In-House Lawyer

5 Reflections

2011-04-06T13:13:00.000-07:00

A round-up of my Reflections from a Contracts Lawyer posts:

Part 1: They're not as prickly as they look
Part 2: Contracts are like the sea, best when they're crystal clear
Part 3: Define your own terms
Part 4: They're alive!
Part 5: There's karma in them contracts

Reflections of a Contracts Lawyer: Part 5

2011-04-06T13:08:00.000-07:00

Reflection No 5: There's karma in them contracts

As a lawyer in private practice I was instructed by a tour operator in relation to a contract put forward by one of their suppliers who provided a service which my client could advertise its holidays on. The contract was the supplier's standard form contract and one of those contracts which just didn't make any sense at all just because it was rubbish. You know the type of thing:

"This contract shall not be binding, sign here if you agree"....and....

"The contract can be terminated at any time for any reason by anyone, but termination of the contract under this clause will not affect the standing of the contract"

Eh? Exactly.

So I spent a fair amount of time tidying up the rubbish, not just making it all work for my client, but also for the supplier such was the nonsense that was in this standard contract.

Its quite annoying when you have to improve someone else's contract, as @BrettTechLawyer will testify:

Fast forward to when I myself was working in-house at a completely different tour operator, but who just happened to use the same supplier's service.

Enter the contract.

And the memories.

And what a pleasant surprise. There was all my corrective drafting, as I had written it, word for word in my previous life in private practice a good couple of years before. Customer-friendly.

Smug lawyer. Karmic contract.

For the rest of my Reflections post, please see: Part 1: They're not as prickly as they look, Part 2: Contracts are like the sea, best when they're crystal clear, Part 3: Define your own terms and Part 4: They're alive!

Panel Time

2011-03-24T05:26:00.000-07:00

Last week I had the pleasure of sitting on a panel at an event hosted by Cancer Research UK, discussing Social Media & The Law.

The panel included myself, Matthew Eltringham the Assistant Editor, Interactive Social Media & Development at the BBC, Robert Blamires an Associate Solicitor at Field Fisher Waterhouse and Yvette Deerness, the host of the event, and Senior Legal Advisor at Cancer Research UK. The event was attended by the Cancer Research staff who man the front line of the charity's social media work.

This charity takes social media seriously! Just take a look at some of the ways you can follow Cancer Research through social media. Key goals are to promote campaigns, support fundraising activity and to provide support to those suffering from cancer. I've said before that the most important aspect of social media is the community which it can create, and so it was no surprise that managing, moderating and supporting that community without falling foul of the law was top of the agenda at the event.

A healthy debate ensued covering social media activity on own sites and third party sites, how to strike the right balance between the benefits and insight which user generated content can offer against managing the risk of liability for defamation or infringement of intellectual property rights, the practicalities of using content obtained through the creative commons system, enforcing acceptable use policies in a fair and consistent manner, managing complaints, and the range of legal issues affecting promotion mechanics.

A fantastic charity with fantastic people behind it who really have their finger on the pulse of social media. If you'd like to donate to the charity or find our more about the wonderful work which Cancer Research carries out, please visit Cancer Research UK.

Speaking Event

2011-02-10T15:47:00.000-08:00

I'm pleased to announce that I'll be speaking at the in-house lawyer breakfast seminar at Pannone LLP, Manchester on Thursday 31 March 2011.

I'll be discussing how in-house lawyers can use social media to its best effect. Other items on the agenda (which I won't be speaking on!) include:

Competition law compliance
Review of recent breach of contract cases
Data Protection Act compliance and update
Bribery Act Part 2
Running a successful due diligence process
Phasing out the default retirement age

Contact law@pannone.com for more information about the seminar.

POST SCRIPT - Due to popular demand, the event will now also be running for a second time on 6 April. Hope to see you there.

Reflections of a Contracts Lawyer: Part 4

2011-02-08T13:43:00.000-08:00

Reflection Number 4: They're alive!

Image is of a Tasmanian Devil. In common with contracts, Tasmanian Devils give a nasty bite if not treated correctly. Unlike Tasmanian Devils, contracts are not best kept locked away in drawers in the furthest flung corners of the earth.

In my younger days, I would often encounter a Project or Contracts Manager who would sigh heavily at the time which it had taken to review a contract, negotiate the detail and baton down a signature, and then triumphantly observe that there was another pile of paperwork which, with a bit of luck and a following wind, wouldn't need to see the light of day again. Instantly belittling the need for the amount of (my hard) work which had just gone into that paperwork.

I've heard it from well-meaning and less-arrogant colleagues before as well, pleased with the work which has been achieved in the contract negotiation "Good job" they say as they file it away the copy document in their bottom drawer (never give away the original document when in-house), along with the contract guide I'd crafted for them to make their life easier and the contract user-friendly , "now we can let that gather some dust while we get on with the proper job". As though the job done (by me) is not proper.

I've never subscribed to that theory. The best Projects and Contracts Managers which I've worked with keep their contracts close at hand and use them as a daily weapon against their suppliers to ensure deliveries are made on time, service levels are met, software performs as it should and (you'll be surprised how much this next one is overlooked) invoices are accurate, so that we're not charged a penny too much for the privilege.

And, as the project which it manages evolves, so the contract should evolve too. A contract is a living thing. And indeed, the Project or Contracts Manager managing that project is best served by keeping up to speed with this evolution.

A case in point:

A perplexed manager once came to visit me, in one hand a hat and in the other a material sample. Let's call the sample, Material A, and lets call the material which the hat is made out of, Material B. Let's call this whole event, The Hat Saga*.

