I think this depends on two things – one what are the potential legal implications involved now and in the immediate future and what is the nature of those implications. Are they risk based or do they go to reputation / have more serious consequences.
If it’s the later then it's important to insist on getting involved. If it’s the former, then ultimately you need to have some way to triage new commercial projects and prioritise legals involvement in them otherwise there is a danger of legal being a bottle neck and no one will thank you for that and at worst go out of their way to avoid engaging.
Secondly have regular catch ups with the key stakeholders and discuss the whole portfolio of work – your stakeholders will have multiple projects on as well so it's important to understand their pressures and having regular catch ups will enable you to work out which ones you need to ensure that the legal dept is involved in and when.
Chris Fowler - Chief Operating Officer - Legal, Rio Tinto
Be inquisitive (AKA be a pain!)
Most, if not all, in-house lawyers will be familiar with the struggle of being pulled into a project at the eleventh-hour, in the hope that any legal issues can be resolved by them in those final 60 minutes.
To avoid this, and to get a seat at the table early-on, I tend to:
- check-in generally with stakeholders during other calls, to see what else they have planned in the pipeline.
- ask plenty of questions as soon as you do become involved.
- offer to attend project meetings as needed.
- follow-up with stakeholders after seeing project-related news on the intranet.
- anticipate problems by educating project teams generally on the key legal and compliance implications of a project.
I tend to find that, the more we in Legal get involved in projects early-on, the more likely we are to be asked to contribute from kick-off stage.
Remind the business of your remit, skills and benefits.
Another key tool which I use is to remind the business why it’s worth getting the Legal Team involved – for example, run a show-and-tell of the benefits seen in a previous project, and what went wrong/ could have gone wrong had Legal not been summoned at the outset.
In particular, remind them that you’re more than just a legal mind – you’re a key strategic partner, who understands the business’ commercial goals and objectives, and who factors all that in when advising on legal, risk and compliance.
Firstly, by changing the language – “I want to be in early to raise a lot of legal issues [and leave them hanging all over the project confusing people and slowing them down]” is not a good idea. Let’s try “I want to ensure that we work together from the very start of your project so that we can efficiently and effectively ensure your project and its outputs are compliant by design as we go along as this is the best way to get good sustainable legal and regulatory outcomes without creating hassle, delay, or surprises”.
Secondly become well known as a pragmatic and effective team member and problem solver who is easy to work with (but not a push over) – as the rest of the project team will be – law is only another input to a project in the same way as, say, software coding is – so be inclusive and involved not awkwardly exceptional.
Thirdly be clear about what does and does not need to be done from a legal and regulatory perspective for each project “e.g., compliant outcomes by design, for law, regulation (i.e., DP), contractual commitments etc” so that people understand what you need to be involved for and why.
Fourth get to know the people, the plans and the projects - so you know what is coming and with whom and then you can be proactive in getting involved at the right time – and reciprocally get to be well known, well understood, respected for what you do and preferably, liked so that people remember to, want to and will engage with you – but will not try to trick you or set you up for doing other peoples’ work or becoming a “legal rubber stamp”.
Build effective relationships with the people you support in the business. If they get to know you and respect what you are doing, then there is a good chance they will bring you in early on matters as well as trust you.
Ian White and Simon McCall - In-house legal consultants
The benefits of early legal engagement on key projects can be huge. Yet commercial project leads can be reluctant to bring lawyers into the room too early because they perceive legal to be a blocker, whether or not that is fair.
Mainly, I do think in-house lawyers do want to be part of the team and to contribute to the success of key projects. However, even when we are intending to help, sometimes the way we help, can get in the way.
The first thing we can rely on to help navigate this situation is our empathy. It helps to put yourself in the shoes of the person who is running the project. Commercial leads are under pressure to deliver projects that will generate benefits to the organisation. Understandably, they want to see those projects succeed. If they see you as someone who can help them deliver that success, you are more likely to be invited into the working group at the early stages.
They may have a large degree of enthusiasm for the project. So before we launch into a catalogue of risks that could sink the project if not managed properly, why not ask first about what excites them about the project and then relay that back to them in plain English to show you understand? Some non-lawyers may assume that you will be risk averse and will try to poo-poo the project because of risks. We have to go over and above to correct this sometimes.
The second thing that I have found useful is to be mindful of the way in which I advise. Our job is not just to spot risks, it is also to help solve problems. If you can give the commercial lead options for how a problem can be solved, all of a sudden you are an enabler rather than a blocker. That will make it more likely you will be engaged early next time.
Third, recognise that you may need to be flexible with your communication style and method. Try not to surprise or embarrass your commercial lead particularly in front of their executive. Decide how and when to communicate difficult messages carefully. If you have really bad news, bring them into the loop early and try and work out together how to take the issue forward, preferably face to face, rather than making a big splash on a group email about it.
