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.
Why?
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......