The Hat Saga essentially involved the following (albeit in a much longer, more drawn-out, microscopic and draining way over the course of about 6 months):

"Melanie, the hats delivered are made out of Material B. I wanted them to be made out of Material A."
"Oh no. Do you have a copy of the Contract with you please?"
"Er, no, (for I am only the person responsible for it) have you got a copy?"
I dip into my Contracts Register.
"Yes I have. Lets see, oh yes Schedule 2, "The Matrerial". It says "TBC". What did you eventually agree was the correct material?"
"Material A"
"OK, well lets put a call into the supplier then."
Call to the supplier revealed that, unsurprisingly, they were under the impression that they agreed it was Material B.

The following discussion was had every which way possible consistently over many days and weeks. Me: "Are you absolutely 100% certain you've never agreed Material B?"
"Absolutely. Never"
"Any documents say otherwise?
"None"
"Are you sure?
"Absolutely. Yes"
"Absolutely? Our hats are very precious to us, they are very expensive. I'm about to commence proceedings as we have spent so much money on these entirely incorrect hats. That's serious and expensive stuff. It will be embarrasing if we're wrong."
"Absolutely. Yes."

Some cost, time, effort and energy later:

Manager approaches my desk "Erm, Melanie, could this be relevant?"
"I don't know, let me see. Oh look its a document with Material B attached to a letter from the supplier asking if Material B would be a suitable alternative and which you've counter-signed. Yes. I'd say that's relevant."

The error in this particular instance was that this correspondence which changed the contract was never logged and associated with the contract by the manager. Ironically, clearly the hat supplier hadn't saved a copy of the relevant correspondence either. Frustrating to say the least (I do remember collapsing on my desk with my head in my hands for quite some time afterwards).

So, what was the point of this post? Oh yes, contracts are alive, please check in on them once in a while.

*subject matter altered to protect the innocent.

For more of my reflections check out Reflections of a Contracts Lawyer: Part 1 Reflections of a Contracts Lawyer: Part 2 and Reflections of a Contracts lawyer: Part3

Say what?

2011-02-08T12:48:00.000-08:00

I've recently been reminded of how individual companies and organisations not only carry their own individual corporate image and corporate culture, but also their own corporate parlance and turn of phrase. But can this choice of parlance also be a reflection of the corporation which utters it?

Image copyright of www.savagechickens.com

When I joined my current employer, I was very quickly introduced to the concept of "bandwidth". No, I wasn't just a late starter when it came to getting online, my colleagues would be commenting on their capacity to carry out a project within a particular timescale. It's still used a lot today and I love this expression! It's completely digital. Which is good because Latitude is of course a digital company, and the company name is Latitude, and latitude is a bit like bandwith. Sort of. You get the idea.

Back when I worked in one private practice firm, I wasn't doing my job if I didn't have "shedloads" to do at any one moment in time. A sub-conscious reflection of the name of the firm, Eversheds, I wonder?

Working in-house at a tour operator, colleagues were always polite enough to check if I was "snowed under" before asking me to do any work for them. Actually, I was never snowed under, I always opted for MyTravel's winter sun holidays instead.

At a different firm, not a day went by when I wasn't invited to a "catch-up". No link between the company and the phrase here, just genuinely nice colleagues who had a lot to catch up on after a day spent "picking all of that low hanging fruit".

So, why have I recently been reminded of this link between parlance and organisation? Well, my current employer is now part of a larger group. It has been for a couple of weeks. Within that same time I've been asked a question which I've never been asked before. On 3 separate occasions by 3 separate people. "So, if we cut you down the middle, what would we find?"

Gulp.

I'll continue to watch the link between companies and their choice of phrase more carefully, but for now I'm just relieved that my new colleagues want to get to know me so well!

The In-House Lawyer Meets The Lawyer

2011-02-01T13:28:00.000-08:00

Last Wednesday I received a call from The Lawyer magazine asking me for some time for an interview to appear in their in-house lawyer profile section. I was over the moon to be asked to feature in this prestigious publication, and even more excited that they sent a photographer round to Latitude HQ for a photoshoot the very next day. All very showbiz indeed.

The photoshoot co-incided with 1. stage 1 of a completion meeting at Latitude and 2. much more stressful than any completion meeting as I'm sure you'll all agree, a bad hair day, making it completely and utterly impossible to gaze into the distance with an air of nonchalance.

So huge thanks to The Lawyer magazine, and in particular Joanne Harris, for the write-up quirkily entitled Tweet Shop which appeared online just a few days later.

What LinkedIn Maps tells us about Lawyers

2011-01-27T13:10:00.000-08:00

LinkedIn has introduced a quirky new tool for users to visualise their connections and professional network, its called LinkedIn Maps. I've created my own LinkedIn map here:

So what does my LinkedIn Map tell me:

Well, firstly that the LinkedIn Maps gadget is pretty intelligent! Within seconds it created this map for me and categorised my networks efficiently and...erm...categorically.
The 2 main hubs of my network (the orange hub and the dark blue hub) are connections I've met through industries I've worked in as an in-house lawyer, those being digital media and travel respectively. These hubs are full of people I've met in business, in industry, non-lawyer contacts. These people use LinkedIn big time.
Despite being a lawyer myself, knowing lots of lawyers and working in private practice for a good proportion of my career, my lawyer connections from private practice using LinkedIn only account for a sprinkling of my LinkedIn contacts, the pink hub and the yellow hub (spot them if you can). Now, on LinkedIn, I hunt for colleagues and business acquaintances I've met in all walks of life in equal measure, so this tells me that, as a breed, the legal industry is significantly under-representing itself on LinkedIn.
Lawyers I've met solely through the power of social media over the last year, based in both the UK (the green hub) and overseas (the purple hub), and who I've connected with on LinkedIn now out-number my "in the flesh" private practice lawyer connections from over many years who've connected on LinkedIn.
As a rule, I used to only connect on LinkedIn with individuals I'd physically met or done business with, but social media threw that rule out of the window for me. I'll now connect with individuals I know only through social media channels even if I haven't met them in the real world, where I know there's a beneficial professional relationship, or even if I just like them. However, I still won't connect with individuals who I haven't met with, if I don't know them through a social media channel. Lawyers, if you're not using social media and your competitors are, they have the opportunity to up-turn your established client relationships.

