in-house counsel

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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