Operations will be focused on organisational goals, whether in commerce, the public or charitable sectors.
Often, the in-house legal team will be one of the smallest in the organisation. Some teams and their members can feel isolated – even overwhelmed – by the workload, but the non-legal resources of an organisation can present a real opportunity for the in-house lawyer.
There are perhaps two key areas in which those resources might be used – firstly, in helping the organisation to help itself by enabling non-legal colleagues to take on a certain amount of ‘legal’ work, and secondly by using the organisation’s own specialists to help the in-house legal team. In Part 1 of this two-part article, we look at how you can help the organisation to help itself, and then in Part 2, we look at how the organisation’s own specialists can help the in-house lawyer.
What should the in-house lawyers be doing?
Few, if any, in-house teams are resourced to allow them to provide one-to-one legal advice on every legal issue. Explicitly or implicitly, they will need to decide what work is done (and as importantly, isn’t done) by the legal team, how it is performed, and what the organisation should adopt as a legal strategy.
A good starting point is to say that the in-house lawyers should only be doing things which they are best placed to do in the organisation. That may not just be black-letter law – indeed it is unlikely to be, as it will include the understanding of issues in the organisation, the building of relationships and reputation, and the credibility which allows their advice to be best understood and applied.
It does mean, though, that the lawyers should think carefully before doing what can be done by others in the organisation, and certainly before doing things which aren’t strictly legal but which are often left to the lawyers because they happen to do it well. Should the lawyer be writing a letter or drafting a report, or simply contributing to it and reviewing it once it has been written by others, for example?
It may well be appropriate to consider what other resources are available to you to allow you to carry out your role more effectively, perhaps by delegation, systemisation, or automation – and by looking at how you can safely and effectively pass responsibility to your organisation to self-deliver or self-help.
What might others be doing – and how?
As part of that consideration, you may find that some elements of your work might best be done by other colleagues within the organisation, using for example:
- Training non-lawyers to understand core concepts and to help them identify issues and priorities;
- Operationalising law by developing checklists, process maps, and template documents;
- Understanding legal risk around their operations.
What specific examples might you consider?
Different organisations will, of course, have different risks, demands and priorities, but there may be a number of cases in which it is appropriate to have standard terms and conditions, some of which may be changed in particular (and well-defined) circumstances. The key is perhaps to ensure what those circumstances are, who has authority to allow a change, and what needs to be done to record and report on those changes. In many cases, the organisation may be using professionals in their sphere whose training and development includes at least some training in the legal aspects relevant to their work, and you can use that to your and the organisation’s advantage.
Some of the core areas which you might consider are as follows. In some cases, you may well find that non-legal colleagues in the organisation can self-deliver work; in others, you might consider an alternative legal provider who can run a playbook of options for the organisation.
- Sales Contracts. Most commercial organisations will sell goods or services on standard terms – or more accurately often on a suite of standard terms. Some organisations will be able to sell all (or almost all) of their products or services on standard terms. Others, though, will not, either because of the commercial relationship with a counterparty, or the complexity or value of the products or services being sold, or the inequality in the bargaining position of the parties.
The key here is to ensure that the basic set of terms is satisfactory – which is a job for the lawyers in collaboration with the sales and business teams – but that it is completely clear when a sales team can deviate from the terms, how, and to what extent. You might consider having a template with a set of alternative provisions for use in particular cases, as well as clarity on who is authorised to use them and in what circumstances, and what authorisation and reporting is required.
- Procurement and Supply Contracts. Again, many organisations will have a standard document or set of documents, but in other cases it is vital to ensure that the terms on which an organisation buys products or services maps carefully to the way they will be used, and that the teams within the organisation responsible for procurement and supply chain understand that and adapt contracts accordingly – or perhaps seek help from the lawyers in complex cases.
It can be very helpful to develop a playbook with the procurement team so it is clear what can be used in what circumstances – and why. The terms and conditions used for buying something may need to be very different depending on its use. If it’s a critical part of the product you are on-selling, or if it is a service such as a design which determines the achievability of contractual design parameters, naturally you will need much more complex terms and conditions than for the purchase of simple items which are used in the organisation’s day-to-day business.
- Property Issues. Are there standard minor property issues for which standard documents might be appropriate and which can be used by colleagues within the organisation – for example, if a retailer allows franchisees to occupy floorspace in a store?
- NDAs. Non-disclosure agreements have been subject to criticism in recent times as a result of inappropriate use, but there are many instances where they are appropriate to protect commercial interests. With a standard format and clear guidance on the limits of their use, they can sensibly be used – for example by Mergers and Acquisitions teams involved in the acquisition or disposal of businesses from a group.
- Technology. Most organisations will be buying and using technology – hardware, software, and increasingly software-as-a-service – much of which is sold on increasingly lengthy and complex terms and conditions. It is important to understand the implications of the contract – and also the extent to which any variations are possible. A set of guidelines, checklists and explanatory notes agreed with the IT team (together perhaps with criteria which might include the value of the transaction and the length of the contract) can be very helpful in ensuring that key contracts reach the legal team, those which don’t need legal input don’t, and that the practical implications are properly considered and are taken into account.
- Employment Issues. As with a number of these areas, typically the organisation’s professional HR staff will already have training and understanding in areas of employment law. They will also be well-used to using standard letters, forms and employment contracts, so it is a natural extension that they also have agreed templates to deal with more difficult employment issues. Again, this is a sensible and helpful development, provided that the limits are clear and it is understood when they should seek advice and assistance from the lawyers.
On the flip side, it can be the case that lawyers are used where they are not the best people to carry out a particular task. It may be helpful for a lawyer to draw up a letter in an employment matter, or to draft a file note – but often the HR professional on the case is more than capable of doing so taking into account particular points of legal advice given by the legal team, or with a final review by the lawyers.
What are the benefits?
Allowing the organisation to do what it can properly and safely do itself, with appropriate documentation, training and supervision, is helpful to manage the volume and cost of legal work required, and the workload of the in-house legal resource. It also has the advantage of integrating the legal team with colleagues by building closer and more effective relationships. It’s important to realise, though, that it can also manage and reduce legal risk by ensuring that colleagues within the business can identify problems and understand their implications, and also upskill those colleagues to the benefit of the organisation as a whole.
Some further reading:
Using the Organisation’s Resources – Part 2 – Using the Organisation’s Own Specialists
The Legaltech Book Bhatti, Chishti, Datoo, Indjic (Wiley, 2020)
How Innovation Works Matt Ridley (4th Estate, 2020)