So, in summary: Lots of people use LinkedIn. Not many lawyers do. Lawyers who do use social media are rapidly stealing a march on their counterparts who don't. In terms of making connections and cementing professional relationships, social media works.

Legal Village

2011-01-24T13:26:00.000-08:00

A quick mention and thank you to Legal Week who are picking up some of my selected blog posts to feature in their Legal Village, an online community of blawgers sharing their random, and sometimes even serious, points of view for the entertainment of lawyers on coffee breaks across the nation.

Image copyright of brewbooks on Flickr, and which features Legal Grind Coffee in Santa Monica.

Twitteratigate:The tide has turned

2011-01-24T13:17:00.000-08:00

Following on from my post below, it seems that Twitter is causing a stir amongst lawyers in more ways than one.

It was only October of last year when Legal Week brought social media use amongst lawyers into the mainstream. For more on that, see The next big thing: is the social media tide turning? If you look at the comments against those original Legal Week articles you'll see there was discussion brewing early-doors about who should feature in reviews of the legal social media scene and for what reason.

Fast forward from October to the present day, and a relative social media scandal has exploded. A scandal so deep it's even worthy of the accolade of a gate. Twitteratigate. The whole story of which can be told no better than Brian Inkster in The Time Blawg.

Finally lawyers are getting it. This is what makes social media work: the ability to make it personal, share your perspective, explore what works and what doesn't, mould the message and the media which carries it.

I do indeed believe that the tide has turned.

The Times Law Top 10 Legal Tweeter

2011-01-24T12:44:00.000-08:00

I'm proud to be included in The Times Law Top 10 of legal tweeters! What an honour.

The article is behind a paywall, so I had to pay a small fee to see my name in lights. Why its time to open a corporate Twitter account celebrates the rise of Twitter amongst the legal profession and The Times has chosen to describe me as "a social media evangelist". This headline characteristic is a reflection of how rapidly the emphasis of this very blog stepped away from a log of legal events affecting my industry to that of a lawyer experimenting with how lawyers can use social media to its best effect. A year ago, very few people had heard of the in-house lawyer at Latitude, but now I receive a regular flow of professional opportunities which wouldn't have come my way previously and I'm routinely asked for comment on my new niche. I like to think I'm proof of what social media can do for you as a lawyer, so I'll continue to encourage you all to Play the Advantage it has to offer!

The Times Law Top 10 roll of honour comprises:

@Inner_Temple: Provides the latest resolutions plus links to selected legal headlines from across the press
@Charonqc: The very funny alter ego of Mike Semple Piggot, polymath legal blogger, writer and artist.
@richardsusskind: Renowned legal IT specialist, academic, writer and Times columnist
@davidallengreen: Insightful media lawyer, blogger and legal correspondent for theNew Statesman
@RichardMoorhead: A legal academic and blogger specialising in writing about legal services and access to justice
@in_house_lawyer: Social media evangelist who also tweets regularly on issues around commercial and digital law
@copyrightgirl: Often responds directly to inquiries from followers on issues around copyright law and intellectual property
@legalfutures: Very good on matters of compliance and competence for lawyers
@LegalBizzle: The irreverent and personal thoughts of a lawyer, although on professional matters
@TheNakedLawyer: Solicitor-turned marketer often tweeting on how lawyers can get the most out of social media

Well done everyone who features.

Reflections of a Contracts Lawyer: Part 3

2011-01-06T05:53:00.000-08:00

Reflection Number 3: Define your own terms

Image is a snapshot courtesy of Wikipedia.com

Back in the world of a corporate trainee, I sit in the partner's office. Alas, the office is devoid of cacti, and the building has no lake outside of it to speak of, but the odour of OCD does permeate the air. I've produced a mighty fine piece of written advice. The partner has other ideas and sees fit to draw lots of red patterns on it. An hour long lesson in "consistent style" is endured: the basics on use of defined terms are drummed in to me, the benefits of tables and schedules are shared and more peculiar preferences are revealed such as line-up your paperclips symmetrically, and methodology for the production of Bible spine labels....

Later that week, same firm different partner, I produce a mighty fine contract (demonstrating the previous lesson in consistency). The partner has other ideas and sees fit to draw lots of red patterns on it. An hour long lesson in "this way" is endured: put your defined terms in a schedule this way, separate out the term and termination clause this way, do it "this way".....

Out of traineeship, and as a fully-fledged solicitor I'm asked to review a supply contract for a senior associate with a rep for pickiness. This solicitor was not for quitting. Or being picked on. And certainly wasn't enduring any more red patterns or hour long lessons. An all-nighter resulted in a philosophy of a review and a mighty fine resulting letter to client. Picky senior associate looked.....impressed. That day has been recorded in my memory as a VC day (victory in contracts), no contract or piece of written advice has ever flummuxed me since.

But looking back on these lessons: yes, I'm hot at defining terms but the rebel in me never lines up my paperclips symmetrically; my contracts hang together just fine but I never put my (hotly) defined terms in a schedule and my terms and termination clauses can usually be found in the same place; and although my contracts contain a lot of clever quirky drafting, I've never needed to provide, or be provided with such a granular piece of written advice as I did on VC day.

I've developed some deft drafting tricks of my own over the years but I also own the right to "take a view" when what is really needed with a contract is to get the deal done. Yes, I've learned from some great teachers (and I make sure that the lessons I've learned have been passed on to those I've trained too), but my contracts are my style: I live with them, advise on them and chew over them, I need to know them inside out, and I can only do that if they've been created my way.

You see, contracts aren't just a reflection of the deal which has been struck, they're also a reflection of the lawyer who creates them.

For more of my reflections check out Reflections of a Contracts Lawyer: Part 1 and Reflections of a Contract Lawyer: Part 2.

