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Episode 39
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Practice Management and Business Skills
The Ins & Outs of the In-House Lawyer
Law as stated: 7 June 2021
What is this?
This episode was published and is accurate as at this date.
In this episode, we discuss all the lessons Marcus Suliman, UK head of legal at Saxo Bank Group, has learned from his vast experience working as an in-house lawyer at large companies to see what it takes to succeed as in-house counsel.
Practice Management and Business Skills| What area(s) of law does this episode consider? | Marcus Suliman discusses the roles and responsibilities of generalist in-house lawyers in large companies and corporations. Also considered in this episode is the mutually beneficial relationship between in-house company lawyers and external private law firms. |
| Why is this topic relevant? | According to the Law Society of New South Wales’ ‘Practising Solicitor Statistics’ for September 2020, almost a fifth (18.5%) of all NSW Lawyers work in an in-house role of some description. That’s more than the number of lawyers working in law firms (17.6%). From the years 2011 to 2018, the corporate legal sector grew 61%, whereas the private sector only increased 23%. The undeniable upwards trend in the demand for in-house counsel is indicative of businesses being met by increasingly complicated legal challenges, especially given the rise of new legislation in recent years. It is also an indication of businesses recognising the value of having a legal perspective on commercial matters from an advisor who has a deep knowledge and understanding of their business. Generalist in-house lawyers are interlocutors between their employers and the legal system. Understanding the dynamics of an in-house company legal team can help make private solicitors better prepared to instruct them when engaged to advise in-house lawyers and additionally to help maintain good standing with in-house lawyers and their businesses. Suliman shares his insights on the valuable lessons he has gained from his experience as an in-house lawyer, such as the importance of timeliness, plain-language and lateral thinking, and how they are transferable between in-house and private practice. |
| What cases or legislation are relevant to this episode? | Morley & Ors v Australian Securities and Investments Commission [2010] NSWCA 331 (‘James Hardie Judgment’)
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| What are the main points? |
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| What are the practical takeaways? |
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| Show notes
| Deloitte’s Legal Risk Management Framework |
| David Turner: | Hello and welcome to Hearsay, a podcast about Australian laws and lawyers for the Australian legal profession, my name is David Turner. As always, this podcast is proudly supported by Assured Legal Solutions, a boutique commercial law firm making complex simple. Joining me today on Hearsay to discuss his tips for in-house counsel as well as how us external lawyers can be better suppliers to in-house counsel is Marcus Suliman, UK head of legal and co-secretary for Saxo Bank group. Marcus, thank you so much for joining me today on Hearsay. |
| Marcus Suliman: | Thanks for having me David. |
| DT: | Now Marcus, tell me a bit about your role in Saxo Bank Group, what’s a day in your life look like? |
| MS: 1:00 | So I’m the head of Saxo Bank’s UK entity which is situated in London. So I slot into a larger legal team that involves other heads of legal around other parts of the world. I manage a team of two, one lawyer and one paralegal, and we’re in an office of approximately 100 people, so it’s not a very large office. I would say we do pretty much everything that comes up that touches the UK for the group because we are the only lawyers in London. That involves everything from say, a lease for a photocopier right through to a massive capital markets contract that is, you know, in relation to one of the banks or brokers that we deal with that might be a large wholesale deal that we’re doing. |
| DT:
2:00 | It sounds like a tricky role because on the one hand you need this generalist skill set to deal with the first end of the spectrum you were describing, but on the other hand you are in a kind of specialist financial markets business and so you do need that financial markets expertise to deal with the other end of the spectrum you’re describing. |
| MS:
| Yeah I think definitely, and it’s a skill set that I’ve had to build up over a number of years working in similar businesses before I got to this role where I am now. The other thing that I would say is there are lots of other sorts of specialist areas of law that we have to advise on an ad hoc basis all the time. So say for example employment contracts, tax issues, you know what in Australia would be considered a lot of cross border issues because our parent company is actually situated in Copenhagen. And we do lots of deals that are between different countries, so between for example the UK, Denmark, and Japan, or the UK and Singapore, or Denmark and Singapore subject to English law, so there’s lots of different challenges that the business throws up. |
| DT: 3:00 | Now before you were at Saxo Bank Group you were in some other in-house roles and then before that in private practise halfway around the world here in Sydney, Australia, tell us a bit about the move from private practise to in-house: why did you make the move? |
| MS:
4:00 | So I was a restructuring and insolvency lawyer at a large international law firm and I think I had a fairly busy practise. I went to court a lot, I liked going to court a lot and I could see a future for myself if that makes sense. And I didn’t really have any issues with being in private practise. And then the opportunity came up to go on secondment in-house to Vodafone to work with their marketing and commercial legal team. And I went on secondment to Vodafone, and after about I would say two days I decided that in-house was for me and I never wanted to go back to private practise again, not because there was anything wrong with private practise but I think because I as a person really, and as a lawyer, really enjoy different and varied challenges and I think that in-house you get such a breadth of challenges thrown at you all the time that you might not get exposure to if you were in private practise. And so, I use sort of an analogy of if 180 degrees of vision is everything that’s out there, private practise teaches you that you can only look at 30 degrees at any one time, whereas in-house you are looking at the whole 180 degrees all the time. |
