New Zealand Law Society - Responsible Briefing: How in-house counsel can be model clients

Responsible Briefing: How in-house counsel can be model clients

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Last year, the In-House Lawyers Association of New Zealand (ILANZ) set out a new strategy. We had a new executive manager, a new cohort on the committee and were aware that we are all edging into a new era of how to practise law. Our aim is to connect, support and lead in-house practice. In this article, we reflect on how the in-house community can play a vital role in supporting our private practice colleagues by applying a responsible approach when briefing them.

In-house is a unique client type in that we are lawyers ourselves. So rather than being a client at arm’s length, we are in fact instructing others within our legal community. We have considered lately at ILANZ that we can meet both the needs of our employer while at the same time we can facilitate the adoption or continuation of good practices from our external counsel. This means we are well placed to support our private practice colleagues in the way in which we instruct or brief work to them.

The ILANZ committee members put our heads together to share some approaches we apply to lead the way in this space.

1. Get to know your external counsel

It is simple: knowing the people you are working with externally as well as internally means you’ll work better as a team to deliver the services you and your employer need.

The committee shares its views on what you need to know and why:

Knowing the seniority level, skill set and what resource is available to you from your solicitors is imperative. This enables open and honest discussions about the seniority required for a task and enables you to select the solicitor who will best deliver the work you need. This could be a junior, a partner or a non-legal support person. This enables your external provider to allocate the work efficiently too.

Respecting the human side of your solicitor aids a culture shift. Our external counsel have homes to go to, commitments to meet or hobbies they enjoy. These can be respected and excellent quality work can still be obtained.

For example, your preferred solicitor may not work on a Wednesday. It makes sense to instruct that solicitor in a timely manner on a Monday morning so they can work on your matter that day and the following day. Acknowledging that a service industry such as law can still deliver excellent work in part-time hours may mean you have to work around this a little. However, a subtle shift of your own approach to instructions can encourage more firms to adopt and protect part-time hours.

You may work flexibly and issue your emails of instruction at late or very early hours of the day. A responsible approach could be to let your solicitor know this is how you work but is not how you may expect them to work. Another suggestion is to apply a delay to the email transmission to delay sending it until the start of the next working day.

Knowing if the values of your external counsel match those of you and your employer can drive better behaviour in the wider profession. A common perception is that in-house lawyers can achieve a better harmony between paid work and other commitments compared to our private practice colleagues. This could be because there are no financial drivers or targets to meet. It could also be due to an acceptance that we have places to be other than work and that we are better lawyers for leaving work behind at reasonable times of the day. Actively encouraging your external solicitors to set and show that healthy parameters exist around working hours is an approach some ILANZ committee members take.

2. Spend time on instructions

Crafting a clear set of instructions is time well spent, says our committee. It delivers value for you as a client but also offers your solicitors a clear pathway to meeting our and their needs.

Some hints and tips from the committee on what ‘responsible instructions’ look like are:

Before instructing, think about what you require and gather together the relevant information and documents. Frame up your instructions into a clear, structured email.

Set out any background including a summary of facts.

Note the legal issues and concerns as you have observed them but invite any alternative views if required.

Explain what the business objective is and what output format you require –for example, include a template to mark-up, note if the advice needs to be re-packaged into training material or state if the email needs to be forwarded onto a third party.

Only canvass technical information to be included in the advice if it is critical. We know a lot of black-letter law already so do not need to pay for it.

Tell your solicitor who your “customer” or “internal client” is and how you may share the advice. The solicitor needs to be aware that in-house will use their advice in a number of ways: avoiding legal jargon or formality can be the difference between being able to forward an email versus re-writing it.

Ultimately, putting time into framing up the instructions well will improve the quality of the advice, ensure the content and format of the advice will be more effective and enable your solicitors to enjoy working for you more as clarity means the output is easier to deliver well.

3. Be conscious of our role as mentors

You may brief a partner or senior associate. However, you may have agreed or be aware they will pass the work onto a junior lawyer and supervise the final output.

Framing up instructions to enable the junior lawyer to understand them and get started on the work aids our external counsel as well as ourselves. The senior can forward on without re-packaging (more cost and time efficient) and the junior lawyer is given a genuine chance to do legal work (and this in turn trains them to deliver legal services better).