Reflections of a Contracts Lawyer: Part 2

2011-01-05T02:51:00.000-08:00

Reflection number 2: Contracts are like the sea, best when they're crystal clear.

Image courtesy of Nevit Dilmen under the terms of theGNU Free Documentation Licence Version 1.2
Fast forward to 2002. Location: an open-plan office of one of the Big 4 tour operators in the UK in the North West. Upon the approach, one stumbles upon a lake filled with Canadian geese, and when entering the magnificance which is the office, one is greeted by statues of Noah and modern artwork.

OK, OK, I'm in the old Co-op building in Rochdale. Noone said being in-house was glam (but the lake bit is true).

However, the tour operator which I worked for clearly did a lot of business abroad where the majority of its suppliers were based. Everyday I would see contracts land upon my desk for review which were governed by the laws of the US, Switzerland, Greece, the Maldives, Jamaica, Cuba, France, the Balearics or India. You get the sunny picture.

But I'm an English law lawyer, and haven't been provided with a budget for a second opinion on these contracts from a lawyer conversant with the laws governing them or the jurisdiction to which we might be summoned in the event of dispute.

Hmmmm....how to save one's backside? My risk-management technique: If you don't know about the law which will govern the dispute, best not let a dispute arise in the first place. The only way to do that with a fair degree of confidence is to make sure that the commercials within the contract are absolutely crystal clear, so that there can be as little opportunity for a dispute as possible.

To be wholly accurate, this risk-management technique should be par for the course for all contract reviews regardless of the governing law, but I always find there's nothing quite like the threat of the jurisdiction of Vietnam to focus the mind on not letting a dispute arise in the first place (although one can be forgiven for being less risk-averse with those threatening jurisdiction in Barbados for example, just my own little rule that one, not right for every one).

I'm not saying anything new when I share the general rule that the process of dicussing expectations at a pedestrian level does in most situations elicit gaps or areas in need of further discussion with the other party. This of course is generally helpful all around and a good thing to do before any contract is signed, as it goes towards the resulting project running much more smoothly and any obstacles seen well in advance.

Of course, the process which you need to go through with your fellow colleagues to achieve crystal clear clarity on their expectations of contract performance can very greatly depending on who you're dealing with - but more on mind-reading another day.

For more reflections, see Reflections of a Contracts Lawyer: Part 1.

Reflections of a Contracts Lawyer: Part 1

2011-01-04T02:12:00.000-08:00

My number one rule is when it comes to dealing with contracts is that they must reflect the deal which has been agreed. Pretty simple really, but its a guiding principle which has seen me well over the years of drafting and reviewing, what must now be well over a thousand, contracts.

To start the year, I present to you a mini-series of blog posts of my reflections on being a contracts lawyer.

Reflection Number 1. They're not as prickly as they look

The year: 1996. Location: a cacti-filled office in an electronic and manufacturing engineering establishment in Leicester.

A colleague hands an intrepid trainee her first contract for review. For the avoidance of doubt, and in case he's reading, said colleague is not her boss of the time, nor the owner of the cacti office for that matter.

Said colleague is a non-lawyer lawyer. A non-lawyer lawyer is not to be confused with a wannabe lawyer.

A non-lawyer lawyer is an individual who has no legal training but is involved in legal activities usually because their original function in the company somehow creates an opportunity for said non-lawyer to get familiar with some legal concepts and become relatively proficient in them. Thus they are accepted into the lawyering fraternity as they talk our language. Non-lawyer lawyers often have, but are not limited to having, insurance, contract manager, or accounting style backgrounds.

A wannabe lawyer however usually has some tenuous connection with the law, for example a friend of a friend of theirs studied law at university, they walk past a law firm on their way to work, they're in the process of selling their house and therefore dealing with a solicitor presently. Nothing wrong with all of that of course, except when that link is regarded as a legal qualification. Similar to the same legal qualification which took 3 years of University study, a further year LPC, a couple of additional years of traineeship. Oh yes, and all the PQE too. For the avoidance of doubt, that link is not a legal qualification. I digress. Much, much more on wannabe lawyers another day.

But for now said non-lawyer lawyer colleague, provides said trainee with a set of MF1 Rev. x standard terms and conditions with the cryptic message, "see what ya' make of them then". I'm sure there was a haughty laugh afterwards, but I could be embellishing for the sake of a dramatic post.

Anyway, MF1. Lets just say that its not so much a contract but a way of life, nay, a philosophy within the engineering world.

It really was a novel of a contract. As I sat in my B&B that evening (I recall it has western-style saloon doors to the en suite, but did a mean scrambled eggs for breakfast), tears actually rolled down my face as I pondered the document which lay before me. None of it made any sense whatsoever. And looking back, no wonder. A contract document on its own, without a scenario to which it must be applied, without a deal which it must reflect, and regardless of the complexity of the drafting it contains, does indeed make no sense. I was right.

After a tortuous weekend of tearing out my hair at this anonymous document (which I felt I had to have a view on as I'd just come out of law school and it was "expected"), my boss (the owner of the cacti, not the one who gave me MF1) kindly introduced me to the company's "Standard Responses to Standard MF1 Contracts".

Epiphany.

No matter how prickly their first impressions, there's rarely anything in a contract which someone hasn't come up against before and a suitable response is always waiting in the wings.

I am Still Here

2010-12-21T02:42:00.000-08:00

I am still here.

It's just that there are only 24 hours in a day, and while that's enough hours (just) most of the year to work, run a family and engage in social media experiments, in the run-up to Christmas with the prospect of 4 families around 1 table and a demanding 5 (nearly 6) year old to satisfy on the present-front as well as the usual year-end activities and projects on the work-front, well, I am only human (and a specialist plant of course) and things slip.

Fear not, the in-house lawyer remains committed to (a) being an in-house lawyer (b) social media and (c) fusing the two together in pursuance of this blog.

