Preparing for commissions of inquiry as in-house counsel
A commission of inquiry (COI) brings myriad challenges for in-house legal teams who must navigate through a different set of considerations, responsibilities and the unique demands that are placed once it begins.
Speaking at a seminar hosted by Level Twenty Seven Chambers, on the topic of “Commissions of Inquiry: an In-House Counsel perspective”, Denise Obst, general counsel of GHD Australia and Carissa Smith, senior legal counsel of GHD Australia said that challenges were unpredictable and different for an in house-team when facing an inquiry.
Once an inquiry hits, the in-house team must expect that there will be no notice or any early indications of involvement according to Ms Obst, who faced no real notice when GHD was involved in a commission of inquiry earlier this year.
“We had very little understanding of how much involvement we were to have. We naively felt that our involvement was minimal at the outset and we had little indication of our role and our position at the beginning, she said.
“As the inquiry gears up, indications of the role we were to play become more obvious.”
With the unpredictable nature, it becomes harder for in house teams to plan in deciding how to resource the team once it begins.
“This wasn’t an easy decision, it involved multiple conversations, internal and within the legal team and the business,” Ms Smith said.
“We had to consider what our roles were in the commission, and what we thought our workload would be and general day jobs.
“It was a decision continually accessed and this wasn’t once in for all decision, it was continually assessed based on our workload for the commission and our transactional roles.”
Strategic decision-making also needs to take into account the business impact and it changes when comparing it with normal litigation.
“It’s safe to say it’s a lot different in a commission of inquiry,” Ms Smith said.
“There is a massive financial impact on a company. We don’t earn any money from a commission and we had to backfill our roles, along with various costs for experts and we had no insurance policy that covered that.
“From a cost perspective that was big. From a disruption perspective, it was different too, we couldn’t do our day jobs generally and there is a constant level of disruption across not just the legal team but all those involved in the business.”
As the commission of inquiry sets in, GCs must also balance the interplay between in-house teams, key stakeholders and the commission.
Ms Obst said this is always a significant concern for in-house counsel.
“In any scenario, the first thing is to identify the key stakeholders within the organisation, the appropriate decision makers but also people who need to be kept informed,” she said.
“For communication purposes, a big part of being an in house counsel is managing that process between stakeholders and people who need to be informed.
“I have to say being an in-house is that there is a responsibility to be discharged to be satisfied that you have informed your key stakeholders efficiently so that they are making fully informed decisions and that’s always a challenge to a lawyer, you are always second guessing yourself and asking ‘have I given them enough information?’”
As in-house counsel, there is also the need to be uniquely placed to identify very quickly which employees are appropriate to give evidence necessary but with that is the responsibility to put them forward in the witness box.
“Employees have to respond to legal issues but also technical issues and those employees called to the commission will face stress and disruption to their daily jobs,” she said.
Ms Obst said that balancing was key and that she stood by providing constant support and making sure they were in a better space.
“Some employees are confident but some aren’t and there are also mental health considerations for employees GCs must consider,” she said.
“Commissions are stressful, and I would rather have a less perfect witness statement than having an employee be in a very stressful situation. Mental health considerations are important and employees are always reminded there is assistance available but importantly, in this case, our employees have support from management.”
When working with external teams, key takeaway is that setting expectations is crucial on the outset.
For Ms Obst and Ms Smith who worked directly with barrister Nicholas Andreatidis QC and Sophie Gibson during the inquiry, the value of direct and constant communications was very important.
“As in-house counsel, key takeaways are the ability to communicate that is direct and instantaneous with the need to adapt and work with the counsel team when managing it all in house,” Ms Obst said.
“The big negative was an enormous load of work that comes so choosing the correct fit for the business will be crucial and it makes a huge difference once the inquiry begins.”