There is a fine line between providing legal advice and commercial acumen for an in-house lawyer. So where should the legal advice start and stop, and the in-house lawyer's commercial mind step in?
According to the Deloitte 2010 study, "Do in-house lawyers hold all the cards", there has been an increasing trend for general counsel to take on non-legal roles on top of their regular legal work within their organisations.
Such findings provided the inspiration for a debate on the commercial legal divide at the ACLA National Conference last week, with a number of GCs revealing just how they handle the multiple hats they're asked to wear within their organisations.
"The types of non-legal roles we're talking about include most commonly the company secretary responsibility, regulatory and risk compliance responsibilities and risk management," said Alexandra Rose, the debate facilitator and chairperson of the NSW Law Society Corporate Lawyers committee. "Some additional roles include strategic development, managing teams aside from the in-house legal team, holding directorships, managing ethics or whistle blowing programs and project management responsibilities."
That's a vast array of responsibilities many in-house lawyers and GCs are now being asked to take on. But can such roles conflict with a lawyer's overall duty to act first and foremost as legal counsel? And how can in-house lawyers differentiate between providing legal and commercial advice?
In the case of Greg Watson, general counsel at Metcash, his role is strictly legal, but he and his team go further than the black letter law where needed.
"All the advice I provide is quite strictly legal. Informally, however, I'd like to think that my team makes a massive contribution to the company in terms of the commercial side," said Watson.
Watson added that he does not believe he faces too many conflicts in making both these functions work. "For me, it's the communication and it's the clarity and I've built up that relationship with the CEO and the executive so they understand what we can provide and what we can't provide," he said.
"My team has earned its place at the commercial table via the value proposition that we offer the business."
According to Amanda Harkness, group general counsel and company secretary at ASX Limited, in-house lawyers can join the dots across business silos, while still retaining their role as legal counsel.
She said that in order to give the best legal advice, you need to understand the commercial product and that broad understanding can often lead in-house teams into seeing a birds eye view of the business.
"Often lawyers are in a position where the legal team has the whole business coming to it for advice on different matters. Joining the dots is something that's only able to happen when you can do what I'd call 'zooming up and zooming down'."
Rob Simpson, director of legal and business affairs at the ABC, believes it's usually clear to the business in what capacity he is acting. "I don't think I've actually seen a situation where it's not clear in what capacity you're acting," he said.
"You may well be indicating there are some risk factors and that if you've said 'well there are potentially significant risks in doing x, y and z, but on balance this is probably the best way to go', well that doesn't mean an absolutely ironclad sign-off, where if there is a problem, people are saying 'the lawyers signed off on it and I don't know why people are now pointing the figure at me'."
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