| DT:
5:00 | That’s a great metaphor and a great reason I think for a career change. I personally found a similar experience going from private practise in a very large firm to private practise in a boutique practise with more of a mid-market focus. I found that greater breadth of exposure to different legal issues and different business issues really. You end up having a broader role advising the business, as I’m sure you find in-house. What was the biggest challenge you faced moving from private practise to in-house? Was it a change in the skill set? Was it a change in culture? And was there anything you really struggled with, I guess? |
| MS:
6:00
7:00
8:00 | In private practice, or in private practise in a large firm, I think you are taught to be a specialist from very early on in your career. I think from the time that you stop doing your graduate rotations you’re taught that, you know, ‘that’s your area of expertise, start specialising.’ And that means that you don’t necessarily believe that you can do other things. TIP: Law firm consultant and CEO of Free Range Lawyers, Katherine Thomas, attributes the early and deep specialisation of lawyers to the influence of large international law firms. She says that in her experience, she finds that “specialist skills only hold premium value inside the rarefied atmosphere of the large international law firm.” Now this makes sense as international law firms provide separate counsel for every area of legal practice and have the resources to develop industry-leading specialist lawyers who will always be in demand across a broad enough base of clients and markets in a niche area of law. Now those seeking advice on a corporate liquidation might be best placed to seek that from an insolvency lawyer; and anyone with a complicated tax problem is probably best served by an experienced tax lawyer. But today, there is a growing preference on behalf of many clients, both small and large organisations, as well as government departments, looking for lawyers with a more generalist experience who can advise on complex problems that involve multiple fields of law and even commercial, social, political and other extra-legal factors. Now you might have heard of the specialist vs generalist debate being framed as the “fox versus the hedgehog” debate, referring to British philosopher Isaiah Berlin’s 1953 essay in which he suggested that “a fox knows many things, but a hedgehog knows one important thing.” In his TedX Talk, academic and investor Vikram Mansharamani offers another comparison between puzzles and mysteries. He describes puzzles as clearly defined problems with straightforward solutions, well suited to the ‘hedgehog-style’ specialist thinker, whereas a mystery is more ambiguous, a vaguely defined issue that can only be creatively resolved by the generalist ‘fox.’ The pressure to specialise in a large law firm is something we’ve touched on before on Hearsay in Episode 1 ‘The View from the Bench – Tips for Aspiring Bench’, in our interview with Justice Lucy McCallum where we discussed her diverse career in the law before becoming a Supreme Court judge. But I think that your training as a lawyer means that you can inherently do lots of different things; it’s just that you’ve only ever turned your mind to the specific area of focus that you’ve been specialising in. So I’d say that was one challenge. And then another challenge was going from an environment where you’re constantly dealing with other lawyers on a daily basis both within the firm and on the other side of matters, to being in an environment where you’re dealing with other people who are not lawyers and who are not specialists on a daily basis. And so, your daily interactions become very different. You don’t send emails with advices in them that are, you know, referencing specific statutory instruments. You tend to be more of an explainer and interpreter. Your internal clients are just ordinary people from you know marketing, HR, PR, sales, those sorts of teams. |
| DT: | I think that’s probably a good way to think about your role for any lawyer but it’s easy to fall into the trap of being that kind of expounder of arcane knowledge when you’re dealing with people who also have the arcane knowledge. It’s easy to just rattle off case references and section citations rather than really thinking about ‘well what’s the clearest way for me to describe what I’m saying?’ |
| MS: | Yep, exactly. |
| DT: 9:00 | Now, as you were saying earlier your role is extremely broad, but it also calls on some specialist knowledge. But in that role you’re not only providing your own advice to the business but you’re also managing the business’ external engagements with external legal services providers. When you do have that broad generalist experience, how do you decide what stays in your team and what you brief out? |
| MS: | There are quite a few different circumstances where I would brief something out. So in a broad sort of general counsel generalist role there are things that you don’t have the specialist knowledge to do in-house, there are things that you don’t have the capacity or the resources to do in-house, and there are things where, or matters where, you need to effectively outsource your risk. I would say they’re the main 3 areas that I would brief a law firm on. |
| DT: 10:00 | Tell me a little bit more about that last category; because I think a lot of our listeners who are in private practise would definitely recognise the need for in-house counsel to brief something out that requires a lot of manpower, for example if we’re talking about large scale discovery something like that, or something that requires a really niche area of expertise, but tell me a bit more about that third category? |
| MS:
11:00 | So I think there’s a certain element of when you’re advising a business as in-house counsel there’s always an element of risk. So when I say risk I mean the risk of your advice being incorrect and that having a large impact on the business that you’re advising. So I think there’s definitely a place for external law firms in terms of either the internal counsel checking their advice with an external law firm as a trusted advisor and partner, or the internal lawyer going to an external law firm in order to advise on a specific area of law and provide a legal opinion so that that risk is then sort of quantified and hived off in a way. |
