Tuesday, 31 January 2012

What not to review?

It is a basic principle of in-house lawyering that you are supposed to refuse to advise "the business" (aka clients) on things that don't really require legal advice.  Or if you are the GC or a senior lawyer you are supposed to avoid advising on matters that don't require someone senior to advise on them.

It is all about time management you see. 

Simple, right?  Well yes, in theory.  Until a client asks you for some advice that you think you should refuse to provide but with which your client wants you to help.  Turning theory into practice is more difficult.

In our team we call this the Coffee Machine Contract Conundrum (I will resist the obvious lawyerly OCD temptation to define this as the "CMCC").  It all goes back to an occasion where we were asked to review the contracts under which our procurement team was procuring some coffee machines (cutting edge digital media law, that's what we do).  Ah, we thought, this is one of those contracts which we're not supposed to review.  We need to remember that basic principle we've all heard about.  We're supposed to politely say no and spend our time on something strategic instead.  We need to take a grown up approach to risk and tell our client sagely that they do not need to have the coffee machine contract regularly reviewed (when I get carried away I like to think of this as akin to Obi Wan Kenobi in Star Wars telling the stormtroopers in Mos Eisley that "these aren't the droids you're looking for"......with a very persuasive, wise and unarguable "this contract does not require a legal review" voice.  Admittedly, Obi Wan has the edge on me in achieving a successful outcome).

Except when the lawyer "glances" (a euphemism) at the Coffee Machine Contract to, you know, just double-check that it doesn't require review, they discover a low value finance lease underpins the purchase of the coffee machine.  And lawyers don't ignore finance leases do they, even low value ones?  That would be negligent wouldn't it?  Oh, this can all get very confusing.  Do we review it or not?  I know, we'll have a vote - all those in favour of refusing say aye (the commercial lot) and those against say no (the negligent lot).

And since this episode, we refer to contracts or issues that don't really require a legal review as Coffee Machine Contracts.

So it is recently that I found myself advising on an issue that possibly required no legal input at all and certainly did not require me to sign-off as GC.....after all, I have far more important things to do.  Like, erm, wade through email and debate with law firms about invoices (there - first unsolicited and unjustified dig at out-housers of the year, it does wonders for the page views).  I should know better.  I know that this advice fell into the Coffee Machine Contract category.  I ask my team to spend their time wisely.  But I spent my time advising anyway.


Because the client wanted me to.  And they were happy that I did.  If I was an out-houser, a happy client would make me feel good about my day's work.  But as an in-houser, my unhappiness at breaking the CMCC, sorry, I mean the Coffee Machine Contract Conundrum principle, is outweighing the happiness of the client.  But I have a feeling that if I'd refused to help my client, my happiness at complying with that principle would have been outweighed by the unhappiness of the client.  What I think you call a Lose Lose.

Legal process theorists will tell you it is easy to put different types of legal work in different types of boxes and resource them appropriately (or not resource them at all).  And to some degree, this is certainly true.  But what the theorists ignore are the grey areas between the boxes where the Coffee Machine Contracts reside.

Time management is tough.  Theory is easy - but anybody who thinks they can work based on theory alone needs to wake up and smell the coffee (I confess to being mildly pleased with the segue-way into that line). I could go on, but work calls - someone wants me to review the services agreement for the upkeep of the plants we have in our office areas, and who knows what illegal and harmful pesticides the supplier might use if I don't review the contract properly and add an appropriate indemnity......