At ILANZ we have considered how instructing in-house counsel are mentors to private practice junior lawyers in addition to their supervising partners and senior associates. If we want to get the best standard from our next generation of lawyers, we can help by offering clear instruction, encouraging them to get in touch with us directly with any queries which assist their learning and show them what the end product looks like.

For example, you could share the final email or output that went to the business, include them on calls with any relevant business colleagues to flesh out the commercial issue or show them the training material you incorporated their work into. This mentoring approach also means the senior lawyers will see this too and benefit from noting the style or approach you favour.

4. Be realistic and kind with timing expectations

The ILANZ committee considers that in-house counsel must be good clients first and foremost. This is not just about paying invoices on time. It is about recognising we are procuring a service from regular people who are just like us and treating them well.

Technology advances should have enabled law firms and in-house practices to free up more time. However, we know that lawyers still work long and untenable hours. However, as a service industry that relies on brain power as much as computer power, we need those brains to be working efficiently. That requires rest, balance and some fun out of the office to re-charge.

A powerful, yet simple, way in which in-house can be good clients is to be reasonable and responsible about timing expectations from external solicitors.

If a matter or task is genuinely non-urgent, it is very helpful to let the solicitor know this. They can allocate work in a more efficient and productive way. If the work can be allocated to a junior and have more time spent on it to assist them to learn, this is useful to a partner or senior too.

One committee member says they believe this responsible attitude is very important to relieve the extreme pressure in law firms to deliver work. To achieve this, timing expectations are discussed openly and in advance. This can be achieved with the initial email instruction but followed up with a call on the matter to pad out the instructions and check in on capacity.

The side effect is that genuinely urgent work is treated as such and your solicitor knows that you really do need it quickly as you are always reasonable.

5. Show recognition

A woman working at a laptop

The majority of us will have some form of review or development plans with our employer to peer review our work. Some of our employers may have recognition policies.

The water cooler chat from private practice lawyers is that quite often they are unsure if they are actually delivering the service that their clients want or need.

We can reverse this without much effort from within the in-house community. Many of our committee members are of the view that a collaborative, team-like working relationship with external counsel is preferred.

A team approach is to share feedback on when work has been performed well and – more importantly – why it is good. Was it the way it was written, the way it was delivered or the approach to problem solving that was used? Whatever was genuinely helpful, pragmatic or useful is worth telling your external solicitors about.

On the flip side, some external counsel may make assumptions on what you want or need based on a traditional practice style. They may be completely unaware that the advice they have supplied has had to be re-packaged by the in-house lawyer to enable it to be passed onto the business. Having to spend more time re-working advice or trimming it down can defeat the purpose of instructing it out.

A simple technique is to share what the end product for your business looks like: the template, the training document or an example of earlier documents used. The more your external counsel can see your company style or approach, the more they can tailor to the next piece of work.

Regular practice and matter reviews are also undertaken by our committee lawyers to ensure matters are tracking appropriately, a different direction can be suggested or ongoing feedback is invaluable for a service industry.

This works both ways: if you are a private practice lawyer ask for the above if you are not already receiving it. In-house lawyers are well used to having to offer their business colleagues advice in non-legal jargon, they will be genuinely happy to share this learning.

6. Be open to improve and change too

Briefing responsibly is not a one-way street. If you have a genuinely collaborative relationship with your external counsel, hopefully they are comfortable to supply you with feedback too.

To avoid spending time where we do not need to, encourage your external counsel to let you know if the instructions are working well. They may need more information or even less. You may be requesting a pre-determined solution and they feel constrained by this when they are sure they could offer a better alternative. Mentoring operates in the reverse and we can learn more efficient or responsible ways to brief from any level: junior or senior.

Your preferred law firm may have an application or platform to load instructions into: be open to utilising this. If they can achieve a uniform approach from their clients, this builds efficiency and can offer us a way to learn how to brief more effectively too.

7. Final thoughts

The in-house legal community is not immune from the pressures that face our private practice colleagues. We are all working towards the same goals. We want to enjoy our roles, deliver value and progress in some way without too much stress, overwork or unreasonable expectations.

Taking a responsible approach to our briefing and working approaches with external counsel is a winning formula that both client and solicitor benefit from.

Sian Wingate is President of ILANZ, the Law Society’s in-house section. This article includes contributions from Herman Visagie, Caroline Sigley, Grant Adam and Donna Llewell, all of whom are committee members of ILANZ.

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