| DT: | It’s odd to think of yourself in private practise as kind of a provider of an insurance policy or effectively selling the PI insurance policy that sits under you but sometimes that’s a practical reality, isn’t it? To have that comfort that someone with a policy professional indemnity insurance is standing behind the advice. |
| MS: | Yeah absolutely, absolutely. And I would say there are there are quite a few instances that I’ve been in where I’ve known the answer to a question before I’ve gone to a law firm, but I just need that confirmation from someone external in order to take it to my board of directors to get their buy-in because we are effectively buying the law firm’s insurance policy, if you will. |
| DT:
12:00 | I mean that’s what we use solicitor’s confirmation letters in finance transactions for all the time, right? To get that sort of comfort. In those first two categories where you’re talking about something that might be beyond the resourcing of your in-house team or outside of your own area of expertise, have you ever had a task where you thought at first ‘yeah I can do this in-house’ and then as you got started realised ‘oh geez I’m in out of my depth here a little bit, I might actually have to brief it out’? |
| MS:
13:00 | When I was newer to being in house as opposed to being in private practise, I remember being thrown a debt recovery which was the kind of thing that I would have eaten for breakfast when I was in private practise and I can remember starting the court procedure in order to recover the debt which in the District Court. And halfway through the proceedings, I think it got to applying for default judgement and I just realised I didn’t have the time to draft the documents and so I sent it to an external law firm to do it for me. And I think that was probably the first time I realised that even though you can do something doesn’t necessarily mean that you should when you’re in-house. |
| DT: 13:00 | Because you’ve got a lot of other demands in that role as an interpreter, explainer, that take you away from what we would traditionally think of or what private practise lawyers would describe as that on-the-tools work, you know, drafting legal documents, attending court, what have you. What are some of those tasks that take up a lot of your time in-house that you never thought you would be doing as a private practise lawyer? |
| MS:
14:00 | Going to meetings, meetings, meetings, meetings. Especially now that we’re in COVID times and everything’s on Zoom or Teams or Skype, I think I spend a lot of my time in meetings. Mainly because when you’re inside a business a lot of things get discussed in meetings and people need that legal reassurance that trust that what they’re doing is OK at an early stage of proceedings, probably before they even get to the point where they think that they might need legal advice. |
| DT: | I see. In that case you’re not there to respond to a request for legal advice, you’re almost there to identify the problems, the unknown unknowns, the things that people don’t know they need to check off with legal. |
| MS:
15:00 | Exactly, exactly. Part of being in-house at least for me, is identifying legal problems that people don’t even know that they have, and then solving those problems so that they don’t become larger problems in the future. For example, in the business that I currently work in, we obviously have a marketing team who are quite proactive and want to go out and advertise in as many different markets as possible. And so there might be marketing campaigns where we want to go into a certain country where we don’t have a licence, or where we might need some sort of permission in order to conduct financial services marketing. And so it’s kind of identifying that that’s the direction of travel and guiding the business at an early stage so that it doesn’t become a greater issue later on when we’ve subsequently spent a portion of the marketing budget in formulating a marketing campaign for that country. |
| DT:
| I know that there’s a stereotype or a cliche about in-house counsel sometimes being a gatekeeper or a bit of a roadblock in getting things done, do you sometimes find that attitude when dealing with other departments in the business? Or do you really have to engineer the way you provide your advice so that it’s more solutions focused rather than being a roadblock? |
| MS: 16:00
17:00 | That’s a really good question David. I think in my career I’ve come up against that perception from people within the business quite a bit and I think if you are an in-house counsel and you are almost perceived of as the ‘department of no’ or the gatekeeper to a rejection, then you’re not really doing your job, in my opinion, because your job is not to be the ‘department of no,’ your job is to be a facilitator and a guider and an advisor. So I think it’s really important as in-house counsel when you’re advising a business, you’re part of that business. So you also rise and fall based on the success and the detriment of that business just like everyone else. So when you’re in meetings or working on projects with other stakeholders within the business, it’s your interest or your point of view or your perspective that will guide the business through whatever the legal obstacles are. I mean sometimes there are situations where you just can’t do things. So, say for example if you wanted to have an ad for a mobile phone that involves someone driving a car and texting while leaning out the window not wearing a seatbelt, that’s definitely something that you can’t do. But most of the time it’s not a question of things that the business can’t do, it’s a question of what the business can do and how they can do it – if that makes sense. |
| DT: | Absolutely, you know you used that phrase the ‘department of no,’ I think you have to think of yourself as the ‘department of how.’ |
| MS: | Yeah exactly, exactly, the ‘department of how.’ |
| DT:
18:00
