Legal Briefing

Workplace law: Doyle Clayton

The In-House Lawyer Logo

Legal Services | 10 July 2018

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Nie mój cyrk

The Polish have a somewhat colourful way of saying that something is not their problem – ‘not my circus, not my monkey’. Leaving private practice may well feel like you have escaped a zoo, but after a few days of taking over as in-house counsel it becomes increasingly clear that it is in fact your circus now and yes, you may well be that monkey!

gorilla-ceo

Of course, the move across the divide is not without allure. Out of the window goes much-loathed time recording and billing, and as for business development? Well it can now have sand kicked in its face. You will only have one client (or so you thought), will have time to really focus (or so you thought) and will be able to bring in outside counsel whenever needed (or so you thought). And those are only the upsides. Soon you will come to appreciate that you are in a role without end. Unless you are in a very small and static business you, and your team if you have one, are the crew pitching and holding up the tent. Constantly amending, shaping and managing you will seldom be the ringmaster but will often be behind the scenes, very much a part of keeping the acts on time and safe. Meanwhile at the front of house, the sales team perform cabaret, juggling their sales figures, bonus plans and long-term incentive plans as the commercial team attempt to streamline the business without a safety net. On the ground HR fall over each other hilariously as they try to keep pace with absolutely no information at all. And there, in the darkness, sit the shareholders; are they gasping in wonder or looking away in terror?

 

Yes, handled badly and reactively, being in-house can easily become the ‘Greatest Show on Earth’ and even with Hugh Jackman in charge that wasn’t so great. But despair not. Properly designed, defined and organised it can be one of the most fulfilling and enjoyable roles in the legal cinematic universe (okay, enough with the weak allegories). Like you, I once crossed the great divide (except that one) and between 1993 and 1997 worked in-house as what was then known as a group company secretary within the Travelex group of companies. As an employment lawyer I was perhaps a strange choice for a role that was at times exhilarating and exhausting in equal measure. Although I returned to private practice when I set up Doyle Clayton with my good friend Mr Doyle, it is a period of time I wouldn’t have been without and in many ways it has been a cornerstone of my own practice. To work so closely with a true entrepreneur, to see a hungry commercial team in action and to begin to appreciate what a business really needs from its legal advice is an important lesson for a lawyer and, although we must never tell them, it can even be a privilege.

So having seen the other side and made it back alive, what advice can I give my fellow lawyers as they seek to survive their own in-house experience? Perhaps I’m a little rusty, but having been there and back again I have a particular view and have given some thought to my top ten tips. Roll up, roll up (sorry):

1. Define and clarify your role

If you are taking over an existing position you may feel this is not for you but it is for everyone. Being in-house is potentially a never-ending role and if you have no clear vision of your domain you will find it expands at an alarming rate. Everyone will be keen to have your sign off; some legitimately and some to pass on the blame and it is crucial to make it clear what your role and duties are. Ideally this should be done before accepting the role when you establish whether you will be inside or outside the executive team. Will you be there to advise the leaders or to simply draft documentation for the whole team? If you are taking over an existing role, don’t be complacent. You will need to set expectations – theirs and your own. You can’t do it all. The person before you may have gotten this entirely wrong, in which case the need to set down and understand what is expected of you will be doubly important. As will number two!

2. Tame the beasts

At the beginning of the TV series Life on Mars, the fictional DCI Gene Hunt visits the injured Sam in hospital. To greet him he simply says this: ‘Don’t ever waltz into my kingdom, playing king of the jungle.’ If you are the first lawyer in the business this reaction, especially from members of the executive team, is natural. To them you have been brought in to check up on them and regulate them. Many have seldom seen a lawyer outside captivity and may conjure up either scenes of arrogance from TV or a vision of their last conveyancing lawyer slowing down a simple process over a long lunch. This they call ‘sales prevention’ behind your back. If you are a replacement, things could be worse as they take the opportunity to set out new boundaries of their own while the new teacher is in town. People do not like to be regulated or constrained, especially sales or creative types. It is, however, your job, and while you must always remember tip ten (no cheating now) you will need to calmly set out your own boundaries from day one and resist the temptation to let them set the agenda. Having a clear vision of your role and knowing whom you serve will help greatly. As you are at the outset is how they will treat you. Be clear, be firm and be sensible. Stand tall. You are unlikely to be welcome on arrival. Don’t expect to be.

3. Understand what they do

As external counsel you will have been adept at picking things up quickly and juggling work simultaneously from a raft of clients. One week you know ‘all about’ a manufacturing process and the next you’re ‘an expert’ in international insurance – but it’s always just enough to allow you to complete the task at hand or win the case. Like an actor, once you put the épée away and unbutton your breeches, you have moved on to another period drama and attempted a spot of light scything. In-house this simply won’t do. You are now immersed in it. It is your circus too and you need to gain real expertise if you are to get real respect. This is not a hardship – it is part of the fun. It will also help you not only to acquit or supervise any legal work required but also to tame the beasts that are senior management. Secretly they respect your legal expertise. Openly they will respect your ability to actually understand what they and the business does. Ultimately, it is the only way you can excel in your new role. Invest some time in it.

4. Delegate

This doesn’t take much explaining but it does takes a lot of doing. Lawyers are (in)famous for believing it is easier to do it themselves than pass a piece of work on. But in-house this just won’t rub. The tasks seem infinite. You are trying to protect an organisation that may already be decades old. Are you really going to look under every rock? Personally? If you have a team, take time training them, upskill them and then give them room to run. They may be slower than you now but once they engage the machine will give you much more time to think, supervise and frankly do your job. If you don’t have a team then consider training and using your business’ managers. Train them and have them cascade what they learn down the ranks. Teach them to understand what’s important and what they really need to bother you with. If the job is impossible ask for, or even demand, help. But remember tip ten.

