realized too late after my last post that I have surpassed 100 blogs.  Wow.  No celebration but, to be honest, I never imagined I’d write that many when I started “Ten Things” back in November 2014.  But, here we are, all dressed up and lots of places still to go.  So, thanks for reading and keep those emails and suggestions coming!]  

As an in-house lawyer, I was always interested in any legitimate way I could keep information generated by the company or the legal department confidential.  Or, more importantly, out of the hands of our adversaries.  All of which meant I needed to stay on top of many things, from trade secret protection to teaching the business to write smart.  But, as a lawyer, I had a particular interest in how privilege might apply to the materials I – or my team – was working on.  The most obvious was the attorney-client privilege, something I have written about in a past blog and which ranks first on my list in terms of protecting information.  Somewhat less obvious, and not as sexy as its cool, buff older brother, is the work product privilege.   While more limited in the circumstances in which it applies, it is pretty powerful and can save the day when something happens to make the attorney-client privilege fall away.  Kind of how Batman can curb-stomp some villains when Superman’s having an off day.  I think it’s time we gave the work product privilege some love and this edition of “Ten Things” discusses what in-house lawyers need to know about our new, best buddy:[1]

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Ten Things: What to do When Your Company is the Subject of a Government Investigation

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I’ve been around a while and I know from first-hand experience that there is little more disconcerting to an in-house lawyer than being contacted by the government when it starts investigating your company.  It makes your stomach feel like The Hulk has reached down your throat to give your intestines a good squeeze.  What happens in such an investigation, in large part, depends on what’s being investigated and on how you respond. You will know the seriousness of the circumstances fairly quickly, depending on what tools the government uses for its initial contact with your company. Regardless of how it starts, there are many things common to any company’s response to a government investigation. There are several initial questions to ask when a government investigation into your company is launched.  This edition of “Ten Things” explores what to do when the government comes knocking on your door:

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Ten Things: Sexual Harassment Claims in the #MeToo Era

While in-house lawyers are always concerned about sexual harassment claims, the last year or so has provided a loud wake-up call regarding the highly negative impact of such claims on employees and on the company involved.  While women can certainly engage in sexual harassment, the headlines over the last year – and recently with CBS CEO Les Moonves – are littered with deplorable accounts of men using their power to take advantage of female employees.  These headlines follow a sea-change event where sexually-abused and harassed woman are refusing to suffer in silence.  Instead, beginning with the downfall of movie producer Harvey Weinstein in late 2017, they are coming forward in waves with their stories, bringing with them a glaring hot spotlight on the darkest corners of corporate offices all over the world.  This is the #MeToo era.

While the news headlines tend to focus on the misdeeds of the rich and famous, for in-house lawyers the concern is local – but just as important.  The #MeToo movement provides added urgency for in-house lawyers to make sure their company is doing the things necessary to prevent disaster and ensure a safe workplace for women and men.  As usual, dealing with sexual harassment claims in the #MeToo era comes down to getting the basics right.  For many companies, it is easy to trace the devastating impact of a particularly damaging sexual harassment claim to two problems: failure to properly investigate and failure to take appropriate action.  This edition of “Ten Things” discusses the key things you should be doing to both prevent sexual harassment from occurring and, if it does, properly investigating and resolving such claims:

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Ten Things: What In-House Lawyers Need to Know About Joint Ventures

You’re sitting at your desk, slurping down a big mug of coffee, when the CEO stops by your door.  “Guess what,” she says. “We’re going to do a joint venture with Mega Corp! I need you and your team to get right on it.”  You say, “You’re [messing] with me, right?  Joint ventures are where good business ideas go to die.”  Well, you don’t say it, but you sure are thinking it because you know that most joint ventures never perform as expected, many severely underperform, and most terminate early because the parties cannot agree on some issue.  Regardless, joint ventures are not going away – CEO’s just seem to love them.   And when the business wants to move forward with a perfectly legal idea, in-house counsel fall in line and do their utmost to make the deal happen (and draft documents that help minimize problems down the road).   While it is impossible to consider every possible problem that might arise over the course of the joint venture, you can set up a process that will allow the parties to minimize potential issues.  How?  By spending a lot of time upfront thinking about the key considerations of putting the venture together.  This edition of “Ten Things” walks you through the basics of setting up a joint venture:

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Ten Things: Legal Project Management for Beginners

Managing a legal project is not an easy task.  Not for in-house counsel or for outside counsel.  There are simply too many ways for a project to “come off the rails” and turn into a disaster.  Usually, the disaster has to do with cost/budget.  While blowing the budget is definitely not good, a worse scenario is when the disaster results in the project failing, be it a contract, and merger or acquisition, or a piece of litigation where the stakes are high.  A project “fail” can mean big problems for in-house lawyers, all the way up to being shown the door.  This is why it’s so important for in-house counsel and outside counsel to be on the same page any time there is a project of material size or risk.  The key for in-house counsel is understanding that you cannot simply turn the project over to outside counsel and “hope for the best.”  Successful legal projects require the involvement and input of in-house lawyers every step of the way.

Over the past decade or so, “Legal Project Management” has grown into an accepted (and in-demand) way to manage legal work sent to outside counsel.  However, it can be a rather involved process and while I am a big believer that it does pay off not all in-house lawyers are ready to step up to the level of commitment required to really do “LPM” right.  That’s okay.  I think any in-house lawyer can apply the basic concepts of LPM and even a cursory application of the basics will lead to better project management and better results.  This edition of “Ten Things” discusses the basics of Legal Project Management and how you can utilize them as a “beginner” to the process:

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Ten Things: How to Negotiate – Practical Tips for In-House Counsel

One of the most valuable skills an in-house lawyer brings to a company is the ability to negotiate.  In-house lawyers negotiate contracts, M&A transactions, litigation resolution, government/regulator inquiries, internal squabbles, and a host of other issues.  While negotiation is an important skill, it is rarely – or poorly – taught in law school (certainly here in the USA).  Meaning, unless you were fortunate enough to learn negotiation skills while employed at a law firm (and I’d wager that it is hit and miss whether your law firm truly spend time teaching negotiation skills), your ability to negotiate is largely self-taught.  Some of us get by on instinct and natural ability, some of us flounder a good bit, sometimes doing a great job, sometimes not.

I am a self-taught negotiator, picking up bits and pieces of good and bad advice along the way.  I have negotiated a large number of contracts and settlements in many different countries and I supervised those that did as well (learning as much from that process as being in the room).  One thing I learned for sure was that regardless of where you fall on the continuum of negotiation skills, there is always room for improvement.  As usual, there are some core things you need to know and understand in order to develop or improve your skills in this area.  This edition of “Ten Things” will discuss how to negotiate:

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Ten Things: Dealing with the Board of Directors

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:

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Ten Things: Best Legal Blogs for In-House Counsel (2015)

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):

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