Articles Posted in Productivity

The inboxes of many corporate counsel are filled with contracts to be reviewed and negotiated. How efficiently those lawyers plow through the pile makes a big difference in their productivity. For this reason, when I read about Rule 4.2 of the Model Rules of Professional Conduct I thought of the overlap between productivity, management and professional ethics (See my posts of April 15, 2007 about the attorney-client privilege and lawyers who are officers and sign contracts; and Oct. 24, 2005 on other overlapping topics of substantive law and management.).

Rule 4.2 precludes an in-house lawyer from communicating about something with a person the lawyer knows to be represented by another lawyer in the matter, unless the lawyer has the consent of the other lawyer. I was surprised to read in the summary of an ACC webcast on ethical problems for in-house counsel that “the District of Columbia’s ethics committee recently opined that a lawyer may communicate with the corporate adversary’s in-house counsel even where the adversary is represented by outside counsel in the matter. (District of Columbia Bar Legal Ethics Comm. Op. 331, 10/05).” Thank goodness!

But when the other party to a potential contract is not a lawyer, aw when the person is a Contract Manager, may the in-house lawyer negotiate the contract with that non-lawyer. According to the ACC “The prudent course is to request consent from [the other company’s] legal department to negotiate the deal with its Contract Manager.” This adds delay, paperwork, and one more task to get done.

An article in Legal IT, July 14, 2006 gives three instances of law departments that have embraced software that helps them with documents.

Cisco Systems uses to DealBuilder document assembly system (See my post of Feb. 6, 2007 about other users of that software.). With that software, an estimated 500 non-disclosure agreements are completed automatically per month by Cisco employees.

At National grid, a British energy infrastructure company, its law department uses a software combination of Microsoft SharePoint and WorkShare. That document management system ensures content compliance and security and helps the department tracked multiple versions of documents.

A thoughtful piece by Don Cohen in the Harv. Bus. Rev., Vol 84 December 2006, at 28 doncohen@rcn.com starts by acknowledging that “businesses have been trying — and mainly failing — to calculate the return on knowledge-management investments for more than a decade.” The short piece discusses why the measurement problem has not been solved and then offers two ideas.

Cohen suggests that “the more successful management projects target particular roles, groups, or processes and expected outcomes are articulated upfront.” For example, a law department might target the process by which its staff reviews marketing materials.

Second, those organizations with the most vibrant KM programs “approach the measurement problem by accepting soft indicators that knowledge management is earning its keep rather than demanding hard numbers that may be misleading.” For example, general counsel might accept a telling anecdote or two as better indicators of success than a precise but irrelevant number, perhaps such as the number of documents loaded in a database.

A post on a blog of Legal Week, reprinted in Legal Week, Vol. 9, May 24, 2007, at 20, reminds us of four ways to improve conference calls. The first: call in on time. “More often than not, the first 15 minutes of any call are spent waiting for other participants to join, trying to contact them by e-mail or on another line.”

A second suggestion is to respect the role-call function of the host. Don’t announce yourself when you come on line and don’t assume that others are not on the line; they may be silently waiting. Third, don’t waste everyone’s time by engaging in a semi-private conversation that interests only one or two. Take it off-line.

Finally, speak loudly and clearly, directly into the microphone or handset. I will add two bonus recommendations: people on conference calls should frequently use their mute button and people should also be aware that paper rustling and ice cubes clicking creates background cacophony for others.

The following quote, from the ACC Docket, Vol. 25, June 2007, at 83, may have been a general counsel wishing out loud, joshing the interviewer, or announcing a breakthrough metric. “One CLO said he intended to develop a metric based on ‘the cost of failure’ with failure being defined as any time the company gets into a dispute where the company paid more than originally obligated including for legal services, settlements or because of contract disputes, or even to address employee disgruntlement.”

This metric makes no sense. If something goes wrong with a contract, that’s a law department “failure”? Even if so, how do you figure out what should have been paid? Maybe the quote was garbled…

Paul Paton, an assistant professor at Queen’s University Faculty of Law in Kingston, writes in CCCA Mag., Vol. 1, March 2007, at 14, about corporate governance scandals and what to do to address them. He foresees that law departments will be called upon increasingly to act properly. Accordingly, “Codes of conduct for inside legal department are a logical step to respond to outside concerns and provide guidance to lawyers inside.”

I have never heard of guidelines for inside lawyers as to their own ethical behavior, but who could argue that they too don’t need reminders, education, and pointers? Certainly, if you expect your law department to be the beacon of rectitude (See my post of May 6, 2005.) you might go down the road of promulgated guidelines.

Here are four admirable and humane principles out of seven shared by Rachel Taknint, the Vice President – Law Department Planning and Operations & Associate General Counsel of Northwestern Mutual, at a recent ALIC conference. The four especially appeal to me because they differentiate a law department perspective on work expectations from a typical large law firm’s perspective.

1. “The quality of a person’s work together with his or her overall productivity are more important than the number of hours worked” (See my post of Sept. 10, 2005 on why lawyers loath tracking their time.).

2. “Work performed at home or from another location is of equal value with work performed in the office, and work performed at non-standard times is just as valuable as work performed during traditional office hours” (See my post of June 9, 2007 on flex-time and compressed time.).

Aside from the ubiquitous Word and WordPerfect, or the equally omnipresent Outlook and kindred email programs, my candidate for the software that in-house lawyers use most intimately and frequently is the law department’s shared drive.

Everyone can access it. Everyone can create a directory sub-structure on it that makes sense to them, and everyone can rummage around in it to find material that might help them. A shared director is the poor man’s knowledge management system.

James A. Nortz, the senior compliance lawyer for Kraton Polymers, offers his views in the ACC Docket, Vol. 24, Oct. 2006 at 112, on the role of the legal department with regard to corporate policy statements. He recommends five steps the department must take to put the company’s policies to work.

First completely inventory your company’s policies and “keep only those that are truly essential for running your business.” That sounds simple but I suspect it drags a law department into a morass of corporate sensitivities and viewpoints.

Second, Nortz recommends that the law department organize the final list of policies into segmented groups. For example policies applicable to all employees would be gathered together. Again, this sounds easy, but given enough policies it could be quite difficult to create a taxonomy.

From the Canadian Corporate Counsel Association survey of its members for the 2007 In-House Corporate Counsel Barometer, at 17, comes a surprising finding. Over the past year, 16% of the 722 responding corporate counsel reported that their company did not have a single “legal dispute” filed against it. Since this data comes from the section of the report entitled “litigation,” I assume that a “legal dispute” is a law suit. About one third of the respondents work for organizations that faced only one-to-five “legal disputes.”

This data hardly portrays a litigation explosion in Canada. To the contrary, lawsuits are a distinctly infrequent occurrence. Of course, these companies might file lawsuits against other parties, but if Canadian companies are like US companies in this respect, that is the exception.