A Merry Little Christmas post will be with you before the Big Day itself, and normal blogging service will be resumed once the festivities and stress are over.

Karma Communities

2010-11-17T13:16:00.000-08:00

No, I haven't gone all hippy-chick.

I've been reading Twitter Power by Joel Comm lately. In fact, thats incorrect. I'm a 2.0 reader, so I've been listening to the audiobook.

Image is Twitter Power 2.0: How to Dominate your Market One Tweet at a Time by Joel Comm, Gildan Media Corp, presented by Audible.co.uk

Joel Comm gets to the nubb of social media in the first chapter of his book where he describes traditional media publishers as the few who broadcast their news to the many, as against the new social media phenomenon where the many have the power to communicate the news, views and experiences to each other, resulting in the creation of communities with a common interest.

To me, the community is the most important aspect of social media. And because there are little, if any, barriers to entry into the social media world, its much simpler to become part of your chosen community and influence that community than it is to become part of a community in the offline world, such as, say, falling in with the cool kids at high school, the mums at the school gate or the clique of personnel who might have your CEO's attention. Social media is a great leveller.

But for a community to operate it needs to communicate. Communicating means listening as well as speaking, it means building relationships. You'll read a lot about social media being all about communication and relationship building, but once you truly understand that it actually is, it is an epiphany moment.

And so I was surprised today to come across a tweeting lawyer who followed zero people. Why would you join a social media community and not be part of the conversation? Even if it your goal is to promote yourself as a lawyer or a firm, how can you achieve that goal effectively without monitoring the conversation around you and understanding the impact which your broadcasting/marketing is having?

As an in-house lawyer, through social media you have the ability to become part of a number of communities which feed into your world: the community of the industry which your employing company operates in, or those of your company's suppliers or clients, the legal community, your specialism within the legal community, other in-house lawyers, legal service providers. Communities are being built, and the members of these communities are being generous with their information and advice. In-house lawyers can benefit from this: pop a question into your Twitter status such as "Does anyone know whether there are unfair dismissal rights in Germany?", and you'll receive several tweets in reply from practising employment lawyers pointing you in the right direction. The more you give back to the community, the more you'll receive from it too. There's a lot of good karma in circulation on social media sites.

Beware the Digital Trailblazer

2010-11-16T10:49:00.000-08:00

On the Inforrm Blog, today's post, Privacy and the Right to Oblivion, was extremely thought-provoking.

I've left a comment against that post, but what I wanted to say here was that I really do like the imagery which Jeffrey Rosen conjures of a digital trail. We live in an era where our trails are recorded digitally and my view of that is that we're fortunate to do so. We have the ability to leave our mark. We are digital trailblazers!

Yes, we have the right to manage those trails carefully, but not necessarily retrospectively. Online or offline, not all mistakes can be erased. So, choose the trail which you wish to leave carefully, before you make it.

Social media gives us all the opportunity to create, manage and promote our own trail but, as they say, with power comes responsibility...to yourself. With many things in life, over-regulating tends to hinder not help; common-sense is usually the only rule required.

A Halloween Hoot

2010-10-31T16:49:00.000-07:00

Welcome to the 31 October 2010 edition of ukblawgroundup, and the fourth in the series of round-ups initiated by Michael Scutt to promote blogging lawyers in the UK.

The theme of this edition is, spookily enough, what with the date and everything, Halloween; the origins of which date back to the Celtic festival of Samhain which celebrates the end of the "lighter half" of the year and beginning of the "darker half", where the border between this world and the other becomes thin enough to let the spirits pass through, and when we wear costumes and masks to ward off evil.

But I live in the countryside, and what this time of year means to our family is the harvest from the local farmers. And at Halloween, of course, we take great delight in carving up some of that harvest. I was most proud of my local farm in Little Budworth, Cheshire, which this October has just harvested over 3,000 pumpkins:

Image copyright of The Hollies Farm Shop

Halloween festivities are embraced with much more vigour on the other side of the Atlantic, and when Michael started this UK blawg review at the beginning of 2010 he observed that lawyers in the UK hadn’t embraced social media nearly as much as their American counterparts either. And what a difference (not even) a year makes, because I’m now writing this edition against the backdrop of Legal Week’s recent analysis of the UK blogging scene. It’s article, The Geek Shall Inherit, introduced the audience of the mainstream legal press to the lawyers who operate in the online world, looking back at history of the UK legal blogging scene and presenting both some established bloggers and recent entrants.

As insightful as the article was, and that one piece of journalism probably succeeded in bringing forward the legal digital mind-set by approximately 5 years, what it was unable to do was mention every credible UK blawgger, and there are few. Some additional players are mentioned in the commentary against the article, so do take a read of both the article and the commentary if you’re looking to increase the number of blawggers on your watch list or your RSS stream. What the omissions do tell me though is that blawg round-ups such as this one are extremely important to spread the word and to promote the profiles of all of the great blawggers in the field, because by giving each other a pat on the back from time to time, we can help this community grow.

The Law Actually Blog knows a thing or two about patting its fellow blawggers on the back. Penned by The (mysterious) Michael (whom we only know as an LLM and LLB student working in-house for a telco company) this quarter it successfully ran its annual "Blawggies", the awards for, well you guessed it, blawgs. As well as the Blawggies Results, you can get to know the blawgeratti by reading the regular “A Law Actually Interview with…” series of posts. Take a look at the most recent, Law Actually Interview with Charon QC for the type of thing which you can expect. You'll also become very familiar very quickly with tech law developments and generalist legal observations too such as Council Goes Bonkers over Conkers, a scenario observed with the observational dis-belief that a fellow in-houser can truly appreciate. Speaking of which, have you had the good fortune to stumble upon Legal Bizzle? An anonymous in-houser The Biz, who in his own words has been "saving your ass since 1999", just tells it like it is. Check out 5 Words I Hate to Hear, and What does Success Look Like? to see why.

