in-house counsel

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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Ten Things: How to be More Productive Every Day

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.

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Ten Things: Common Ethics Issues for In-House Counsel

I was in-house counsel for over 20 years and served as Chief Compliance Officer for a good part of that time.  One of the challenges I recall for me and my legal team was finding practical advice for in-house counsel around ethics issues.  We held a number of CLE presentations on ethics every year — helpful in terms of yearly mandatory ethics-related CLE hours.  While welcomed, the presentations generally left me less than satisfied because most of them were heavily focused on parsing out the text of the relevant Rules of Professional Responsibility (in our case, Texas), with a lot of focus on words like “shall” and “may.”  I am not saying this is not important, but what I came to realize is that many of the ethics issues I dealt with as in-house counsel were broader than what a specific section of the rules did or did not mandate me to do.  Instead, what I really needed was a general awareness of my different ethical obligations (including those under the rules) and whether I knew or could easily find the answer to my problem, or if I needed to ask someone for help to figure out the next move.

This edition of Ten Things will take on that challenge and discuss some of the basic ethics issues faced by in-house counsel and how to deal with them or what to keep in mind as you analyze the situation.  There are definitely some traps out there for the unwary.  Hopefully, after reading this you’ll have a better understanding of some of the key things around ethics you need to keep in mind as in-house counsel and when you may need to ask for help.  Apologies to my international readers as this is a pretty U.S.-centric discussion though I think the themes apply globally.

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