19:00 | …of being an implementer. You know I find in my own experience in private practise advising early stage companies or companies that are trying to achieve rapid growth and achieve it quickly, you do need to take that perspective of ‘well, not doing this isn’t an option’, you know? Except in those rare circumstances where it’s not merely difficult but probably wrong, but where it’s something that’s good for the business, a good strategic move but legally difficult: how is it achievable? And your job is to come up with the structure or the strategy to bring that complex or complicated or challenging strategy to life. TIP: Of course, in-house counsel sometimes do have to play the ‘gatekeeper’ role, and for very good reasons. The Association of Corporate Counsel (ACC) has stated that in-house lawyers are considered gatekeepers with regard to their role in “promoting good corporate governance, market integrity and maintaining investor confidence,” especially in publicly listed organisations. Another kind of gatekeeper role that in-house counsel sometimes fulfil was considered in the case of Morley & Ors v Australian Securities and Investments Commission [2010] NSWCA 331, which is better known as the James Hardie case. In that case, the Court found that a number of non-director officers of James Hardie Industries, including the company’s in-house counsel, were responsible for a misleading announcement published to the ASX, which had the effect of rendering those in-house lawyers ‘gatekeepers’ of the company’s corporate ethics and lawfulness by imposing on them the duties typically reserved for directors. The judgement was received uneasily by some in-house lawyers in the market, who saw the obligations imposed on them as difficult to reconcile with their professional obligations as well as their obligations as employees of the company. |
| MS:
20:00 | Yeah I think that’s one of the one of the things that private practise lawyers sometimes don’t understand is that when you’re in an in-house role and you’re instructing a private practise lawyer on something that might seem very legally difficult but there is a what seems like a simple solution which, say for example, might be ‘why don’t you just get all of your clients to sign this document.’ That’s not a feasible course of action for most companies to get every single…I mean my company has, just in the UK, has 20 or 30,000 clients and most of them don’t open emails. I mean getting everyone to sign something is not a feasible course of action. But it’s not about the easiest solution, it’s about what the business needs to do and the way that they need to do it and whether or not it’s legally possible to do it that way. And I think that goes back to the whole ‘department of no.’ I mean if you were the ‘department of no,’ then you would go back to your business and say ‘you need to get all of your clients to sign a document’ rather than looking at alternative ways of obtaining consent for example. |
| DT:
21:00
22:00 | And I think that kind of goes back to what you were describing earlier about being able to proactively identify issues and not merely respond to them. And it’s that link between the legal function and the risk function. And I’ll ask you to sort of tell us a bit more about how you perceive your role around risk, but, you know, there’s more than one way to manage risk. I think many lawyers take the approach that ‘well if there’s a risk we should avoid it.’ That’s definitely the approach we should always take, but you can externalise a risk, you can mitigate a risk, you can accept the risk, you know there’s lots of different ways to manage that risk. TIP: Deloitte have published a useful infographic that in-house lawyers can use as an outline for a legal risk management framework. It’s a four-step method involving:
As we’ve said before on this show, what isn’t measured can’t be managed. And as always, we’ll include the full infographic from Deloitte in our show notes. And on that topic of risk Marcus, maybe tell us a little bit about how you perceive your role in terms of the relationship between legal advice and risk? And in that sense I’m not talking about financial risk, or market risk, operational risk, the kind of particular risk portfolios that you might see in a business like Saxo Bank, but more the difference between completely eliminating or avoiding a legal risk and taking a different approach to it based on the needs of the business. |
| MS:
23:00
| I think it’s an interesting question because risk is, as you say, one of those things that can be treated in many different ways. And just because there is a risk doesn’t mean that it’s automatically a no-go for the business. So if you think about a legal risk that that presents itself there are several things you can do. So you can mitigate the risk, so you can do something to sort of make it smaller or prevent it. You can accept the risk, so you can basically define the risk, draw a border around it, and as a business accept that that risk exists and do business anyway. Or you can decide not to proceed on a course of action because of the risk. I think that’s quite important to sort of get in your head. And I think the way that legal advice plays into those sort of actions on risk is that you can’t do any of them without knowing what the actual risk is and what the implications of that risk are. And that is essentially one of the key functions of the in-house lawyer is looking at the business, looking at the processes and operations of the business, or a particular project, and working out what those areas of risk might be and how to deal with them. |
| DT: 24:00
25:00
| And just to follow on your point about accepting a risk, putting a box around it and accepting that you can move forward notwithstanding the risk, risk professionals also talk about passive and active acceptance; that you can kind of acknowledge a risk and say ‘oh yeah well we’ll just ignore that because we don’t need to mitigate or avoid it’ or you can say ‘well we’ll accept it but will monitor it and see whether we need to change our approach to it later on.’ Coming back to the decision to brief external counsel for a matter, when you’ve made that decision to brief external counsel, whether or not that’s because you need the extra resources, or you need a particular specialist skill set, or you just need the insurance policy, what are you looking for in selecting external counsel? Are you choosing based on price? Based on expertise? Based on personability? What’s that decision factor for you? TIP: The Law Society of New South Wales’ In-House Lawyers Committee has a useful “Handy Hints for In-House Lawyers” document which details factors that in-house counsel should consider when selecting private practitioners to instruct, which might include their:
The document also outlines a number of different ways for in-house counsel to structure their engagement of private practitioners, including but not limited to:
A link to the Law Society’s ‘Handy Hints’ document can be found in our show notes. |