Another round-up we saw this quarter was the FT’s Annual Survey of Innovative Lawyers, but I was disappointed that it didn't feature lawyers who are taking strides into social media as part of their practice strategy, however, to rectify the position, we also saw the 360 Awards, at which Paul Hajek received the award for most effective social networker. Paul is a regular on the UK legal blogging and Twitter scene, and the Clutton Clox Blog succeeds where a lot of law firm blogs fail: it's kept bang up to date and presents a well-rounded perspective of what the firm is about, its work and its people.

The reviews kept on coming this quarter, and one which caught my eye was from Linda Cheung, CEO of Connectegrity. In September, Linda reviewed the Top 100 Law Firm Websites in Pictures. No spoilers here, you'll have to check out her blog for the winner.

Image copyright of Tyson Moore, via Flickr, depicting some spooky fence ghosts

The telling of ghost stories and viewing of horror films are common at Halloween. This quarter has seen its fair share of legal horror stories and frightening tales too. Most of which, it has to be said, have emanated from the demise of Halliwells. So may I take this opportunity to present Peter Blair, Director of Mar-aon Consulting which specialises in Risk, Operations, Strategy & Communications in Law Firms, and his eminently sensible Pitch for Common Sense, dealing with issues ranging from Responsibilty and Leadership to Keeping Up to Date. Whatever your profession or specialism there is a multitude of "makes sense" opinion and information on Peter's blog.

More gremlins in the machine this quarter, but thankfully with much less consequence. Brian Inkster summarises his encounters on the Inksters Solicitors blog in IT Problems at Trainee Summer School. Inksters are officially Cool Lawyers recognised for the example which they set in social media, and I'd agree, like the Clutton Clox blog, Inksters keeps a refreshing balance of posts about the firm's work and it's people.

The above image is of Vice President Dick Cheney's Labrador retrievers Jackson, left, and Dave, right, prepare for Halloween, as they sit for a photograph at the Vice President's Residence at the Naval Observatory in Washington, D.C. Jackson is dressed as Darth Vader, Dave is dressed as Superman. (Random legal copyright fact: This image is a work of an employee of the Executive Office of the President of the United States, taken or made during the course of the person's official duties. As a work of the U.S. federal government, the image is in the public domain.)

The practice of dressing up in costumes and begging door to door for treats on holidays dates back to the Middle Ages. ‘Guising’ as it became known, was prevalent in Scotland and Ireland in the 19^th Century, and became extremely popular in the

in the 20^th Century. Rather aptly, blogging also allows lawyers to take on a disguise where their be-devilled alter-ego can roam free.

Guising with expertise is the

’s very own Baby Barista who provides us with a fictional "worm's eye view of the English Bar" with unparalleled eloquence and wit which has been observed and applauded for some time, however hot on his heels is a the new and superb Magic Circle Minx providing readers with a fictional account of the life of a trainee solicitor at a London Magic Circle Law Firm, her blog is now a regular on my RSS list. Another esteemed blawgger who makes no bones about his devil-may-care blogging style is the wonderful Charon QC who this quarter has had me hooked on his (fictional?) Muttley Dastardly LLP series.

Taking on a guise, but not one so scary, is iPad Lawyer documenting his journey as a lawyer with THE piece of kit of the quarter. The iPad Lawyer explains step by step how to use the apps and software for a lawyer's best effect and productivity, and his excellent commentary in iPad workflow - some thoughts is a great example of his hands-on, explanatory approach. The man behind the mask is Jon Bloor of Peninsulawyer fame who this quarter has also taken a look at Go Compare the Money SuperMeerKat (or why I don't buy Wigster) providing his views on the recent announcements by Wigster and others of the launch of price comparison sites for solicitors.

Image copyright of Shane Gorski, via Flickr "no one knows who lives here but there is proof of life at this property"

There is a tradition of decorating a haunted house at Halloween, filling it with eerie music, cobwebs, spiders, zombies, mummies, jack o' lanterns, devils, witches and of course the witch's cat. One of my favourite cats is IPKat, aka Jeremy Phillips, home-grown but internationally recognised for his passion of all things IP. Jeremy and his team provide regular consistent and credible work and I've personally read Jeremy's blog since I discovered it back in 2003, immediately capturing my attention for its valuable insight in my practice area. In September, I was impressed further by the excellent live-blogging series, Handbags at Dawn 1, 2, 3 and 4, reviewing an IP & Fashion conference - yes, live blawgging, as it happened, brilliant. The team really do live, breathe and eat IP; see The Advertising Wars of Kelloggs Cornflakes for evidence of this assertion.

Other animals featuring in this blawg round-up, but not seen so much at Halloween, include:

CyberPanda, aka Asma Vranaki, who is a Doctor of Philosophy of Law at Oxford University. Asma's blog posts and tweets are brimming over with information and considered opinion tackling issues such as Facebook: the Privacy Backlash and Pan-European Copyright Laws all helpfully summed up in a Cyber-Law News Daily;

and

Technollama, aka Andres Guadamuz, a lecturer at the Edinburgh School of Law. This month I enjoyed reading his discussion on cyber-regulation in the well-penned post Is it time to take Anonymous Seriously? Readers of Andres' blog are always guaranteed an enlightening read.

Staying true to her identity, and founder of another technology blog, is Shireen Smith at Azrights Solicitors. Shireen's posts are bang on the money for her target audience and I always benefit from a legal brain refresher when reading her posts. She has a knack of making her specialism a subject which everyone should take an interest in: Facebook Places, Privacy and Implied Consent and Rejecting Anonymity, Making Authors Accountable are both good reads whatever your specialist practice area.

