Ten tips to help you get your legal advice accepted
The way you provide legal advice as an in-house lawyer will depend on the situation and who is asking. It may be necessary to provide written advice detailing the options, risks, and issues.
Your advice may be more informal, usually via email or verbally. Your advice will usually address the legal aspects, but it will also often cover practical solutions to the issue in light of the applicable legal risks.
Your primary role as an In-House Lawyer is to provide legal advice. It is important that you are heard, understood, and acted upon. How can you make sure this happens?
Listen first, then ask questions
Although it may seem tempting to jump in and fix an issue or provide a solution as soon as possible, this might not be the best approach. It is important to understand the context of the issue within your organisation. Although you might be able to clearly see the legal issues, they are often only one aspect of a larger organisational issue. You will need to understand the root cause.
Sometimes, the client may limit your request to specific legal points or points that really matter. However, context is important and can affect your advice.
You will need to use your judgement because you don’t want to get overwhelmed by too much information about a simple point. Understanding your organization, the decision-making process and the key decision-makers is crucial to understanding the root of the issues.
Advice from a position where you are strong
It is important that you are trusted by your clients. Although it may be easier to know you if you work in a small organization or with a small team, it is still important to be visible. Despite the fact that it can be difficult to leave the office due to the volume of work, it is a good idea to meet up with your colleagues occasionally to learn more about the organization and its people.
Trust is more difficult. Trust is more difficult than visibility. Credibility and respect are what create trust. Credibility can be built by doing a good job and demonstrating respect for others. Don’t make promises and fail to deliver. Be honest, follow the law, and act with integrity. These things aren’t always easy, but they are crucial to your success in your job.
Although you don’t have to be aware of every legal issue within the organization, it is important that you are involved in planning and activities that could lead to legal problems. It is possible that other people may not be aware of the importance of these issues and it may save you time and money.
It is difficult to get involved early. Others might not see the value you bring or be concerned that you will block their plans. It is better to have processes in place that allow legal to review specific business actions at a certain stage, rather than relying on random referrals later in the day. It is also helpful if there have been previous audits of legal risks and checks, balances, and processes in place to manage them (perhaps as a response to a crisis). It is important to show clients that you are involved at the best stage, not too late. Pausing or changing course can be costly and difficult. This can be achieved by gaining a thorough understanding of the work of your clients and showing a proactive, can do attitude.
It can be difficult to provide advice on complicated legal issues that addresses the business issues at hand. Your clients won’t be interested in the law as much as how it affects what they do. It is important to not just state the legal situation and leave it up to the clients to decide the consequences. This means that you should not tell your clients what to do.
Communication clearly means communicating in everyday business language and avoiding legalese. When you are giving advice in writing, begin with the problem and the solution (often more than one). It should be brief and, if needed, include headings and executive summaries. Your legal reasoning should be left to the follow-up request or an annex.
When you are giving advice verbally, consider how you will present it. If you know that you will need to give advice at a meeting, you should focus only on the important issues and consider the follow-up questions. You will always be asked “What if” or “What about” questions. Make sure you are able to deal with them beyond the first few levels. Your first sentence should be planned and what impression you want to leave on your audience. You should say as little as possible, but not as much.
Do not try to wing it
As you might be asked a difficult question, it is possible that you don’t have the time or patience to prepare. You don’t have to know the answer if you do not want to, but it’s a good idea to mark that as an improvement point, but don’t try to guess the answer. You can lose your credibility and trust quicker than making a mistake. Don’t assume you know the answer, but be sure to follow-up quickly and accurately.
However, you should not be forced to see the plans or activity that is being discussed. You may need more time to consider the issue, but you will also need to give an early legal guide on whether the activity can continue or be stopped. This is because you don’t want to leave things up in the air. It can be difficult to do this if you are in a meeting. Do not be ashamed if you are unable to provide a polished, complete answer. Instead, try to deal with the issue in the best way you can. You might say that, “Based on your initial views, I believe x, but it is worth considering the implications if we make a mistake.” Let me now take it away and return to you by y.”
