You can provide focused, targeted advice allowing you to deliver timely solutions, and to maximise the use of your legal knowledge to help the organisation.
Sometimes, though, you may find that you need to read between the lines when advising internal clients.
This can be a positive – where colleagues simply assume that you understand what is needed, and how to steer their transaction through internal processes as well as the legal matrix. It’s also possible that it may be a negative – where there are issues or concerns which aren’t being communicated for whatever reason, or where the real worries are clouded.
Many legal teams have formal instruction routes, whether in person, by email, or through some form of legal ‘front-door’ or portal, and the law firms you use will also have formal arrangements. But how do you ensure that those routes are capturing the issues?
What is your internal client actually saying?
Often, requests for legal advice which you may receive fall into two broad categories: help to complete a transaction or to resolve a dispute, or advice on the legal position relating to a particular set of facts or issues.
You will want to know that you are being given enough facts to understand the position, and not simply something that is felt to be enough to move a transaction or dispute along. You will also want to understand how the facts fit into the corporate policies and processes of your organisation, as well as the legal, regulatory and compliance frameworks.
There are some indicators to consider in determining whether to probe further:
- Is there anything unusual about the matter?
- Is the matter non-routine?
- Is there an unusual degree of urgency?
- Do your instructions come through an unusual route – or to the ‘wrong’ in-house lawyer – by-passing the usual arrangements?
- Is it outside your/your team’s usual specialist areas of knowledge?
- Are you or your team coming under undue pressure to give particular advice?
- Are there any other red flags – issues around ethics, professional duties, or compliance?
What do they think you know?
A useful starting point is to consider what your in-house client might think you know already – and that they don’t need to tell you. This is particularly important if you are new to the client or the organisation – or if the person who is instructing you is also new or has moved from a different part of the organisation. Those expectations might include:
- What deals have been made with the customer or counterparty in the past? Is it assumed they are repeated?
- What expectations there are about timing, contract terms, pricing, payment etc? Are you using a standard format but the client expects something bespoke?
- An assumption that the way something is done in one part of the organisation is replicated elsewhere. It may be, but often it isn’t.
- How a particular dispute fits into the organisation’s dispute resolution strategies.
- Using a particular law firm to carry out work which they have done in the past.
- Understanding the basics of the commercial or technical offering of your business.
- Even something as simple as understanding the acronyms or commercial shorthand in use in your organisation – are you speaking the same language?
How can you get up to speed?
Use your legal community
You might want to consider how you can use your legal community to ensure that anyone who works for a particular client has the same information - allowing its members to know and understand what is going on, what resources are available to them, and how they can help. There are several tools you may want to consider in helping to build the community, and you can find more information in the CLL article The Benefits of a Legal Community
Build and test a common understanding
You can use meetings to bring your legal and client communities together to discuss issues and build a common understanding. You can ensure everyone has access to the same technology, sector and corporate news and social media, and perhaps create a resource hub to capture the knowledge the legal team holds and form the basis for a knowledge management strategy.
Filling the gaps
One of the privileges of working in-house is that you have an opportunity to understand your organisation, the context in which it operates, the issues and pressures to which it is subject – as well as the personalities, foibles and cultural norms.
Formal routes
There are many formal routes through which you can gain a perspective. These might include the organisation’s strategic planning and procedures, your involvement in operational planning meetings, awaydays, workshops and the like, and your day-to-day engagement with the organisation and your colleagues. If you organise your legal work so that particular lawyers work with individual clients in a business partnering arrangement, they may well be familiar with what is proposed and what is and isn’t usual.
Understanding the strategy
You may also like to think about how you can better understand your client team’s strategy for the future – what do they want to do, how does it differ from previous arrangements, and does it present new or different risks, for example? What is your organisation saying to its staff and the outside world through corporate communications and its external social media? If you can engage early, not only will you be able to understand what is proposed, but to influence how it is implemented – and engineer out any legal issues early.
What is going on in the sector?
Working in-house, you will also understand what is going on in the sector – is it particularly competitive, are sector players adopting particular strategies which your organisation might follow, and are there particular technological or regulatory trends which affect you? You can find out about all these and more through industry links – is there a group for lawyers in your sector, for example – or through reading the trade press and checking online information?
