Dibyajyoti Das of London Stock Exchange Group points to the critical first steps that in-house counsel should take in a new job
The role of an in-house counsel has become an increasingly important one in corporate India across sectors and industries. The role primarily remains the same in any organisation, being mainly to mitigate legal risks and to advise the company on all legal matters, including disputes, and to negotiate contracts with clients, suppliers and partners. However, the structure and responsibilities may vary significantly because of the variation in applicable laws depending on the location and type of business involved.
Moving jobs can be quite an unsettling experience, yet a welcome change at the same time. Everything changes, from your office space, to the intranet, to your colleagues nearby and even the coffee machine. These are all pre-pandemic changes of course. Now, the main changes, at least visually, may be shifting from Zoom to Microsoft Teams or Cisco Webex and the last few letters of your email address.
There are many things an in-house counsel should tackle in the first few months. These are some of the necessary aspects:
Know the basics
This is something that is vital for any new hire, not just in-house counsel. This includes the organisational structure, the different departments and their roles, as well as who runs them, the most important products/services, the plan of the organisation and your team for the year and the performance of the company in the past years. Most organisations make a plethora of such information available on their intranets, which any new employee should read through in their first few days and months.
The organisation’s policies
As an in-house counsel, one of the responsibilities is to ensure that there are various policies in place in compliance with applicable laws. Necessary training or awareness initiatives should be taken by the organisation to make their staff aware of these policies. There are training programmes, especially relating to the code of conduct, business ethics or policy relating to the prevention of workplace harassment, that are mandatory by law. It is always a good idea to take such training in the first few weeks since it is an interactive way to understand the major aspects of these policies. There are other policies, which are of special importance to an in-house counsel, such as those relating to anti-bribery or anti-corruption, conflict of interest, data privacy and anti-competition.
Other stakeholders involved
A legal team works with various internal stakeholders of an organisation. As a new in-house counsel, you need to know who these are and how they interact with your role.
1. Finance: Finance departments play key role in negotiating critical commercial terms of any contract including payment terms, credit period and interest on late payments.
2. Tax: Due to complexities in goods and services tax (GST) credit and implications of TDS (tax deducted at source)/GST for cross-border contracts, the negotiations for tax clauses have increased significantly.
3. Compliance: If it is a separate function, the compliance department is the closest to the legal department due to the nature of their roles and is housed under the general counsel in most organisations. For a regulated business, some contracts, for example sales distribution contracts in the insurance sector, may have many regulatory clauses where views of the compliance team can be paramount. In most organisations compliance and legal teams work collectively in case of exposure drafts for new regulations or commenting on new laws.
4. Department heads: In many negotiations or even in contentious matters, an in-house counsel will need to liaise with the various business, department or commercial heads for guidance or to assist with their approval to break a deadlock or where a business approval is needed to strategise the response or defence in a litigation. In view of this, if your role is specific to a particular business or department then it is always good to set up a meeting with the business head to learn more about them and to introduce yourself.
5. Human resources: You will need to liaise with the HR team in any employment matter, whether it is drafting employment communication, responding to an employment dispute or analysing laws that impact employees. Even while negotiating contracts, views of the HR team become important in clauses like background verification and non-solicitation.
6. Administration/real estate/facilities teams: If your role includes negotiating a lease or leave and license contracts, contracts for facility management or security services or any similar contracts then you will need to liaise with the administration/real estate or facilities teams.
7. External stakeholders and suppliers: All legal departments have external lawyers or law firms or other suppliers. It is always good to connect to these lawyers and relevant personnel in those law firms to get to know them and have their contact details handy in case of an urgency.
Contract life cycle
If your role is primarily related to negotiating contracts then it is important to understand the life cycle of such contracts, you may divide them into contracts with clients/customers and contracts with suppliers/vendors. Further division may be necessary if there are certain specific types of contracts, for example, franchise or distribution contracts. To understand the contract’s life cycle, you will need to understand where the request for it originates and through which functions such a contract travels until it is finalised. This is especially important since there are dramatic variations when compared across organisations, there may be specific teams that maintain a record of such contracts or there may be specific applications that track them. Learning about these will be helpful when you initiate vetting or drafting these contracts.
Standard drafts and important opinions This is especially important for in-house counsel since this will help in maintaining standard practices across all negotiations and all drafting done by you. Access all the standard contracts, playbooks, any templates for responding to notices and disputes to understand the standard clauses, responses and the general position taken by your organisation. A standard draft of the contracts will reflect the position of your organisation concerning important boilerplate clauses like indemnity, limitation of liability, disclaimer of warranties, IP rights, confidentiality and dispute resolution.
Any playbooks will further add perspective to the rationale and the explanation that is generally provided to clients, which will bring consistency to client negotiations and is quite important. Whether an organisation retains standard formats for responses to legal notices or litigation depends on the industry and if there is a trend in similar kinds of matters.
For example, in insurance, there will be matters where clients will raise mis-selling as a dispute or will challenge a claim repudiation and in banking, a client may raise a dispute against any charges levied or recovery for unpaid dues where the line of arguments may be fairly similar across matters.
Legal team processes
Each organisation may have different processes and may use different applications for various purposes. If you are coming from an organisation that does not use a contract management system, you may want to check if your new organisation uses such an application, check the system and read the FAQ document. If there are processes followed for reviewing contracts or handling disputes or litigation, you may need to review the relevant process documents to be in sync with your colleagues when performing your day-to-day work. The pandemic has also taught us to be more resilient and to be more technologically savvy, so keep abreast of new applications that may benefit the legal team, such as applications capable of digitally storing and easily retrieving executed contracts or important legal documents which can be beneficial when working from home.
Tracking of work/dashboard
All legal teams/departments need to track their matters whether it is contracts or litigation. I have seen regular monthly and quarterly meetings where a number of matters are analysed and compared with similar periods. There may be other dashboards that used by the management or JV partners, especially regarding important matters that may have a monetary threshold or a criticality definition. You will need to check the format and past presentations or reporting to be aware of how and what is being reported, to ensure that you do not miss such reporting requirements.
Syncing the lessons learned
It is always important to use past lessons in a new role so that we may implement some of the positive practices of our past experiences into the new organisation. This may be more relevant if you are in ais a senior or solo counsel role. But make sure you are not sharing information that may be confidential or that you are contractually prevented from sharing. You may also need to be mindful not to push too many changes too fast. Such changes should be gradual unless you see unlawful or illegal practices that need to be remedied immediately.
As an example, if your past employer has a clawback provision in their agency contracts that allows their organisation to claw back such amount from future payments to their agents in case a sale made by such an agent is cancelled due to malpractice, you may propose similar set-off clauses in similar agreements with your new employer without divulging confidential details about your previous organisation’s practices.
Dibyajyoti Das is senior legal counsel (South Asia) for the data and analytics business at London Stock Exchange Group.
