Knowing what your key client departments do and how you can best support them is vital information for any in-house legal team.
In-house lawyers work in a wide range of organisations. What you’ll find in your in-tray will depend largely on the nature of your organisation’s activity and the business sector. Here, we look at the departments you’re most likely to share processes with and how you can work with them for the benefit of your organisation.
Procurement and contract management
In larger organisations, procurement and contract management is often a specialist, independent function. It works closely with the legal team to procure products, services and suppliers on the most favourable terms possible and, increasingly, to ensure that value is delivered from the contract across its entire term and not just at the time of contract conclusion. Its room for manoeuvre depends on the organisation’s buying power.
Whether it’s procuring on standard or bespoke terms, the procurement team will need:
- Purchasing T&Cs, order forms, request for proposals (RFPs) and non-disclosure agreements (NDAs);
- Contract playbooks covering negotiation positions, variables and sign-offs;
- An understanding of the read across to other related arrangements with suppliers, particularly where those are fixed or non-negotiable and the back-to-back risks;
- Advice on the legislative and regulatory impact on the process, whether in relation to public procurement rules, international trade rules and their impact, Brexit, supply chain compliance or anti-bribery legislation;
- Guidance on the impact of supplier insolvency; and
- Processes for amending, terminating or exiting contracts.
You will help the procurement team by developing a suite of standard documents, providing training and advising on the impact of legislative, regulatory or business change on existing contracts throughout their life cycle and those under process.
The contract management team’s job is to control the terms and conditions of the organisation’s contractual arrangements. Much of this work will be electronic, however, the team will rely on legal to support lifecycle management. Contribute by highlighting the impact of business and external change on contract terms, ensuring the terms provide maximum flexibility and setting out the consequences and options where flexibility is absent.
If your organisation sells products or services, you’ll probably be involved in drafting and reviewing the contracts. The content of these contracts could range from standard terms and conditions to complex purchase and resale agreements for high-value products.
Whatever the context, you’ll need to know:
- The business process. Whether this is straightforward or complex, with multiple parties involved, you need to be aware of who's doing what;
- The financial arrangements. How does the money flow in the process? How will your organisation get paid, by whom and when?
- The methods of distribution, which could include retail outlets, online channels or sales agents;
- Any relevant national laws and regulations. For example, your products and services may be subject to environmental or consumer protection and supply chain standards;
- The price your organisation needs to achieve at every stage of the sales process;
- Whether the contractual arrangements are based on your organisation’s standard T&Cs, industry standard agreements or bespoke terms; and
- Where the risk points are and how you’ll manage them, including in relation to planned and unplanned change.
What compliance is and how it's managed can differ greatly from one sector to another. The pharmaceutical industry is different from banking, from oil and gas, from the automotive sector, and so on. However, all regulated and large commercial businesses need sophisticated compliance plans. They rely heavily on good legal advice, both in steady state and in pressure or crisis situations. Breaching anti-corruption laws, such as the Bribery Act 2010 and the US Foreign Corrupt Practices Act, can have dire consequences for organisations and their executives.
With increasing compliance risks and the development of specialist teams and programmes, the legal team will play a key role, either as part of the compliance unit or as an adviser. Expect to be involved in:
- Embedding compliance in company policies;
- Developing or applying a corporate code;
- Carrying out due diligence to identify past and potential breaches;
- Looking beyond your organisation and into the entire supply chain and other relevant relationships;
- Training and audits; and
- Stress tests.
You’re likely to be closely involved in HR matters that have a legal dimension. Where legal work is outsourced by HR, you can act as the 'intelligent client' to help structure or filter external advice, particularly in contentious situations.
You’ll also need to help HR update and monitor many of the people-related policies it develops for the organisation. Typically, these policies will cover:
- Contractual arrangements for employees and contractors, including NDAs and perhaps IP matters;
- Maternity and paternity;
- Diversity and inclusion;
- Gender balance and reporting;
- Performance management processes; and
- Disciplinary policies and investigations.
Organisational change arising from a business sale, merger or acquisition will raise HR issues. These include TUPE (Transfer of Undertakings (Protection of Employment)), consultation procedures, staff transfers, redundancy, severance terms and tribunal claims.
It is particularly important when working in an international organisation to ensure that HQ plans, processes, budgets, timings, communications etc. are made in full awareness of differences in employment law between HQ and the other countries in which you are present - it is important that HQ does not decide to do something centrally that cannot be delivered locally.
Employment law changes often, so HR will need support from specialist internal lawyers either in the legal team or sitting in the HR department. Either way, HR and legal will need to work closely together to deal with the high volume of legal content in employment policies and procedures.
Intellectual property (IP)
Organisations are increasingly aware of the need to value and protect their IP. For some, this is crucial to their business model as they develop their presence in national and international markets. In these organisations, legal input is part of the business cycle. You’ll need to ensure that new products and services are protected and that the organisation can exploit its IP in accordance with its corporate planning.
How IP protection and exploitation is structured in your organisation will depend on the nature of its business. There may be a dedicated IP team. Generally, organisations look to protect:
- Their products and services;
- The names of their products and brands;
- The design or look of their products; and
- Written materials and other creative media.
Your team will advise on what IP rights can be protected and make the necessary applications for trademarks, patents and design rights.
It's important to build in the necessary legal review and sign-offs. Work closely with business colleagues to avoid blockages and use process manuals, matter management systems and training if you feel they’ll help.
Marketing and advertising
In regulated sectors, such as financial services and pharmaceuticals, restrictions limit the claims an organisation can make about its products or services. Whether or not you work in a regulated organisation, you’re likely to be involved in:
- Website compliance;
- Advertising approval;
- Sales policies covering channels, commission, distribution and agency contracts;
- Online sales and distance selling regulations;
- Brand and IP protection; and
- Data privacy matters.
You’ll also be involved in high profile complaints and regulatory actions where processes may have failed.
Whichever departments you work most closely with, stay close to the business process. Get involved at the appropriate stages and be available should anything go wrong. For compliance purposes, it's vital you're in the loop early when new products or services are being planned. You'll also need to keep your business colleagues aware of how legal and regulatory change will affect their activities and planning.
To be effective, you’ll need to be part of your organisation’s key processes. Whether this means approving contract terms, advertising copy or protecting a patent, these processes needs to involve the right people at the right time and include sign-offs and approvals.
You may not need to see everything but your model must allow for standard matters to be dealt with in the business unit, where appropriate with escalation procedures to the legal team. Building an effective model like this is something you should be involved in. You want to avoid situations where you are not involved until late in the day until someone in the project team asks 'perhaps legal should see this?'