Stepping away from technology blogs, and back full-circle to the founder of the UK blawg round-up now. Michael Scutt's passion for blogging is evident as he wears two blawgging hats, one for Jobsworth, Employment Law Explained, and the other for There May Be Trouble Ahead, Legal Services De-regulation. Jobsworth is an essential blawgging read for anyone in practice remotely affected by employment law (and, lets face it, who isn't?). His analysis of the Equality Act in The Equality Act: Here at Last ? Worth the Wait? (and the earlier posts referred to therein) really get to the nub of the issues underlying why and how the legislation has come about to provide a much fuller and contextual picture, but he also does the practical stuff too, see Why Employers Shouldn't Ask Pre-Employment Health Questions: Equality Act 2010 #2 for the answers to the "ok but what does it mean I actually have to do" questions. In There May be Trouble Ahead, Michael has himself well-positioned as a thought-leader amongst the profession challenging views of what de-regulation will mean for it. His September post, More on Branding, questions how much a law firm is prepared to invest in a franchised brand.

I couldn't let the opportunity of this blawg round-up go by without mentioning Mark Gould, with a background as an academic and lecturer in Competition Law, Mark is currently Head of Knowledge Management at a leading law-firm. His blog, Enlightened Tradition explores a rational approach to organisational learning and knowledge management. He draws inspiration from many sources and his blog posts pay homage to his academic background being clearly well-researched; a shining example is his recent post Corporate Professional Spectrum: Law Firms, KM and the Future.

And last but not least, Jennie Law, a law librarian in Edinburgh. I've had Jennie's feed on my RSS stream for a while now, and her light-hearted "say what you see" approach is perfectly summed up in How to Make a Librarian Happy.

Image copyright of Anon, via Flickr

And now, the witching hour really is upon me, I have work to do! Happy Halloween readers!

5 More Reasons for In-House Counsel to Use Twitter

2010-10-29T04:00:00.000-07:00

I attanded a law firm seminar yesterday evening discussing social media for in-house lawyers. It was an informative and very well-received event, yet I was amazed to find that save for myself and the presenters, nobody else around the table had ever used Twitter.

Twitter is so ingrained into my working day, I thought everyone else was using it too, but it appears not, and more evangalising is required by the rest of us! So following on from my previous 5 Reasons for In House Counsel to Use Twitter and 5 Twitter Best Practice Tips for In-House Counsel, here are 5 more reasons for in-house counsel to use Twitter:

1. Community: Twitter is highly effective at creating communities. There's a growing legal community on there, and we're already starting to see sections of that community specialise, in particular lawyers focussing on technology, IP, IT cloud computing, and, of course, social media are growing and prospering by creating communities within the larger legal circle.

Being an in-house lawyer can be a lonely experience professionally, especially if you're sole in-house counsel in, say, a firm full of engineers or scientists. So, lets face-it, some daily legal banter wouldn't go amiss. Twitter allows you to become part of a community very easily, and the more you put into that community, the more you'll get out of it.

2. Easily incorporated into your day: One of the reasons I've heard for lawyers not getting involved in social media or twitter activities is because they can't find the time. Well, that's no excuse in my book. With Twitter clients such as Tweetdeck and Hootsuite , its so simple to have Twitter running unobtrusively on your desktop as you're completing other tasks; and very quickly you'll become accustomed to spotting the avatars or hashtags of your favourite follows as your tweetfeed pops up in the corner of your screen.

3. The Next Generation: Social media is already the communication choice of the next generation. Your business is going to have to prepare itself to accommodate this sea-change in communication preference, and if you want to communicate with the next generation of lawyers, its a tool you'll have to get to grips with pretty quickly too.

4.140 characters only: Twitter helps you to hone your writing skills. You need to get your point across in 140 characters or less. As an in-house lawyer in commerce and industry, this skill is particularly valuable where you're dealing with individuals not interested in the legal niceties, but who just want to get to the point.

5. Fun: As my good tweeting companion and fellow in-house lawyer @junecasalmir quite rightly points out, tweeting is actually quite good fun, its enjoyable to meet, network with and read tweets from some great people who you wouldn't have the opportunity to meet in the real world.

Have I convinced you yet?

The event I attended yesterday evening was hosted by the wonderful @stevekunkewicz and @paulcarruthers (to whom I thank for the insight into my point 3 above).

The Next Big Thing: Is the social media tide turning?

2010-10-21T14:26:00.000-07:00

Today's Legal Week has focussed on the use of social media tools by the legal profession. It ran two pieces today:

New ideas in Law: The geek shall inherit... a wonderfully well researched piece of journalism by Alex Aldridge summarising the history of the legal blogging scene at home and abroad and introducing the new, rising talent in the UK blawgosphere. I was thrilled and honoured for this very blog to be included in the article, quote:

"Then there's In-House Lawyer, a more serious, non-fictional, yet still distinctly irreverent insider account of life as an in-house lawyer, authored by Melanie Hatton, a former Mayer Brown lawyer who is now head of legal and company secretary at Latitude Digital Marketing. In it, Hatton reflects candidly on issues facing in-house counsel, with recent posts including a piece drawing attention to the friction between in-house legal departments and sales teams in companies and an admission that she always leaves anything litigious to a Friday, the day of the week when "opposing counsel seem much more inclined to strike a deal with less antagonism".

Irreverent and candid. Heck, I hadn't realised! But I can roll with that. Alex's article is a suberb blawg round-up, culminating in his blawger roll of honour list. It makes my job of hosting this quarter's ukblawg round-up next week quite a challenge!

Tweet Disposition: the tech-savvy lawyers making social media work for them is written by Sofia Lind and introduces a selection of in-house and private practice tweeting lawyers. I was over the moon to be mentioned in this article along with other tweeting companions I know, and some which I didn't but I no doubt soon will. Sofia's article also takes a look at blogging and Linked-in and interestingly identifies what the Top 10 law firms are doing (or not doing) about social media, confirming what I suspected, i.e. that its the individuals, independents and smaller firms in the UK which are getting to grips with social media a lot more quickly and effectively than the larger firms.
These two articles have brought the UK's legal social media scene to the fore, their angle very much that social media is here to be embraced and not policed, and I predict we'll now see the tide changing with more of our profession surfing the social media waves.

