Smells like team spirit

General counsel must establish a legal team’s reputation, as well as its influence, this year’s online In-House and Public Sector Conference heard.

This year’s In-House and Public Sector Conference, on 5 November, focused on teamwork and teambuilding – and the role of the in-house legal function in facilitating this.

Speaking online, Amanda Shantz (MBA director, TCD) said that great teamwork leads to great results.

In-house lawyers need to establish their team’s internal reputation as well as its influence outside of the immediate legal department, she pointed out. The nature of teamwork is dramatically changing in today’s organisations – teams are now far more fluid, with more flexible configurations, and with multiple people on multiple teams working across the business.

‘Team’ can be a verb

Shantz described ‘teaming’ as a means to gather experts from different divisions into temporary groups to tackle current problems and identify emerging opportunities.

‘Teaming’ should be used when the situation is complex and uncertain and requires rapid change and movement. The quality of collaboration will make or break the success of a project, and different teams must be able to interact well with each other, she continued.

Who makes up the team – in terms of age, personality, or gender – doesn’t make a lot of difference to team performance. Instead, research shows that teaming succeeds when three conditions are met:

• Equal contributions from all members. Although not every team member needs to contribute to each and every meeting, this may mean that extroverts need to stop talking, while introverts should be encouraged to contribute to group discussions.
• ‘Empathetic perspective-taking’, or actively trying to step into the shoes of another. This means thinking through the other person’s goals, motives, and needs, and responding in a way that ensures the other person feels capable of meeting their goals and needs.
• ‘Psychological safety’. This is a key predictor of good teamwork, and means being comfortable making yourself vulnerable in front of the people with whom you work.

These conditions lead to high-quality relationships. And that’s important, because having a friend at work is one of the greatest predictors of intention to remain in the organisation, Shantz pointed out: if you want people to stay, give your employees opportunities to connect with other people.

Informal interaction, which leads to relationships being strengthened and good team-building, will be more difficult in the post-virus world. Therefore, teamwork should be supported with easy online coordination and communication, such as an intranet or chatrooms, Shantz said.

Clear lines of communication are incredibly important in our ‘new normal’, and mutual understanding is more likely in a team that is having fun.

Make sure virtual culture mirrors real-life culture, and make webchat platforms easy to use, without too many rules, she advised. Communicate the purpose of the online forum and list the reasons to encourage interaction.

“Collect good-news stories and broadcast them to the rest of the team, and during webinars, require people to turn their cameras on,” she said, describing blank screens as a ‘nasty habit’ that destroys the communication environment.

Teaming with talent

Internal legal departments have historically had a ‘stewardship’ role of protecting the business from risk, but are now being asked to operate differently and to creatively contribute to the business, with a customer-centric mindset.

This stewardship role has led some legal internal functions to be viewed as holding back energy and innovation, because of lawyers’ adherence to regulation and proper procedures.

To offset this, a legal representative should aim to be at business initiative meetings, so that legally correct decisions can made without time being wasted. If ‘legal’ shuts down an initiative that is already up and running, it leads to time wasted, energy depleted, and mood shifting, Shantz said.

That’s why it’s important for legal to be present at meetings, often right from the start. She described this approach as ‘horseback law’ – ride up and make a quick assessment of major decisions from the outset.

That said, a person who always has the ‘right’ answer will shut down idea-generation – humility should be combined with curiosity to get the most out of people. This doesn’t mean that you need to agree with everything: “if you disagree with a proposition, say ‘walk me through the steps of how you got to that conclusion’, rather than dismissing it out of hand,” Shantz suggested.

The bodyguard

Nicholas Donnelly, head of the legal unit at the Department of Justice, said that he sees the legal team’s role as that of ‘dynamic bodyguard’, asking questions that lead to solutions rather than to further problems.

He added that the legal remit is a limited resource, and it is important to manage the expectation that legal should be involved in every meeting – rather, legal should step in and out as required. “If you are there for every meeting, there is a tendency to rely on the lawyer to manage things. Very often, you’re doing a service by not being there, but by standing back.”

Méabh Gallagher, director of corporate governance and legal counsel at Aer Lingus, said the airline had a ‘just culture’, in that aviation safety is about the balance between impunity and a blame culture, to enhance safety and prevent accidents.

“It’s a really fascinating area, for companies to think about what culture they want to foster, that span between creativity and psychological safety, and appropriate consequences,” she said. It’s important to strike a balance in terms of learning from failure, without cover-ups, since legal teams deal with failure all the time,

Privileged position

William Fry partner Derek Hegarty addressed the conference with a guide to legal professional privilege for in-house counsel.

The courts have established that privilege provides a limited exception to the general obligation to disclose all relevant material to the other parties to proceedings. Legal-advice privilege only applies to confidential lawyer/client communications for the purpose of giving or receiving legal advice.

A claim of legal-advice privilege over records of other communications will generally fail, and disclosure will have to be made.

Where legal advice is shared extensively, this can render the confidentiality aspect less clear, so caution should be exercised as to how correspondence is handled, he said. “This can present particular challenges for in-house counsel, particularly those working in larger institutions, as the advice they provide can be circulated to a large number of recipients, which could form the basis of a challenge by adversaries.”

In-house counsel should consistently reinforce the message that the circulation of privileged material must be minimised, and only sent to those with a reasonable requirement for it, Hegarty advised.

He said that there is a misconception in some organisations that, once a document has been sent from or to a legal advisor, then it is protected from disclosure. “That is not the case,” he said and, further, it can be difficult to distinguish between legal advice and legal assistance, which is usually not protected.

Simply introducing a lawyer into an email chain will not render that correspondence privileged, he warned.

Laura McGovern (Competition and Consumer Protection Commission) said that, from a regulator’s perspective, the CCPC can conduct searches of business premises and has broad powers to compel the provision of documents.

Tech solutions

Privileged and non-privileged materials are often intermingled, but tech solutions allow the quarantining of privileged material while investigators probe non-contentious documents.

“At the CCPC we will not accept sweeping or unsupported assertions that a large volume of documents is protected by legal privilege,” she said, while Derek Hegarty advised: “Bear in mind the relationship.”

Hegarty said that organisations should distinguish the right to refuse a request, from whether that right should actually be exercised.

Hugh O’Reilly, legal counsel to An Post, said it is important to mark legal advice, clearly and visibly, as privileged and confidential. “I put the legal advice as an attachment, rather than as part of an email chain,” he elaborated.

Seminar chair Anna Marie Curry of Bord na Móna concurred that forwarding emails to an entire team could be dangerous in terms of confidentiality.

However, Derek Hegarty pointed out that modern business practice involves trainees and legal secretaries, all involved in a chain of communication. Common law also recognises that lawyers cannot conduct all of their business in person, and this can permit the seal of privilege to apply in circumstances where legal business is conducted through intermediaries and subordinates. 

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