Our last blog dealt with top tips for relationship-building with the internal client. We now turn to the substantive side and the practice tips we’ve gleaned from our years advising the client from the inside.
1. Educate the client. An educated client that understands the hows and whys will have the tools to avoid making mistakes that jeopardize critical company assets or create liabilities. For instance, employees and management should understand how IP can be lost through too-early disclosure or how liability may arise from certain hiring practices or having certain discussions with competitors.
2. Drill into every employee who uses email the importance of email sanitization. Many lawsuits have been lost due to unfortunate statements in emails. They never go away. If the matter is potentially sensitive, pick up the phone.
3. Remember you have only one client - and it is the company. It is easy to become aligned with the CEO and his/her ambitions, but your duty is to the Board of Directors and the shareholders. Keep the company's interests in the forefront.
4. Don't rely exclusively on the merry-go-round of sending red-lined documents to negotiate agreements. More can often be accomplished in a one or two-hour conference call than several weeks of circulating marked drafts. Explaining your position in person or by phone can go a long way in helping to build commonality and achieving compromise.
5. Listen carefully, and ask lots of questions. Often the in-house attorney will be told just enough information to arrive at the conclusion the other person wants to hear. Digging deeper can shed light on more facts that can change the risk assessment on which your advice is based.
6. When negotiating contracts, anticipate things may not work out as planned, and address worst case outcomes where possible. There can be a tendency on the part of commercial deal makers to prefer ambiguity over raising sensitive issues at the "hand-holding" stage, and a preference to wait and work things out later. This mistake can lead to misunderstandings at a minimum and lawsuits when the stakes are high. It is easier to reach compromise before temperatures rise.
7. Maintain quality even in the face of a crushing workload. Most in-house counsel are quite busy and face tight deadlines. It is easy to prioritize quantity over quality. Remember no one will recall how quickly you prepared that draft joint venture agreement - but they will remember if you miss a key element of protection for the company.
8. Emphasize compliance. Develop a robust program, make sure the key policies and procedures are in place, and follow up. In the unhappy event your company becomes subject to a compliance investigation, having an effective program in place, and one that is actually implemented, can greatly reduce and possibly even avoid, sanctions and penalties.
9. Know the goals of every project. Knowing the goals will help you deliver the best product. If the business person asks for a full joint venture agreement prior to having an exploratory discussion with a third party, suggest that a simple CDA is a more efficient approach to achieve the goal. If the goal is simply to prevent competition from patenting an idea, perhaps just publishing the idea will suffice and a full patent application is overkill.
10. Don’t sign off on something just because you’re supposed to. If you see important unresolved issues or are uncomfortable with potential consequences, don’t sign off on the project. When those unresolved issues blow-up or the foreseen consequences do happen, your stamp of approval will come back to haunt you. Be firm in your convictions and you’ll be respected for it.