More to gnaw on

Wednesday 11 December 2013

Walks like a duck, quacks like a duck

"A general counsel should never talk like a lawyer, or think like one."  I came across a debate on this statement on Twitter a little while back.  One of the more perceptive responses to the Twitter discussion came from UCL’s Professor Richard Moorhead, who queried what would become of a profession “… if being effective in your job is predicated on being something you're not”.  My contribution to the debate was that a general counsel should indeed never talk like a lawyer - but that while a GC should always be ready to think like a lawyer, there would certainly be times when not thinking like a lawyer would be appropriate; and as I have thought about the issue since, I have identified the key to both the thought and the talk pieces as being that they support the legal agenda rather than betray it.  
So, why should a GC – for that matter, any in-house lawyer - never talk like a lawyer?  I don't think any of us take “talking like a lawyer” simply to mean using language like "heretofore", or ‘mutatis mutandis” or any words eiusdem generis.  While using these in a commercial context is guaranteed to provoke references to quills and parchment if not worse, there is a good deal of less obviously legal language which nonetheless divides us from those we advise. 
Private practice lawyers – which most of us in-house types have been – talk of clients all the time.  I don’t see why they shouldn’t, their clients are all individuals or organisations external to the firm and with whom they have a commercial relationship. There’s no reason why the firm couldn’t describe them as a customer.  I think however that in-house lawyers should be much more discriminating in their use of the word "client" – even when qualified as “internal client”.  There are times when the "client" word needs to be used expressly (“attorney-client privilege” being perhaps the most obvious).  And there are times when the in-house lawyer must be very conscious of the relationship held with colleagues as a client (in the context of the professional conduct obligations that lawyers have towards those they advise), even if they do not use this particular c-word expressly.  But outside these circumstances, I try to avoid using the word.  Using it suggests a sense that the in-house lawyer and the business colleague are in a relationship defined by a contract – a supplier – customer relationship.  This sends all the wrong messages and worse, drives unhelpful behaviours (not just on the lawyers’ part).  In an arms’ length, professional services relationship, the adviser goes where the client directs; in a mature in-house environment, the adviser goes where the employer needs them to go, whether that is where the people with whom the lawyer interacts directs them to go there or not. 
I also advocate great care in using the word “business” (granted this is more of an issue for lawyers in commercial organisations although I dare say similar issues are experienced by those in third or public sector organisations).  I am always alarmed to see "business" used to describe a separate organisational grouping from the lawyers (as in "the lawyers need to get closer to the business").  The insidious nature of this usage is that it tends to suggest that the in-house lawyers have a different status from their business colleagues – something that can only undermine their credibility and influence within the organisation.  In short, if the lawyers aren't part of the business, then they've no business being in the organisation.  In-house lawyers should always keep their language consistent and inclusive in this respect, and be ready to challenge those in the rest of the business who do not.
So what of "not thinking like a lawyer"?  As indicated above, I don’t think this is a universally helpful approach.  In fact I'm of the view that the way in which lawyers are taught to think often brings a valuable and distinct perspective to the issues faced by an organisation.  However, where a pure legal thought process disadvantages an organisation is where the legal analysis is not in balance with other perspectives.  Many a successful business strategy is legal and offends no third party’s rights (so is, legally, unobjectionable), but looks illogical (so offends the legal mind).  An example from way back in my past – I worked for a company which issued petrol cards.  if a customer lost a card, my company assumed the risk of fraudulent purchases once they were told of the loss.  So why in the pre-internet age did my company only notify petrol stations once a fortnight of “hot” (lost / stolen) cards (and thereby assume the risk of fraudulent spend in the intervening period)?  This offended my logical legal mind – until it was explained to me that in most fortnightly cycles the cost of mailing out lists of “hot” cards far exceeded the illicit spend.  It was cheaper – and so more effective, to take the occasional hit of fraudulent spend than it was to prevent its occurrence.

My own view on how lawyers should think is that they should always be ready to look at matters through a legal lens.  For a start, no one else will take this perspective, and failing to do so both exposes the organisation to a level of compliance risk which may otherwise go unheeded, and fails to make the most of the style of thinking that lawyers bring to the party.  But by thinking only in this vein, lawyers risk isolating themselves from their colleagues whose thinking patterns take them through different analyses, with as unhelpful an outcome as if they used some of the language decisions I referred to above.  Looking at matters through a business or operational prism best enables lawyers to make their advice resonant, so the skill of being able to put the legal hat to one side when looking at an issue – and then pick it up and wear it again – is one hallmark of an effective lawyer (in-house or private practice).

I’ll conclude with an anecdote from an even earlier point in my career, as a private practice lawyer.  A client (correct usage, this time) turned up for our firm’s advice – he’d just bought a company and needed help with the statutory books.  Evidence of the company purchase wasn’t a carefully negotiated sale and purchase agreement.  It wasn’t even a share transfer form.  It comprised two documents - a purchase order and a receipted invoice for the shares.  Looking at one another in disbelief, the responsible partner and I gently took our client through all the usual concepts of warranties and indemnities, due diligence and the like.  Twelve months on and the casual attention that both our client and the sellers gave to resolving these legal niceties meant that our deal still was not done (even though the client was happily running the acquired business).  Looking at one another in disbelief, the responsible partner and I surveyed the wreckage, took off our lawyers’ thinking caps and put on our businessmen’s hats.  And doing so we thought that perhaps the client was, despite all the lack of formality and the things that would need to be done to perfect his title to the shares, more right than we were.  Sometimes it doesn’t pay to think like a lawyer.

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