| MS: 26:00 | So, I’m in a really fortunate position to work in a company where we’re not really big enough to need a panel or to want to panel, so I’m quite free in who I can instruct. And put very simply David, I will instruct the person that I know will give me what I want. So when I say that, I mean when I’m instructing that external lawyer do I need them to provide a 50 page advice because I’m outsourcing my risk? Do I need them to throw a bunch of junior leaders at a matter because I don’t have the capacity to do it? Or do I need them to be my trusted advisor on a very specific point of law that I can’t advise on my business personally because I don’t have the expertise? Or is it a combination of those things? And I think the people that I instruct again and again are those lawyers who can give me what I want, or what I need. |
| DT: 27:00 | I imagine a lot of the time the misunderstanding in terms of what you need or what in-house counsel needs is the difference between the first example and the third; that you might need the answer and you might need that in a translatable practical understandable applied way, but what you get instead is the 50-page advice. |
| MS:
28:00 | That’s exactly right. So I think there is very much a difference between ‘this is a problem I need an answer, can you give me an answer’ on one side versus ‘I need a legal opinion because we have this issue and I need to hive off the risk of that issue.’ And usually I will tell whoever I’m instructing which one of those it is. But occasionally, you know, someone might give me the 50-page advice which I didn’t ask for and then present a bill for. And that doesn’t sit well I don’t think with most internal counsel. And I think most internal counsel have had that experience when you ask a simple question and you get a very complicated answer. So I think as a private practise solicitor being instructed by an in-house solicitor, you have to remember your end client is quite often not that in-house counsel, your end client is the stakeholders of that in-house counsel. So if I ask a fairly specific question and I get an HSC essay as an answer, I’m then in a position where I have to then take that, interpret it, extrapolate what’s relevant, put it in another summary and then send it to my internal stakeholders. But the most successful relationships that I have are where my external counsel know that I’m, for example, asking a question about marketing and sale of financial products in Lithuania and I need a one paragraph email that I can then flick on to my board of directors. |
| DT: 29:00 | Speaking of issuing a bill for maybe more work than you were anticipating you were going to pay for, to what extent is price an important issue? Or even not even price but the way a lawyer prices? To what extent is that an important issue in how you choose? Because on Hearsay we’ve covered the move towards fixed fees in a couple of different episodes, we’ve covered speculative or sort of skin-in-the-game arrangements as well, TIP: If you’d like to hear an in-depth discussion of the fixed fees vs hourly rates debate, why not try our Episode 6 of Hearsay, ‘Microeconomics for Lawyers’ with Dr George Beaton who explains how microeconomic principles can help law firms to improve their business development strategies. Why not give it a go after this episode?! To what extent do those sorts of arrangements weigh on your decision making? |
| MS: 30:00
31:00 | I think to varying degrees depending on the matter I would say. If I’m instructing on a matter for example and I know that it’s a project, I will ask for quotes from a few different law firms and then I’ll go with one of them. And it might not necessarily be the person who’s the cheapest, but it will be the person that I know will do the best job for me. That’s my personal approach to instructing external counsel. What is really difficult though is when you encounter a bill that is outside of the estimate, but you weren’t necessarily told about it before the bill was issued. And for me and the business that I operate in, the reason why that is difficult is because when you instruct someone externally you generally have a pot of money that you can go and use to pay for the legal fees. And so that might be like a general legal pot, like your overall legal budget, it might be a project budget for that specific project, or it might be another pot of money. But generally, when you’re in-house you’re looking at your allocation of resources including where you spend your legal fees and how much you’re spending on different things. And so it’s very difficult to do that when you receive surprise bills. Alternatively, you know, say for example on some matters I might need to get approval from my CFO for spending money on legal fees and I might get approval for, you know, for a matter that will cost us say for example £10,000 pounds, and that matter will be estimated at £10,000 based on an estimate that was forwarded to me. It’s then very difficult to go back and ask for more money later on because the law firm has overspent on time. So in a roundabout way, I think I’m basically saying that I think event costing is much easier than time costing from an internal resource allocation standpoint, but I’m not necessarily against time costing, but I am against being surprised by legal costs. |
| DT: 32:00
33:00 | Well said, and I suppose event costing or fixed fees are a good way to avoid that surprise. Though as you say, a good estimate and an accurate estimate of do-and-charge or hourly rates-based charging can avoid that surprise as well. It’s funny that in one of your earlier answers you said that sometimes external lawyers don’t appreciate that you’re not the ultimate client, that that advice is ultimately going on to the rest of the business and you have to, as the interlocutor, interpret and explain that to the business and the more complicated it is the harder that job is. But when it comes to billing there’s this kind of conflation of yourself and the rest of the business with this idea that ‘oh well if I’m a little bit over but the work was reasonable and necessary, you know whatever, you can just find the money somewhere,’ and not acknowledging that in fact you then have to yourself go and get the budget for that from another part of the business. On the one hand when it comes to work product they’re identifying you as the lawyer, on the other hand when it comes to spending, they’re identifying you as the business directly. It’s funny how we think of those two issues in very different ways. |
| MS:
