As an in-house lawyer, how you give legal advice will vary depending on the circumstances and on who’s asking. You may need to construct formal written advice going into some detail about the issues, risks and options.
Often, however, your advice will be given more informally, typically by email or perhaps verbally. Often your advice will deal with the legal issues but will often also cover some of the practical ways in which an issue can be dealt with in light of the relevant legal risks.Given that your primary role as an in-house lawyer is to give legal advice, it’s important that what you say is heard, understood and acted on. How then, can you ensure that this happens?
1. Listen first and then ask questions
It may be tempting to dive in and solve an issue or help provide a solution at the earliest opportunity but this may not be what’s needed. It’s important to first understand the issue in its organisational context. You may be able to see clearly what the legal issues are but these are usually only part of a wider organisational issue, which you may need to get to the heart of.Sometimes, for example, the client only provides you with the information they think you need, perhaps limiting their request to narrow legal points or the points they think really matter. But the context can be really important and may affect your advice.
Of course, you’ll need to exercise judgement as you won’t want to be swamped with unnecessary information when dealing with a pretty straightforward point. Key to getting to the heart of issues is having a good understanding of your organisation, how decisions are made and who the key decision makers are.
2. Advise from a position of strength
It matters that your client colleagues know and trust you. Knowing you may be easier if you’re in a small organisation or in a small team but it always helps to be visible. Whilst volumes of work may make it difficult to leave your desk, it really does help to get out amongst your colleagues from time to time, not least as it’s the surest way of learning how the organisation works and about its people.Trust is trickier. Visibility is not trust. What engenders trust is credibility and respect. Credibility is developed by being good at what you do and respect by the way you do it. So, get the law right, don’t overpromise and under deliver, do things on time, act with integrity and don’t prevaricate. These are not always easy to do but they are key to your effectiveness in your role.
3. Get involved early
While you clearly don’t need to know about every legal issue in the organisation, it is important to be involved as early as possible in activities and plans that give rise to important legal issues. One reason is that others may not always appreciate how significant those issues are and early warning may save time and money.Getting involved early is not always straightforward. Others may not see where you can add value or may be suspicious that you’ll block their plans. It will help if there are processes in place for legal to review particular business actions at a particular stage rather than you relying on ad hoc referrals late in the day. It also helps if legal risks have previously been audited and checks, balances and processes put in place (perhaps in response to a previous crisis) to manage them. Otherwise, it’s important to work hard at demonstrating to clients the value of having you involved at an optimum stage rather than too late when pausing or changing course is much more difficult and expensive. Detailed understanding of your clients’ work and exhibiting a proactive, can-do approach should really help here.
4. Communicate clearly
It’s not always easy to advise on tricky legal matters in a way that answers the business issues in play. Usually, your clients will not be interested in the law, only on how it impacts what they need to do. You’ll want to avoid just setting out the legal position and then leaving it to your clients to work out the consequences for themselves. In simple terms, this means framing your advice along the lines of (for example) “You cannot do X but you can do Y”; or “You cannot do X until we comply with the following legal requirements”; or “You cannot do this (either at all, or in this way) because it would breach material legal or regulatory provisions with which we must comply.”Communicating clearly also means using everyday (business) language, avoiding legalese and management-speak. If you’re advising in writing, start with the problem and the answer (of which there may be more than one). Keep it short and, if necessary, use an executive summary and headings. Relegate your legal reasoning to a requested follow-up or an annex.
If you’re advising verbally, think about how you’ll present it. For example, if you know you’ll need to provide some advice in an upcoming meeting, focus on the key issues only and think about the follow up questions you may get. There are always “what if” and “what about” questions, so make sure you can deal with these beyond the first couple of levels. Plan your first sentence and the impression you want to make on your audience. Generally, say as little as you need to, not as much as you can.
5. Don’t wing it
You don’t always have time to prepare as you may be asked a tricky question on the hoof. If you don’t know the answer, but you should, mark that down as an improvement point but don’t make up the answer. Nothing will lose you credibility and trust faster than getting it wrong, either because you haven’t done your homework or because you’re bluffing it. If you don’t know, say so but do follow up quickly and accurately.At the same time, try to avoid being railroaded into a view too quickly even if the activity or plans you’re being asked to advised on are already in motion. Here, you may want more time to properly consider but you may need to provide an early legal steer on whether the activity can proceed or be paused as you don’t want to leave matters up in the air if at all possible. This isn’t always easy if you’re on the spot in a meeting, for example. Don’t be embarrassed by not being able to give a complete, polished answer. Rather, deal with the issue as best you can at the time. For example, “based on what you say, my initial view is x but this merits further thought as the implications could be significant if we get it wrong. Let me take this away and get back to you by y.”