Last, it sounds a bit corny, but I do use team language with internal stakeholders. Sometimes, I might start an email with “Hi Team” instead of “Dear all”. I also try to use “we” and “us” and “our” instead of “you” and “yours” to include myself in the team.
There are probably two parts to cracking this.
The first is doing anything you can to improve your chances of finding out about commercial projects that might need legal input in the first place. Anything that gets you in contact with the business will help – training sessions, introducing a new team member and asking for a quick update on major ongoing projects, getting involved in wider organisational projects to build your network, getting legal representation on key working groups. All these methods can take time so don’t pass up any chances to get a boost from wider events – a regulatory investigation in your sector can really help, for example.
The second part is making sure that when you get involved, your input is user friendly and constructive even when there are risks to highlight. No problem spotting without suggestions for mitigation if at all possible. Highlighting where you’ve used a solution successfully in the past and the business gains made/perils avoided usually helps. Precedents from elsewhere in the business may have even more force if they really light up why early advice cleared the path and avoided pitfalls.
To really add value as an in-house lawyer, people need to want to engage you early on. You will be seen as more effective and efficient if you have the time you need to shape matters as they develop, rather than trying to retrofit legal protections into matters that are already going at pace, or which are close to going live.
If you are unlucky enough to face this, you may feel under personal pressure to move things along quickly. This may reduce your capacity to give well rounded advice and leave you feeling like a 'rubber stamp' for fear of causing unexpected delay and disappointment.
The other likely casualty in this scenario is a good working relationship with the business, which may feel strained if targeted go live dates become at risk.
If you find yourself in this situation, it can be helpful to think about why the business are not coming to you with sufficient time.
Is this because they avoid coming to you consciously or unconsciously? If so, why? Do they understand the great work you do, value you add, likely timescales, complexity and what information you need to work efficiently? Or do they find your work confusing, unpredictable and complex?
Here are a few steps that may help:
- Can you reach out to business teams before they need to instruct you? Can you make sure they know your name and what value you add before they need it?
- Do you understand what the business needs? Do you strip out information, advice and work that the business does not need, even if they ask for it? Are there ways you can lead the business towards more efficient ways of working?
- Is there more you can do to demonstrate your alignment and how you meet business objectives? This can be a more powerful motivator than meeting compliance requirements.
- Can you make the process to engage you easier? Are there complex instruction forms and processes that get in the way, and which do not integrate with wider business processes?
Spending time thinking about how you interact with the business, how you meet strategic objectives and how you are engaged can help you ensure legal issues are raised in a timely manner.
It’s quite common for in-house lawyers to feel that they aren’t involved in commercial projects soon enough to raise legal issues. Of itself, that is troubling – but it may also mean that the project’s commercial goals are at risk. So how can you get involved early enough? While it’s possible that your commercial colleagues are deliberately not involving you – perhaps because they worry that legal will act as a ‘blocker’ – in reality it’s more likely that they haven’t considered approaching you. They may feel the project is at too early a stage, that it is simply an idea which isn’t yet fully formed, or perhaps that they don’t want to trouble you yet.
The keys to early involvement are communication and trust, which go hand in hand.
On communication - sometimes lawyers feel that they must wait to be instructed. Communication is a two-way thing, though, and approaching the right colleagues at the right time is important. Make clear that you are willing and able to discuss matters, and that you understand that you’re happy to listen to early conceptual options.
That simple conversation may be enough to improve matters. Ideally, though, you should also ensure there are appropriate structures in place to capture issues early on. Could you have regular catch-up sessions with relevant commercial colleagues? Can you join strategy and budgeting sessions? Most organisations have strategy and budgeting sessions where projects are considered at an early stage – are you part of those sessions? Do you have regular engagement with your organisation’s strategy team?
Often, new projects hang off a formal strategy, so if you can find out what is proposed, what is likely to be approved, who is responsible for projects, and what timescale or resource is involved you will be very well placed to provide early input. Depending on the scale of your legal team, you may want to involve particular team members in the regular divisional or management meetings in areas of their responsibility. If your team members are seen as business partners and are part of those meetings, they will usually see the papers for meetings and planning sessions. That may well mean they can input into projects which are still at a very early stage and can influence how they progress. If that can be done, you will avoid late interventions which may cause embarrassment or expense, and legal issues can be raised and aired early on.
On trust – while the communication structures should enable you to find out about and become involved in projects as soon as they are raised in the organisation, ideally you will want to become aware of them even before they reach a level of formality. In other words, you will want to know what your commercial colleagues are thinking about – and that needs them to respect, trust and value your input and judgement as a trusted advisor. There is more about building trust in the next answers in this series and you may want to look at them too.
If you can win the trust of your colleagues, and ensure there is regular two-way communication with them, you are well on the way to getting involved early on.
Richard Tapp - legal sector specialist