The In-House Counsel: Ours is to Resolve Dispute not Compile Cases

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Legal departments have a legacy of being naysayers, deal-stoppers and those folks with poor business acumen.

It is common place to find people in the other departments in an establishment complain about how the legal department foot drag and delay the progress of their transactions. This is because for all well-structured organization, every document that would bind them legally must pass through the legal department and for every in house counsel who understands his duty in an organization, they are not always in a hurry to give a go ahead for such things as; agreements, non-disclosures, letters of indemnity, bank facility offers etc without being double sure of the intendment of every clause.

For as long as the in-house counsel understands that he is in the organization to protect the interest of the organization and shield it from as much liabilities as possible, the impression of the other departments may never change. This is however not to say that the legal department or the in-house counsel has the licence to delay transactions.  The job of an in-house counsel is definitely not to compile cases for external solicitors, he serves as a shield and protector of the establishment and ensures that liabilities are never incurred in legally binding relationships with third parties.

As in-house counsel the following are sacrosanct

Reviews

Depending on the size of the establishment, the in-house counsel is a reviewer of documents, correspondences, agreements (contractual, non-disclosures, non-compete, confidentiality and so on). To effectively achieve this, the in-house counsel must have indicators to look out for in any document. You must be familiar with the standard clauses in an agreement. Letters must be clearly analyzed and responded to. Companies have as a result of in house counsel’s slip incurred liabilities that threatened the very existence of the company. You would not want to be the reason why any anti-graft agency would visit the company or invite the CEO for questioning.

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Mediations

There are several issues that require the expert intervening skill of lawyers. An in-house counsel who is not able to distinguish between issues that should be resolved with little or no commitment from the establishment would be a disaster for the company. Apart from the issues that would come from third parties, within the establishment, there would arise situations where all that is needed is a mediation skill. There is absolutely no reason why the in-house counsel should not intervene to arrest a situation even at the risk of having the company path with little token. A situation where an in-house counsel thinks more of sending every issue that arises to court would certainly make the company move towards spending so much at prosecuting and defending cases. It is important for an in-house counsel to remember always that no establishment enjoys time in court even if they are the ones aggrieved.

Legal Opinions

This is one of the saving tools for an in house counsel. If you do not have the skill to present a well-researched, well-structured, and well documented legal opinions, chances are that you would create more problems for the company and yourself. Legal opinion give the company clear view of issues and their legal implications or consequences.

There is nothing wrong in politely seeking to research further before responding to an issue of law, especially when the lawyer is required to think on his or her feet. It is often better to ask for a short time than give a wrong legal opinion.

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Legal/Commercial Risk analysis

Sometimes commercial decisions that require taking risks would most definitely fall on the in-house counsel’s desk. These are “must take risks”. These types of risk are deliberately taken by companies knowing full well that they have implications. Companies rely on harnessing the bigger benefit that would come with taking the risk. This is about the most delicate job of an in house counsel.  Everyone including the CEO would like to know how much legal exposure and liability there is to the transaction. It goes beyond all the technical persons to what the court would decide in the apparent event of suing for a deliberate risk. In house counsel finds himself analyzing to the extent of how much damages the judge would likely consider appropriate. It is therefore essential for an in-house counsel to be on top of his game and have an in-depth legal/commercial risk analysis skills.

No matter what you do, do not make yourself a compilation tool for external solicitors.

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