5. Select external counsel wisely

At the risk of shamelessly adopting a ‘vote for me’ approach, the choice of external help can be central to your road to greatness. Of course you will be under pressure, particularly financially, not to use them at all but when you do, you need to get it right. Experienced advisers can be a great asset but they may not always be the right partners. It is all too easy to adopt the law firms used by a predecessor without thought. If there is a large enough budget why not continue that relationship with a mega-firm and feel the surge as you enter a reception area large enough to hangar a space craft? No-one got fired for buying IBM right? Well, you could well start there and although your bribery and corruption policy may prevent you accepting that trip to Cannes you could even get the kind of advice you need. But you may not and if you do, at what price? As you navigate the maze you will need to work with people you trust, who deliver and who really are expert in your area. When I was in-house, I moved the company away from a massive law firm that tended to drop us when a larger deal came along. In one conversation they even said that the other company’s business was more important than ours. That cannot fly. Equally you do not need to use the same firm for everything. They may offer you loss leaders – but are they really any good? When your CEO is in an employment tribunal being defended by the cast of Fraggle Rock, how will that make you feel? There are experts out there. Consider them. Mix it up a little. Put the niche firms alongside the larger ones and get the best support you can. It may even help with tip six. In the language of GDPR, it is not B2B. It is H2H. Human to human.

You can see the role as a struggle to keep a ship on course or you can see it as the opportunity to create harmony across teams. To make things work better. To bridge gaps between people. To make sure things work properly. To meet the true need of the business.

6. Fight for your budget

‘Fight for it’, you say, ‘I don’t even have one.’ Well that’s not uncommon. It’s a classic way for the commercial people to control expenditure and of course it has the allure that you won’t be limited. Don’t be fooled. Find out what last year’s spend was. Consider what large projects are on the horizon. Audit the law firms you use. Do they deliver? Are they too large? Can you use a niche firm better? Can you downsize some of the firms or the work? You can of course consider pushing your advisers for fixed fees. Indeed, even the humble retainer has made an entrance again stage left. But do check where that takes you. Cost is important but if you are receiving poor advice you will make poor decisions. Firms of course price their retainers/deals carefully and you need to ask whether that blended rate is really good value. Will you ever see the partner again or will you really be getting the ship’s cat? Equally, consider whether procurement is really a good idea. They will make you look good by getting a cheaper price but they can then make you look very, very bad by lumbering you with poor advisers. I’ve often been asked by procurement why we charge more for a 20-year qualified partner than an NQ. You do the maths. Work out what you want and what you need. Then fight for the budget you require to deliver it. That will make you look better in the long run than barnstorming your way to a cost saving that will be all too soon forgotten.

7. Know the pecking order

Simple one. All of the stakeholders will want a piece of you. Know who you are really responsible to, know the business and you will know the order in which you need to work. At one time I was so bombarded with emails that asked me to let the sender know if I had any comments that I had to send a global one out to reverse this. ‘Unless I have commented you should assume I have not read it. Do not assume approval.’ Whatever Thomas More said, silence cannot denote consent. You can’t do everything. Don’t try.

8. Create harmony

An odd one I hear you say. Well perhaps so but consider this. You are in a central function. You will rub shoulders with the executive team of course but also members of the rank and file. They will be your witnesses, your sources of information and your guides. You will get to cross through reporting lines and to an extent have the luxury of being objective. Before the ‘king’ you may even be in the unique position of the jester, the one who gets to tell the king the truth – albeit in legal rhyme. From this vantage point, a position of wisdom, you can best consider your role. You can see it as a struggle to keep a ship on course or you can see it as the opportunity to create harmony across teams. To make things work better. To bridge gaps between people. To make sure things work properly. To meet the true need of the business – to sell its product, work well and develop for the good of all.

9. Be authentic

Your role, utility, authority and any power you have derive from being a lawyer. Be one.

10. Be nice

Above all be nice. Define your role and fight for your budget by all means. Hold your ground and do all of those other things we have talked about. You will be under pressure, you will be criticised and you may incur the wrath of those who do not get what they want. But all this time, as you do your job well and properly, you should never take the bait or you will lose. You are in a special, privileged and unique position. It is one that others cannot fully comprehend. If you become angry, sarcastic or patronising you will always lose something. Some who you need to help will circumvent you. Some who need your help and never get it will fail. Others will undermine you. You cannot always have time for everyone at the drop of a hat but you can find a way to organise things, prioritise and schedule in time wherever possible. If I may quote Patrick Swayze in the partly excellent film Road House: ‘If someone gets in your face and calls you a ________, be nice. Ask him to walk, be nice. I want you to remember that it’s a job. It’s nothing personal.’

I’m not saying I did or achieved all of these. Far from it. It’s precisely because I didn’t that I have a view on what I would try to do next time – fuelled by the success of my successor in doing so. They are all difficult but they are not insurmountable. I hope they are helpful. You may remain the monkey but who knows, maybe your circus might really become the Greatest Show on Earth after all.

Senior partner Darren Clayton is Doyle Clayton’s head of employment law. He can be contacted at dclayton@doyleclayton.co.uk or on +44 (0)20 3696 7171.