To be effective as an in-house lawyer, you’ll need to understand how your organisation is structured and what the responsibilities of its various departments and teams are. This will allow you to channel your activity and resources into areas that best support the organisation in meeting its strategic targets.
Know your organisation
Organisations structure themselves in different ways depending on the nature of their business and how their senior management responsibilities are divided.
Businesses that design and manufacture goods, for example, put an emphasis on product development along with sales and marketing. Organisations operating in highly regulated sectors will, necessarily, emphasise the regulation and compliance functions. And large government or non-government public bodies, have entirely different structures altogether.
Sometimes, what is essentially the same function is given a different name in different organisations. Department names also evolve over time - many legal departments are today known as the General Counsel’s department or the Legal and Compliance Directorate.
That said, you’re likely to find some or all of these departments in most organisations, depending on the nature of their activity:
- Research and development;
- Sales and marketing;
- Strategy and policy;
- Corporate communications;
- Compliance and risk;
- Company secretariat; and
Additionally, you may find departments or teams devoted to business development, intellectual property protection and development, knowledge management and government and regulator relations.
How these functions are organised and how they interact with each other can also vary depending on the nature of the organisation and its culture. The current tendency for CEOs to limit the number of their direct reports has seen previously separate functions become consolidated into areas of activity and responsibility. This has given rise to a swathe of new executive roles. For example, in addition to the CEO, you may find yourself working with a Chief Operating Officer, Chief Financial Officer, Chief Information Officer, Chief Technology Officer, Chief Investment Officer, Chief Personnel (or Talent) Officer, Chief Strategy Officer and, of course, the Chief Legal Officer.
So, with this overall context in mind, we look below at some of the key functions of organisations and provide a brief summary of what they do.
This key function (whatever the organisation’s activity) is headed by the Chief Finance Officer (CFO) or Finance Director, who will be a member of the executive management of the organisation.
With responsibility for the organisation’s financial affairs, the department’s role includes:
- Controllership – providing accurate and timely information about the organisation’s finances;
- Treasury – investing the organisation’s money and managing its capital structure. This will take account of the organisation’s attitude to risk, its liquidity needs and its regulatory obligations; and
- Forecasting and strategy – reporting on the organisation’s financial position internally and externally and analysing its activities so as to forecast the financial impact of future strategy.
Finance is also involved in management accounting, accounting and tax policy, assumption setting, budget setting and reporting and audit procedures.
Because the financial wellbeing of a commercial organisation affects shareholder value (where appropriate), and market and/or stakeholder confidence, finance is a key function which has a high level of insight over and influence on every part of the organisation (as legal also should). For this reason, CFOs/Finance Directors are often among the two or three most senior people in their organisations and have, traditionally, been one of the most common "stepping stone" roles towards becoming the CEO.
If the organisation manufactures, or part manufactures, goods, its production function will be a central part of it. The production function’s remit may extend to plant and equipment, methods of production, stock control and quality control.
Things get even more complex where an organisation has production facilities in different countries and where it buys in materials or part-completed goods for completion and onward sale.
If the organisation develops and provides services instead of products, the priorities of its production function (or equivalent) will be quality, pricing and competitiveness.
All organisations buy goods and services, so purchasing is a key function. Larger organisations have a dedicated procurement team whose role is to buy on the most favourable terms. Good contract systems and contract life cycle management are a key part of successful procurement. For this reason, the legal team usually helps to establish these systems and support the purchasing function, particularly for non-standard contracts and purchases.
Research and development (R&D)
R&D is vital in sectors such as pharmaceuticals, where development time and costs can be considerable – not just in regard to new products, but also to the improvement of existing ones. Because there’s often a close relationship between R&D and patents and intellectual property rights, this is another area where the in-house legal team can contribute to the organisation’s wider strategic goals.
Sales and marketing
Commercial organisations depend on their ability to sell and market their goods and services. How they do this depends on factors such as the size of the market, the cost of sales and the regulatory framework.
Sales channels can include online sales, physical outlets and bespoke services for higher value or more complex products or services. Whatever the channel, price, distribution, quantity and quality are key factors to consider. There’s also the possibility of product recalls and regulatory compliance, which will often require input from the legal team, particularly for non-standard or bespoke procedures. High volume standardised procedures are also likely to require legal input, especially at the outset when systems and contract terms are drafted and defined. This should include looking at helpdesk and complaints policies and escalation loops so that learnings from supply and use of the products and services can be fed back into contract terms, sub-contractor terms etc. In many sectors (especially Financial Services) this is a key area where legal need to be involved in ensuring the Treating Customers Fairly (TCF) standards are applied not just to the contract terms but also to how those terms are applied if an issue/fault occurs.