Your clients will also appreciate that they are speaking to someone who understands the nuances of the sector – and speaks the same language – and this can not only mean that you fill the gaps, but that you can advise more effectively and quickly.
Using the grapevine
As well as these formal routes, more informal options are also invaluable. These can include your contacts inside and outside the organisation, other members of the legal and other professional teams, and of course the organisational grapevine. Like it or not every organisation has an informal communication route that you hear from others – which may help you to fill the gaps. You may like to think that formal communication routes are the answer, but sometimes what is being said informally can be enlightening.
And who is the in-house client?
Who’s who?
Within complex organisational structures, there can sometimes be confusion about the identity of the in-house client. You may well have formal procedures in place to indicate who can instruct you as a lawyer – and how those instructions are to be delivered. Remember, though, that the client is in fact always the organisation as a whole – not necessarily the person who is instructing you.
That is particularly important if it seems that the instructions you receive do not appear to be in the interests of the organisation as a whole, or in compliance with the legal obligations of the person concerned.
Schemes of delegation
There may also be a formal scheme of delegation in place indicating who can do what, who can authorise a particular transaction, for example, and how the separation of operational and approval functions is achieved.
If your client is suggesting they can instruct you on a matter and then sign it off, is that following the organisation’s policies? Do understand what your scheme of delegation and approval procedures say. Strictly, it may not be your role to ensure that the right approvals have been obtained, but you will almost certainly wish to be able to do so. Your team may even have an authorisation form to go with instructions so that you can be clear that what is proposed is signed off.
If in doubt, ask. Many larger organisations will have formal arrangements in place for the legal team to question instructions through management routes, but even if yours doesn’t, you should never be unwilling to ask the question – whether through your line management or if necessary, through whistle-blowing or other routes.
If you worry that the gaps aren’t filled – or that the answer isn’t satisfactory – then do feel that you can ask until they are.
But what are the risks?
Rubber-stamping
While it may be rare, it is not unknown for internal clients – particularly those unfamiliar with your internal legal team – to look for reassurance on limited facts so that they can note that ‘legal has approved it.’ It is also possible that they may be seeking to conclude a transaction to meet targets without fully considering the issues. Sadly, in extreme cases, it can also be possible that the internal client is pursuing an agenda of their own or one which does not recognise key risks.
Ethics, regulation, integrity and beyond
So, in addition to the purely legal issues, you will want to be aware to whether the request presents ethical as well as regulatory or compliance issues. Could it be fraudulent? Does it simply feel wrong?
Undue influence
Does it seem that your contact is under undue pressure from their managers to do something out of the ordinary, or with which they are uncomfortable? Does what is proposed feel wrong to you – even if you can’t immediately put your finger on what worries you? Does the proposal involve another organisation – or a competitor – which may present competition or trading issues? Is it only part of a broader set of issues or in return for another deal – and if so, is it properly considered and authorised?
And if you’re uncomfortable…
Remember that one of the key skills of an in-house lawyer is to understand what is proposed and why, and not just to implement the technical transaction which is requested. That’s not, of course, to suggest that the role is to be difficult for the sake of it, or necessarily to substitute your view of a corporate transaction for that of your client, but to maintain an appropriate degree of professionalism and distance – scepticism even – to ensure that what is delivered is what should be delivered. It may even be that your client feels you are being difficult – and your professionalism and relationships can help to ease any such concerns – but you do need to be able to fill in the gaps to ensure you are professionally comfortable with what is proposed.
Conscience of the company
It used to be said that the in-house lawyer was the ‘conscience of the company’. Whilst legal ethics have evolved, the maxim is still a good one and it is helpful to consider whether what is being asked of you is actually what the organisation wants, whether you would be happy that it, and your advice, could be aired in a public forum, and – crucially – whether you are clear that it accords with your professional obligations as a lawyer.
As a legal team, you might well want to have a formal process to make clear to colleagues what they should do in such circumstances – and to air it through training or professional development channels.
What to do if you're worried...
In many cases, reading between the lines is a matter of experience and professionalism, where you are using your skills and expertise to help your client organisation achieve its objectives effectively.
If you are worried, though, that something is wrong, you must act on that. In most cases, this may well simply be a matter of discussing it with your line manager, whether legal or functional. If that doesn’t resolve things, though, do consider whether you should be raising the issue through the organisation’s whistle blowing processes or even through your professional channels.