| Yeah and I would say put yourself in the position of you asked for an advice that you thought was going to be simple in nature, you got given a quote, and then you got something that was surplus to requirements in terms of the complexity and you were overcharged for it and you then had to go back to the business and spend lots of your own time in interpreting that advice so it could be digested for the rest of the business, and then also go and ask them for more money because you overspent on the legal fees. |
| DT: 34:00 | And then of course it reflects on you because the rest of the business is saying ‘well you’re responsible for managing this budget, why is it coming in over budget?’ |
| MS: | Exactly. And so you can you can probably guess what happens to external lawyers who operate like that in terms of repeat instructions. |
| DT: | I can imagine. Having had that experience in a few different in-house roles, but external before that, if there was one tip that you wanted to give the external solicitors that are doing your work at the moment or that have done your work when you were in-house counsel in the past, if you could give them some gratuitous and unsolicited advice, what do you think that one tip would be? |
| MS:
| Know the business that you’re instructed by, and give the business what it needs, and listen to your instructions and to do what you’re instructed to do. Sorry, that’s three things isn’t it. |
| DT: | Well they’re all good things though. |
| MS: 35:00 | The other thing is: do what you say you will do, when you say you will do it. So comply with your own deadlines. Don’t be, you know, half a day late, a day late, a week late. |
| DT: | Well you’ve clearly got plenty of unsolicited and gratuitous advice for the lawyers that have worked for you. But all good advice all the same. It sounds easy to do doesn’t it? To do what you’re instructed to do and listen to your instructions and perform them accurately but it’s apparently much harder than it seems. And I think we’re all guilty of it at some point that we reinterpret the task that’s ahead of us into something more complex or something different than what it actually is. |
| MS:
36:00 | I think I’ve probably set myself up in this interview as being a bit of a hard taskmaster, but I would say on the other side of the equation, I have been in private practise and I understand that you’re not just running one matter for one client, you’re running several matters for several clients all concurrently and there are time constraints, there are, you know, billing issues of your billable hours, and what appears on a bill, and how it appears in a bill. And there are all of these other external factors that affect the output of your advice. But that being said, I think if there’s one thing that lawyers are guilty of it is not being good enough listeners. So, and when I say that I mean thinking that they know what someone is saying rather than actually listening to what they are saying. |
| DT:
| Yes absolutely, no I think that’s absolutely correct. And, you know your tip was to do things by the time you say you’re going to do them and so perhaps it’s not a matter of promising ‘oh I’ll definitely get this to you in 24 hours, I’ll definitely get this to you in 12 hours, I’ll turn this around super super fast,’ but to give realistic turnaround times given the amount of work that you have on your plate. Because I imagine you’d much rather be told you ‘you’ll get this in a week’ and get it in a week, then to be told ‘you’ll get this in a day’ and get it in a week. |
| MS: 37:00
| Absolutely. Because don’t forget, going back to my earlier point, the internal lawyer is usually not your final client. So when you say to the internal lawyer ‘I’ll get back to you in a week,’ he or she has probably gone back to their internal stakeholders and said ‘right I’ve spoken to so and so at so and so firm and I’ll have something back to you in a week, or week and one day’, you know to give a day to just sort of read and interpret it. So when you don’t deliver on that as the private practise solicitor, it puts the internal solicitor in a bit of a pickle because they’re probably gone and promised something to their internal stakeholders that they are then not able to deliver on because you haven’t delivered within your time frame. |
| DT: | Yeah absolutely. |
| MS:
38:00 | And to be honest, like sometimes it might be immaterial. Sometimes it might be you know an odd question that’s not urgent, but other times it might be, you know, I’ve had instances where I really needed an advice to give to the board by a certain time so that it could be included in a board pack. And I’ve had external lawyers be late on that advice and you know, it’s a sub-optimal position to be in I would say. |
| DT: | I imagine a lot of external lawyers are probably afraid to ask, you know, ‘is this urgent? Or is it really urgent? Or is this something I can sort of take my time on?’ But it’s probably worth asking. It’s better to ask and know, rather than to not ask and end up in a situation like the one you described. |
| MS:
| Yeah definitely. And I think if the person instructing you isn’t clear, it’s well within your rights to make sure that that understanding is crystal clear when you’re instructed. Because I think it will save you a lot of pain in the future. |
| DT:
39:00 | It sounds like the real key to being a good advisor to in-house counsel is understanding the dynamic between in-house counsel and the rest of the business. To understand that there is a chain through which this work product is being delivered, that there is this interlocutory role that in-house counsel have, and to understand that the work you’re producing, the price that you’re charging for, all of those things affect the relationship that the in-house counsel who’s instructing you has with other stakeholders in the business. It sounds like that’s really key. |
| MS: | Yeah that’s definitely key. |
| DT:
40:00
