Ten Tips to Help You Get Your Legal Advice Accepted
You can give legal advice to clients as an in-house attorney, but it will vary depending on the facts and the person asking. Sometimes, you may need to write formal advice that explains the issues, risks, and possible solutions.
But, often, you will receive your advice more informally, via email or oral communication. Although your advice will focus on the legal issues, it will often include practical suggestions that can be used to address an issue given the law risks.
Because your primary function as an in-house attorney is to give legal advice it is crucial that your words are understood, acted upon, and that they are heard. How do you ensure this?
Listen first, and then ask questions
While it might be tempting to just jump in and solve a problem or offer a solution right away, this is not the best way to go. It is crucial to first understand the problem in its organizational context. While you may be able see the legal issues clearly, these are only part of an overall organisational issue that you will likely need to address.
Sometimes, clients may only give you the information you require. This could limit their requests to legal points that they are particularly interested in or those they feel really important. The context can have a significant impact on your advice.
It is important to use judgement when dealing with something simple. A good understanding of your organization, how decisions are made, and who the key decisionmakers are is essential to get to the core of the issue.
Recommend from a position that is strong
It’s important that your client colleagues trust and know you. It may be easier to get to know someone if you are part of a smaller team or organisation, but it’s still helpful to be visible. Although it may be hard to get away from your desk due to work volume, it is important to make contact with your colleagues at least once a month. This will allow you to gain insight into the workings of the organisation and the people who work there.
Trust is harder. Visibility is not enough to build trust. Trust is built on credibility and respect. Credibility comes from being good at what your do and by demonstrating respect through the way you do it. You must follow the law. Don’t promise too much and not deliver. Act on time. Do it with integrity. These are difficult tasks, but crucial for your success in your role.
Get involved early
You don’t necessarily need to know everything about the legal issues in an organisation. However, it is crucial to get involved as soon as possible in plans and activities that may raise important legal issues. These issues may not be obvious to others, so early warning can save time and money.
It can be difficult to get involved early. Others may not see your value, or fear that you will stop their plans. It’s better to have formal processes for legal review of specific business actions at each stage than relying solely on a few referrals later in a day. It’s also beneficial to have legal risks audited before and to have checks, balances, processes and procedures in place (perhaps in the wake of a previous crisis). If you don’t have the time or resources to demonstrate to clients that your involvement is valuable, then it’s worth doing so at the optimum stage. It’s better to be involved early than later when changing course or pausing can make things more expensive and complicated. It’s important to have a good understanding of your clients’ work, and to show a proactive, positive approach.
It is not always easy to help clients with complicated legal issues while also answering their business questions. Your clients won’t usually be interested in the law but only how it affects their business. Avoid merely stating the legal position, then leaving it up to your clients to determine the consequences. Simply put, this means you need to frame your advice in terms of: “You can’t do X, but you can do “; or “You can’t do X until the following legal requirements are met”; or “You can’t do this (either in any way or at all) because it violates regulatory or legal provisions that we must follow.”
Clear communication means speaking in business language. Avoid legalese, management-speak, and use everyday language. Write down the problem and answer if you’re giving advice. Keep it brief, and if necessary, add headings and executive summary. You can leave your legal reasoning for a follow-up or an annexe.
Think about how you will present the advice if you’re giving it verbally. You might be asked to advise in a meeting. If this is the case, keep your focus on the main issues and not the follow-up questions. There will be “what if” and “what about” questions at every level, so ensure you have the ability to handle these beyond the first few. Consider your first sentence, and how you want your audience to perceive it. In general, you should only say what you have to.
Don’t try to do it yourself
Sometimes you won’t have enough time to prepare for a tricky question. Even if you don’t know what the answer is, you can mark it down as an improvement point. However, don’t assume the answer. It’s not easy to lose credibility or trust by getting it wrong. Do not assume that you are the expert, but do your research and follow up promptly.
You should also avoid getting pushed into any decision too soon, even if you are asked to advise on an activity. While you might need more time to fully consider, you may also need to provide a legal overview on whether the activity should be continued or halted. You don’t want the matter to remain open to interpretation. If you are in a meeting, this is not always possible. You don’t have to be perfect. Do your best to address the issue at hand. Consider this example: “Based on what you have said, my initial opinion is x. However, it merits more thought because the implications could be severe if we do not get it right.” Let me remove that and come back to you with y.”