The point here is that you will need to develop your ability to avoid an instant answer where that is not sensible, whilst at the same time preserving your credibility. But, in essence, you’ll earn more respect by being accurate and considered rather than quick but wrong.
6. Do your homework
Lawyers are trained to be thorough and you’ll be expected to know the relevant law even if your colleagues do not want to hear chapter and verse. But you need to be up to date and get the law right. You cannot have credibility or influence if you are not on top of the legal arguments. At the same time, you’ll be expected to know a good deal about how your organisation works. What do other departments do and what are their key challenges? What are the organisation’s markets and financial performance and results, its priorities and threats? How are decisions made and who makes them? In other words, you need to be immersed in the business of your organisation, even if you are clearly not expert in other areas. It will not work to adopt a “we only deal with the law” type approach. You need to be informed and curious.7. Don’t preach or patronize
One of the things that can turn your colleagues off lawyers is any tendency to preach or patronize. It’s an easy trap to fall into as often you’ll be dealing with other people’s mistakes and omissions. What they won’t respond to is an attitude that suggests to them that they’re idiots and that you have all the answers. Such an attitude can result in your colleagues being reluctant to consult you at all, which could have disastrous results. Consequently, it’s important to adopt a more accepting and helpful approach. After all, what people want is your help in getting a problem solved or getting something done rather than a lesson in how they might have messed up in the first place. That’s not to say that you shouldn’t point out ways of avoiding future problems but you need to do that carefully if you’re dealing with their areas of expertise. After all, how would you take to a colleague giving you advice on how to run the legal department!As ever, your tone, demeanor and choice of language are important in your dealings with others, particularly so in the midst of a critical issue where people are stressed and tempers may be more easily frayed.
8. Peer reviews and draft advice
If you’re advising on important issues you may need (or want) to run your draft advice on your thinking past your line manager or another senior lawyer in the department. This often helps even if you are senior yourself. This may involve you needing to include more of the legal detail or argument than you will pass onto the client, but it’s a good way of getting your thinking in order, and ensuring that you’ve covered all the relevant bases. You may also need to brief the GC, or a senior lawyer, on a matter that they will need to speak about at a board or committee meeting, and this is also a good way of learning how to craft advice that focuses on the key issues and achieving the right balance between the law and its impact on the organisation. You can also use your legal colleagues to rehearse how you’ll give your analysis in any meeting where you’re expecting to be questioned on difficult issues.Think also about whether you can use draft advice as a way of clarifying matters with the client, perhaps asking whether you’ve included all the relevant issues and whether it addresses the real problem.
9. Learn to be resilient
Because you’re working closely with your colleagues, you get to know pretty quickly what they think of what you’re telling them. There may be some toing and froing while facts are established and matters clarified. But not everyone will always agree with you and that is part of being an in-house lawyer. And sometimes you (or someone in your team) may get something wrong or make a mistake. It’s important not to let this derail you. First, realise that you’re not expected to be perfect (it’s impossible). Second, fess up quickly to mistakes and work to put them right, where possible (it usually is). Third, bounce back with taking a quick win if you can – say, by exceeding expectations on a task. Fourth, particularly in times of crisis or rapid change, stress levels are generally higher and it helps to factor this in. Fifth, you will learn more from how you react in challenging circumstances. Improving your ability to cope under pressure will stand you in good stead the next time things get difficult. Finally, don’t struggle alone. There are no prizes for ploughing on regardless. Ask for help and support and use your support network both in and outside the organisation. Remember resilience is learned and it’s usually not learned when things are going smoothly.10. Dealing with push back
Your advice and help will not always be accepted without question. Indeed, some of your clients may be quite vocal in challenging what you’re telling them. It’s important not to feel intimidated or swayed by this. Yes, they may sometimes be right or may rightly be pointing out things that you hadn’t thought of. In which case, accept this graciously and take it as a learning point. But if the ‘dispute’ centres on the law and you know you’re right and that particular legal (and perhaps ethical) risks are being downgraded or overlooked by others, then you need to stand your ground. As ever, this means remaining calm and measured and pointing out the consequences of your advice not being taken. Ultimately, you cannot control what others do but the work you have put into establishing your credibility and building trust and strong relationships should make others realise that if you are advising strongly for or against a particular position then you would not be doing so without good reason.These kinds of situations also call for a good escalation policy involving the GC and other senior legal leaders and the organisation’s senior management and, ultimately, the board. The exact process may differ but the point is that legal advice on key matters and risks should not be allowed to be ignored or overlooked. Rather, there must be processes for the advice to be considered at the highest appropriate level to ensure that the interests of the organisation are being protected.