Unlike most litigators, who are asked to defend specific allegations raised within the bounds of a particular lawsuit or claim, general counsel (whether external or internal) must look beyond a single case and provide a larger strategy to help guide their client over the years. This often requires giving advice that helps the client avoid future litigation but which frustrate internal stakeholders who see the advice of impeding their own goals. While a good general counsel may give the advice to the decision makers and leave it up to the company to decide whether to follow it, a great general counsel takes the further step of understanding these stakeholder’s needs and explaining how their advice supports those needs.
The first step a general counsel should take is understanding what the stakeholders’ needs are. These may include the following:
- Salespersons may not want to revise their sales pitches and use language that a lawyer believes minimizes later criticism, and may worry about spooking clients by changing their messaging
- Teams may resist changing policies, programs, and practices that they find burdensome or unnecessary, but that an attorney believes is necessary to ensure that appropriate records are kept
- Different departments may have different views of the need to make certain changes to business operations, or the practical challenges of implementing them
- Some department leaders may have friendships or rivalries with their peers that influence their response to legal advice, separate and apart from whether they agree or disagree with the advice
- Different leaders have different levels of short and long term aversion to risk
Responding to these concerns and ensuring that your legal counsel is considered and implemented requires understanding and responding to these concerns. At the outside, all attorneys should be aware of and avoid the perception that there are the “Department of No,” whose purpose is to tell the revenue-generating departments that they can’t do something. It is often helpful to face this perception head on by telling internal stakeholders that your job is not to tell them no, and instead that your job is to explain risk exposure and help find solutions to decrease such risks. One can then segue into requesting their assistance in identifying the pain points of your proposals and how to address the same. For example, if a department head is concerned about implementing your advice that her sales team cannot promise certain results, you can discuss implementing different language that she feels will be effective and which you believe will decrease the risk exposure. While the sales language you agree upon may not be ideal and may still expose the company to some risk, the risk may be lower (and in any event is better than the department head ignoring your advice as impractical).
Separately, external counsel should be aware that the company’s leaders may not be aware of where your advice comes from. The company’s President, Board of Directors, or CEO may instruct you to speak with department heads and Vice Presidents about implementing your advice, but it may not be clear to the latter that your advice has already received approval from the very top. Given many non-attorneys’ distrust of our profession, it would be wise to acquire tangible proof of the executive’s support. Ideally they will be physically present at the meeting where you present your advice, but at minimum large change proposals should be prefaced and/or immediately followed by the executive voicing explicit support for your recommendations.
Finally, a good general counsel should understand the realities of operating a business. Businesses that succeed take risks, and it is often impossible to draft contracts, implement policies, and give advice that eliminates risk. Further, trying to eliminate risk of litigation or future disputes may be counterproductive. For example, a zealous advocate who pushes too hard on revisions to a contract may risk spoiling the other side’s appetite to do business with your client, which may leave you in the position of explaining why millions of dollars in additional revenue is no longer on the table. Your client should always have the last word on what risks and exposure they are willing to live with, and as an attorney it is necessary to live with the reality that not all of your advice will be accepted.