| Just going back to your tip about understanding the business, when you say that do you mean understanding the industry in which the business operates? Because I know certainly a lot of law firms, including ones we’ve worked for, have had a real focus on that, a real focus on industry knowledge, or is it more about understanding the individual business? Understanding its structure, its culture, its own products, the personalities that are in it. You know, are both important? Is one more important? TIP: The Thomson Reuter’s ‘Practical Law’ series includes an article on ‘Skills and behaviours required for an in-house role’. In that article they include ‘Becoming absorbed into the in-house culture’ as an important step in becoming effective in-house counsel. They recommend trying to “get a feel for the culture of the organisation and its legal team before you join through research and interviews, and by talking to friends and colleagues who know the business and its in-house lawyers.” Understanding the underlying culture of a business is just as important as understanding its formal policies to providing that business with meaningful, useful advice. And that’s whether you’re in-house or external counsel! |
| MS:
41:00
42:00
43:00 | I think it’s both of those things. So in terms of the industry, I think one of the things that I come up against in my current role is that Saxo provides essentially financial products that would normally only be available to institutional investors to ordinary people. So we offer CFDs, FX futures, options, bonds, as well as cash equities. So most other brokers would only offer cash equities and maybe CFDs, right? Or Forex, or they only do one or two, but we have the full suite of products. And so one of the issues that I come up against when I’m instructing external counsel is they might look at our futures and options offering, for example, and put us into this category of being an investment bank like JP Morgan, Morgan Stanley, and offering those products to the street. But there’s always an additional overlay in that we are essentially offering those products to consumers and so there’s an extra tier of advice that you need in terms of, you know, fairness and propriety and all of those sorts of general consumer principles. So I would say that’s kind of on the side of where the business is within its industry and knowing the core activities of the business. And then, yes definitely knowing, and this might be more difficult for the external lawyer to get an insight into, but definitely knowing the ins and outs of the business and the culture and the way that it operates. So, and again, if you’re not necessarily told by your internal instructor it’s always, I think, good practise to ask ‘what is this advice, where is it going to, who are the key stakeholders, what are they like, how will they treat it.’ If you don’t have access to those stakeholders because you’ve got the internal lawyer between you, or if you are on a call with those stakeholders, listen to what they say and kind of try and gauge how they will react to things that you say based on their personalities. You know that always stands people in good stead, because just say if you have an internal stakeholder who happens to be on a call with you as the in-house lawyer and an external lawyer, if it’s a great call they’ll remember you, they’ll remember the external lawyer and they’ll suggest that you use that external lawyer again. But if it’s a bad conversation, then they will remember it more and they will remember that person that said XYZ and they won’t want to trust anything that that person says ever again. So yeah, I think it’s both equally important. |
| DT:
| That understanding of the personalities and the culture is so important, I’ve definitely found that myself in private practise, but it sounds like in terms of the industry knowledge it’s good to be able to speak the language of the industry or the product that your client offers, but it sounds like what’s really important is understanding your client’s place in that industry. You know what you were describing as kind of Saxo’s unique selling proposition is what sets it apart from competitors, it’s what carves out its place in the market, and it sounds like that understanding is really critical in terms of industry knowledge. |
| MS: 44:00
45:00
46:00 | Yes definitely. And then if I look at our external counsel that we constantly instruct and what we are instructing them on, because they have that inherent deep knowledge of what we do and where we sit within our industry, you know, they are our trusted partners. So we would we wouldn’t dream of, for example, offering a new product, going into a new market, redrafting our customer facing documentation, all of that stuff that external lawyers want to do and that as a private practise lawyer is kind of the epitome of good work, we wouldn’t do any of that without speaking to our trusted advisors who, you know, are the other people that we instruct on a frequent basis. TIP: The Looking Glass Report, produced by Clyde & Co and Winemark in partnership in 2018, considered, among other things, the changing role of the in-house general counsel and the internal counsel/external counsel relationship. The report identified four key relationship types between internal and external counsel:
We’ll leave a link to the full Looking Glass Report in our show notes. |
| DT: 47:00 | I’ve asked you about your tips for the external lawyers advising you, but you know something I find interesting is having a different role in our profession sometimes gives you a new skill set or gives you a new perspective on the work that you do and sometimes looking back you think ‘gee I wish I’d known that earlier in my career, it would have made it so much easier for me to do the work I did back then.’ Is there something you’ve learned, a skill you’ve picked up, or a way of looking at the work you do from being in-house that you wish you knew as an external lawyer? Not necessarily in terms of the dynamic between you and an in-house counsel instructing you, but just in terms of the skills that you deploy as an in-house counsel? Is there something there that do you think really would have served you well practising as an external lawyer? |
| MS:
48:00 | The one thing that I think I probably did as an external lawyer that I realise is largely irrelevant as an internal lawyer is trying to impress people. In that, I think if you are a good lawyer it doesn’t matter whether you’re internal or external, but if you’re a good lawyer and you know what you’re talking about and you have a certain amount of conviction in your opinion, then people will believe you and like you and I don’t think you need to try and impress people. |
| DT: | I think sometimes that comes across in drafting actually funnily enough, or the way someone communicates in writing. |
| MS:
| So I have a thing with drafting which is, and being in the UK and having come from Australia where plain language drafting is a thing and it’s definitely not here, is I never realised how much I love dot points and clear, precise language that doesn’t use words like ‘shall’, ‘therein’, ‘herein’, you know. |