This is where credibility is important. You will need to be able to think critically and avoid giving an immediate answer when it isn’t sensible. You will earn more respect if you are accurate and thoughtful rather than being quick but wrong.
Do your homework
Lawyers are expected to be meticulous. Even if you don’t want to hear every word, your colleagues will expect you to know the law. You must be current and know the law. If you don’t know the law, you won’t have any credibility or influence. You will also be expected to have a thorough understanding of the organization’s workings. What are the key tasks of other departments? What are the organisation’s financial markets, financial performance, and results? What are its priorities and threats to success? What are the decisions made? Who makes them? This means that you must be fully involved in your business, even if it is not in your specialty. You cannot adopt a “we only handle the law” approach. It is important to be curious and informed.
Don’t patronize or preach.
A tendency to preach or patronize is one of the biggest reasons your colleagues may not like you as a lawyer. This is a common trap that you can fall into, especially when you have to deal with the mistakes and omissions of others. They won’t respond to an attitude that implies that they are stupid and that they have all the answers. This attitude could lead to colleagues not wanting to consult you, which can have devastating consequences. It is important to be more open-minded and helpful. People want your help to solve a problem or get something done, not a lesson about how they got there. While it’s okay to suggest ways to avoid future problems, you should be careful if you are dealing with their expertise. How would you respond to a colleague offering advice about how to run your legal department?
Your tone, demeanor, and choice of language are all important when dealing with others. This is especially true when you are trying to resolve a difficult issue.
Peer reviews and draft advice
You may be asked to advise on critical issues. It is a good idea to get your draft advice through your line manager or another senior member of the department. Even if you’re not the senior lawyer, this can be very helpful. Although you may need to provide more legal detail or arguments than what you will be passing on to the client, it is a great way to get your thoughts in order and ensure that you have covered all relevant points. The GC or a senior attorney may need you to inform them about a matter they need to discuss at a meeting of the board or committee. This is a great way to learn how to write advice that focuses only on the most important issues and strikes the right balance between law and the impact it has on the organization. Your legal colleagues can help you practice how you will present your analysis at meetings where you are likely to be asked difficult questions.
You might also consider whether draft advice can be used to clarify matters with clients, such as asking if you have addressed the problem and if it has all the pertinent issues.
Working closely with colleagues allows you to quickly get to know what their thoughts are about what you’re saying. While facts are established and issues clarified, there may be some toing-and-froing. You will not always be right, and that is part about being an in-house attorney. Sometimes you or someone on your team may make a mistake or get it wrong. This shouldn’t be a reason to lose heart. It’s not realistic to expect perfection. Second, admit to making mistakes quickly and try to correct them where possible. If you are able to bounce back, try taking a quick win, such as by surpassing your expectations. Fourth, stress levels can be higher in times of rapid change or crisis. It is important to consider this. You will learn more about how you respond to difficult situations. You will be able to better manage pressure and handle difficult situations the next time they arise. Don’t give up. There are no rewards for persevering regardless. Ask for support and help from others. Resilience is something that can be learned, even when things seem to be going well.
Push back: How to deal
Sometimes, your advice and assistance will not be received without questions. Some clients might be vocal about challenging what you are telling them. This is not a reason to be intimidated or convinced. They may be correct sometimes, or rightly point out things you didn’t know about. Accept this graciously and use it as a learning opportunity. If the dispute centers on the law, and you are certain that you’re right and some legal (and possibly ethical) risks have been overlooked or downgraded by others, you must stand your ground. This means being calm and measured, and clearly pointing out any consequences of your advice being ignored. You cannot control the actions of others, but the effort you put into building trust and credibility should help others realize that you wouldn’t advise strongly against or for a position without good reasons.
These types of situations require a solid escalation strategy that includes the GC, other senior legal leaders, and senior management, and ultimately the board. Although the exact process might differ, the point is that it is important to not ignore or overlook legal advice regarding key issues and risks. Instead, the advice must be reviewed at the highest level in order to protect the organisation’s interests.