It is essential that you can avoid giving an answer that is too immediate and not reasonable, while maintaining your credibility. In essence, being honest and thoughtful will make you more respected than being quick to correct.
Do your homework
Lawyers are taught to be thorough. You’ll need to know the law, even if others don’t like it. However, you must keep up-to-date and understand the law. Without a solid grasp of legal issues, your credibility and influence will be severely diminished. In addition, you will be expected know the workings of your organization. What does each department do? What are the organisation’s key markets and financial performance? How do they prioritize and deal with threats? How and by whom are decisions made? You need to be involved in the daily operations of your company, even though you may not be an expert in any other areas. It is not a good idea to only focus on the law. You must be informed and curious.
Don’t preach, don’t patronize
Preaching or patronizing can be a problem that could turn off your colleagues as lawyers. As you will be dealing with mistakes and omissions from others, it is easy to fall into this trap. An attitude that assumes they are idiots or that you know everything is not something they will respond to. It could cause your colleagues to be reluctant to consult with you. This could have disastrous consequences. You need to be more understanding and helpful. It is important to remember that people are looking for your assistance in solving a problem or getting things done. They don’t want to be taught how they made it worse. It’s not a bad idea to point out solutions to future problems. However, it is important to be mindful of their specific areas of expertise. You wouldn’t want a colleague to give you advice on running the legal department.
When dealing with people who are experiencing stress or whose tempers are more easily strained, it is important to use the right tone and language.
Peer reviews, draft advice
Your line manager, or another senior lawyer in your department, may need to review your draft advice if you are advising on very important issues. Even if your position is senior, it can help. You may have to give more detail than the client. However, this is a good way to organize your thoughts and make sure you cover all bases. It is possible that you will have to brief the GC (or a senior lawyer) on a matter that they will be discussing at a committee or board meeting. This is a great opportunity to practice writing advice that focuses on key issues and strikes the right balance of law and organisational impact. To practice your analysis, you can use your legal colleagues.
Also, consider whether you could use draft advice to clarify things with your client. Perhaps you might ask if you’ve addressed all relevant issues and if the actual problem is being addressed.
Resilience is a skill you can learn
You can quickly learn what your colleagues think about what you are saying because you work closely with them. There will be some toing, froing, and clarifications as facts are established. However, not everyone will agree with you. That is part of being an inside lawyer. Sometimes, you and your team might make a mistake. You shouldn’t let this stop you. Realize that perfection is not possible. Second, be open to your mistakes and take the necessary steps to rectify them. It is usually possible. Third, rebound by taking a quick victory if possible – for example, by exceeding your expectations on a task. Fourth, stress levels tend to be higher during times of crisis and rapid change. This is why it is important to take this into consideration. You can learn more by how you react to challenging situations. Your ability to handle pressure better will help you the next time it happens. Do not try to do it alone. There are no prizes in giving up, even if you keep going. Ask for help and support, and make use of your support network within and outside the organization. Resilience can be taught, but it is often not easy to learn when things are going well.
Handling push back
You will not always receive the full benefit of your help and advice. You might find that some clients are quite vocal in questioning what you say. You shouldn’t feel intimidated by or influenced by these clients. Sometimes they might be right, and sometimes they will point out things that you hadn’t considered. Accept it graciously and consider it a learning experience. If you feel that the ‘dispute” is centered on the law and you believe you are right, but others are downgrading or overlooking your legal (and maybe ethical) risks, then you should stand firm. You must remain calm, measured, and be clear about the consequences of your advice being rejected. Although you can’t control the actions and opinions of others, the hard work that you have done to establish your credibility and build trust should help others see that you don’t advocate for or against any particular position without valid reasons.
These situations call for a strong escalation policy that involves the GC and other senior lawyers, as well as the senior management of the organisation and, eventually, the board. While the process itself may vary, the fact remains that legal advice about key matters and risk should not be ignored. It is essential that there are processes in place to ensure that advice is considered at the highest level.