Legal issues raised by marketing activity include advertising and TV standards, brand promotion, prize draws, distance selling regulations, customer relationships and regulations governing data protection and various marketing methods. Increasingly these teams, and therefore legal, need to look at viral marketing, video logging, in online game advertising and other fast evolving promotional tools in the online world. All these will be closely linked to the protection of the organisation’s brand or brands, which the legal team is likely to be closely involved in and where reputational concerns are often more important than whether or not an activity is strictly legal and/or, in the event of a problem arising, whether the proposed remedial actions are the most legally defensive or simply the most reputationally protective.
The influence of HR has expanded considerably as organisations seek to maximise their people in a competitive market for skills and talent. A full function HR team deals with a wide range of issues, including:
- Recruitment, advancement and succession planning;
- Training and development;
- Organisational design and team structures;
- Statutory and voluntary reporting and analysis on mandatory items, such as Equal Pay Act reporting, and voluntary compliance initiatives such as Investors In People;
- Employee relations;
- Contracts and employee benefits;
- Employee compliance training;
- Employee health and safety compliance -including safety courses, workplace assessments etc;
- Contract, interim and "consultant" staff (now a high risk area due to recent "gig" economy court decisions); and
- Grievance and disciplinary procedures; and
- Challenges arising from organisational change, such as redeployment, redundancy, TUPE, (Transfer of Undertakings (Protection of Employment)) and severance.
Many of these matters have a legal dimension. For this reason, most HR professionals have a good general understanding of labour law, however they’ll often need to work closely with in-house lawyers and/or external providers, particularly in relation to high risk areas.
Today, all organisations are heavily dependent on the scale and reliability of their technology infrastructure. This means the IT department is increasingly a key player. Without robust, secure and easily navigable systems in place, organisations can quickly become uncompetitive and subject to customer criticism. Poor IT infrastructure can also give rise to compliance failures and expose an organisation to regulatory sanction.
And if that’s not a big enough challenge, technology develops extremely quickly. Organisations must continually assess the scope for, and cost of, technology upgrades, improved accessibility and efficiency enhancements. Contractual issues relating to technology hardware and software are complex and wide-ranging, so the legal team will need expertise in these areas to protect the organisation from unfavourable terms and arrangements. Brexit has added another complication as to where software supplied as a service is actually hosted and, of course, it is important to work out how you will get access to documents, emails, records etc. if you end up being in dispute with your, often outsourced, IT suppliers.
Strategy and policy
While most organisations’ strategies are set by their boards and executive management, it’s not uncommon to have an executive specifically responsible for this area – perhaps as a Chief Strategy Officer or as a Director of Corporate Affairs or Policy. In some organisations the role is fulfilled by a Chief Operating Officer.
Whatever their title, the person responsible is tasked with bringing their organisation’s policies and strategic plans to fruition through operational actions. This could be in relation to ‘business as usual’ or by way of major initiatives such as product launches, business expansion or relocation.
The scope and importance of strategy and policy management means that the person who oversees it is often among the two or three most senior and influential managers in the organisation. And, because the implementation of business plans will, inevitably, involve legal actions and risks, this function will work closely with the in-house legal team
Top table functions and the in-house lawyer
However an organisation is structured, its team of in-house lawyers will have close working relationships with many of the areas we’ve looked at above. Between them, these functions will need legal advice on contractual terms and conditions, procurement, regulation, intellectual property and information rights, among other issues.
The challenge for you as an in-house lawyer is to provide prompt, relevant and clear advice. In the wider organisational context, you can then justify your seat at the senior table (or stake a claim to it) by demonstrating the value of what you do.
Increasingly, there’s a move away from the generalist senior manager to that of the leader/expert with strong industry and subject expertise and excellent communication and management skills. For the General Counsel, this is an opportunity to become a key member of any senior team in a 21st century organisation.
The functions represented at the top table vary across organisations because responsibilities are divided differently. The business of the organisation and the sector it operates in will mean that certain roles have a higher or lower profile. Increasingly, the top table comprises the C-suite of role holders with responsibility for operations, strategy, technology, risk, compliance and people. They are increasingly subject matter experts with deep industry knowledge and well-developed communication and team skills.
The General Counsel and the in-house legal team need to be familiar with the roles and responsibilities of those at the top table and to be able to interact confidently with them. There’s no substitute for good legal skills, business understanding and excellent communication and interpersonal skills.