| DT: | Oh ‘shall’, It’s such a trap. |
| MS: | Yeah and until I moved to the UK and ‘shall’ is peppered through every document I read on a daily basis. |
| DT: 49:00
| I think that sort of language you do find in Australia, the ‘shalls’, the ‘whereins’, the ‘hereins’ but you tend to find it, this might be an unfair comment maybe it is maybe isn’t, with younger lawyers or less experienced lawyers who are trying to write with that kind of legal flourish. And I’ve found overtime that short sentences, clear verbs, no adverbs is a much more impressive way to write than with the ‘shalls’ and the ‘hereins’ and all of the flourish. |
| MS:
| Yeah definitely, and I think it’s much more impressive if you can provide an end product that is concise, easy to read, and doesn’t require a translator for an ordinary person to read it. And I think using words like herein, therein and shall especially, I think there’s a perception that it makes documents sound legal. But I think it just makes documents more difficult for the end user to read. |
| DT:
50:00
| Absolutely. I go through all of my documents and try to remove every adverb, especially in correspondence in litigation matters. I think people love their adverbs but they’re not necessary. Although I do still have the weakness for the semicolon, I love a semicolon. We’ve talked about all the things that external counsel shouldn’t do, but I thought we might end on a high note. I was wondering if you could share with me a story about external counsel or some external legal product that really hit the mark and really surprised or delighted you with what you received. Have you got a story like that? |
| MS:
51:00
52:00 | Yeah so there’s one that immediately kind of comes to mind and that’s where I had an issue where the COO of the company I was working in came to me and said ‘we’ve got this issue with this tax law that means that we’re going to have to pay an additional,’ I think it was about, ‘[redacted] pounds in tax, unless we can somehow get out of it.’ And so I went to my usual trusted advisor, partner of a large law firm and I said to him ‘you know we’ve got this issue, how do we get out of it?’ And he got his tax partner involved, so that’s the specialist knowledge and realising that we need to outsource the risk, and we went through it and there wasn’t really a way to get out of having to pay this tax. But then the partner said to me ‘do you know what you could do? You just could go and lobby the tax authorities to get an exemption from this rule because the bill that we’re talking about is in committee stage and hasn’t actually been passed. So if you could get to the right people then the chances are that you can influence it, possibly.’ And so, what then happened was I had the assistance from that law firm in drafting a letter to the minister, obtaining a meeting with that minister, and then the subsequent people and the tax authority, and basically being able to speak to them about where we were, and we were able to put our case forward which then resulted in the bill being amended and an exemption being passed in, essentially in the Finance Act of the UK, so in the budget, that carved out companies of the type that I was working in at the time. |
| DT:
53:00 | Wow! I mean that’s really a demonstration of all of the things you were describing before, isn’t it? There’s that specialist knowledge of the area that sits outside of that kind of generalist skill set, there’s an understanding of what it is you actually need which is the solution rather than, you know, just a certificate or the comfort that you’ve got the insurance policy. There’s understanding your place in the market to identify that there is this possibility of getting an exemption, and then there’s understanding of how you fit into the rest of your business and the stakeholders that you’re managing in order to kind of get this sort of extra-legal or strategic result through the lobbying process. |
| MS:
53:00 | Yeah I have to say that pretty much hits the nail on the head of what you want from your legal advisor; all of all of those things rolled into that one matter. And then the other thing I would say, selfishly, is that the output of a matter like that is that it makes you as the internal lawyer look great to your internal stakeholders because you’ve solved the unsolvable problem, but at the same time you’ve done it in partnership with this external advisor or set of external advisors. |
| DT: | That’s probably the takeaway from this episode, isn’t it? That if you can make the internal counsel look good, you’ll look good too, and if you can make the internal counsel look bad, then unfortunately you’ll look very bad as well. |
| MS: | In a nutshell yeah basically. |
| DT: | Marcus, thanks very much for joining me today on Hearsay. |
| MS: | Thanks very much David, it’s been a pleasure. |
| DT: 54:00
55:00 | You’ve been listening to Hearsay The Legal Podcast, I’d like to thank my guest today Marcus Suliman from Saxo Bank Group for coming on the show. Now, we’ve already recommended a few episodes of Hearsay during the course of this episode, you might want to give Episode 6 and our interview with Dr. George Beaton a try for example. But if you’d like some more content about business development, why not try our interview with Chris Gingell and our very own Araceli Robledo about building one’s personal brand. If you’re an Australian legal practitioner, you can claim one continuing professional development point for listening to this episode. Whether an activity entitles you to claim a CPD unit is self-assessed, but we suggest this episode constitutes a practice management and business skills point. If you’ve claimed five CPD points for audio content already this CPD year, you might need to access our multimedia content to claim further points from listening to Hearsay. Visit our website htlp.com.au for more information on claiming and tracking your points on the Hearsay platform. The Hearsay team is Kirti Kumar, Araceli Robledo, Zahra Wilson, Sadhir Shiraj and me, David Turner. Nicola Cosgrove is our executive producer and keeps the Hearsay ship on its course. Hearsay The Legal Podcast is proudly supported by Assured Legal Solutions, making complex simple. You can find all of our episodes as well as summary papers, transcripts, quizzes and more at htlp.com.au. That’s HTLP for Hearsay The Legal Podcast.com.au. Thanks for listening, and we’ll see you next time. |
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