Cartoon courtesy of Geek & Poke

SAD Story

2010-10-20T12:51:00.000-07:00

Yesterday on Twitter I was amused to read this exchange:

The discussion was with reference to the latest blog post by Magic Circle Minx.

It conjured up imagery of tribes of albino trainees working underground digging for gold. Personally, I'd opt to take a day or two holiday rather than rely on my standard-issue SAD lamp, but needs must in the magic circle it seems.

It also reminded me that when I was a trainee, all I was issued with for working late was the code to set the alarm and free access to the kitchen goodie drawer.

Dotted and Spotted

2010-10-19T13:51:00.000-07:00

I just discovered that my previous "join the dots" blog post has been spotted by Law.com's Legal Blog Watch! Their take on my earlier post is called: Pursuing Unrelated Interests Can Help Lawyers Connect the Dots in their Legal Careers too.

Couldn't have put it better myself.

In the Mix. Creative Law?

2010-10-11T13:29:00.000-07:00

In my recent 22twts interview I was asked:

My advice was inspired by a quote attributed to Steve Jobs who, speaking at the Stanford University 2005 graduation ceremony, said "You can't join the dots looking forward, you can only connect them looking backward. So you have to trust that the dots will somehow connect in the future".

You can find his full address here, but the point which fascinated me in this speech was that when Mr Jobs was at college, he actually dropped-out of the course allocated to him and instead chose to follow his intuition and curiosity and take up a calligraphy course of study, the learning of which bore no practical application in his life at all. 10 years later when working on the design of the first Macintosh computer, he recalled his calligraphy learnings and fed them into the creative design process which resulted in the development of the Apple Mac with its signature typefaces, typography and fonts. An example of magnificent creativity.

Simply put, the more broad your experience and interests, the more opportunities there are in your life to connect the dots and bring a fresh and creative perspective to the table.

Law is no different, and some would argue more in need of creative energy: the best patent attorneys usually have a background in science and chemistry and a passion for photography might fuel a leading copyright lawyer's quest to represent image right-holders.

For me personally, a 'mumpreneur' moment during my maternity leave back in 2005 led me to develop and optimise a website for pregnant women. What is this to do with your legal blog, I hear you ask?

Well, 3 years later I found myself interviewing for the position of in-house lawyer at a digital marketing company quietly confident that I knew, more than any other candidate, my SEO from my PPC, and my back-links from my HTML. What's more, my experience during an 'off-track' year as a PSL responsible for training lawyers in a commercial law firm, rather than practicing law with them, continues to feed into that element of my present job responsible for managing the Training & Development at my company. It all adds up.

In my view, its easy for lawyers to pigeon-hole themselves as specialists, one trick legal ponies; but I'd like to challenge your specialism and encourage you to take your legal wisdom, add a pinch of a personal interest and pour out a creative contribution to your workplace.

Branded Part 5: Take a Look at Facebook

2010-10-04T15:27:00.000-07:00

A tweet caught my eye today, "What's the next big thing in social media for lawyers?". Samantha Collier's blog, Social Media for Law Firms, claims the answer is now Facebook because ultimately "everyone under the sun now finds you on Facebook".

I know some professionals will balk at the idea but I'm inclined to agree with Samantha, not least because of Facebook's powerful search-engine like presence, although my view is that she is way ahead of the curve here; a lot of lawyers I know aren't even on Facebook personally yet and a few more have just the one solitary connection on Linked In.

However, a quick search on Facebook will reveal that there are already a modest number of "solicitors" and "law firms" with a professional Facebook presence and, indeed, a fan base.

But this blog isn't about law firms, its about in-house lawyers. A quick Facebook search against "in house lawyer" revealed:

For the avoidance of doubt, this is not me.

Sensing competition, I have upped my social media strategy game. This is me (note the all important capitalised 'H' in 'House'):

So there it is, the start of what will no doubt be the blog-post, "5 Reasons In-house Lawyers should use Facebook". Until then.

Turn On, Tune In, Tweet Out

2010-10-02T01:16:00.000-07:00

If you turned on Twitter on Thursday evening, and tuned into the #22twts hashtag, you'll have seen me tweet out.

#22twts is the inspiration of Lance Godard (of the The Godard Group) and comprises a weekly live Twitter interview of tweeting lawyers "helping them to tell their stories one tweet at a time".

I was Lance's first in-house interviewee, and I was slightly nervous to begin, but the experience was great fun and I'd thoroughly recommend that any lawyer using Twitter contacts Lance if they'd like to feature on #22twts.

The transcript of my interview appears on www.22tweets.com.

Guardian Angel

2010-09-24T03:15:00.000-07:00

This is an example of how Twitter can "do something for you" very simply and very quickly.

Last week I saw this tweet:

I responded with this tweet:

And this one:

Next thing I saw this tweet:

And this article in The Guardian referencing my tweet:

People talked about it:

And nice people said nice things:

Simple.

Privileged Position

2010-09-22T04:16:00.000-07:00

I've always viewed working in-house as a privilege; that a company trusts one individual to be their primary source of leagl advice and cousel is a compliment in my book.

But now it appears that working in-house may be a less privileged role. In the strictly legal sense. The decision by the ECJ last week in Akzo Nobel vCommission means that legal privilege does not attach to advice provided by an in-house lawyer to their client/employer in EU competition law matters.

Swings and roundabouts. On the back of the decision, it was indeed an honour and a privilege for me to be asked by the Solicitors Journal to pen an article providing an in-house perspective of this decision. My article and views are here.

Branded Part 4: It's Lawyering, but not as we know it

2010-09-16T04:58:00.000-07:00

Well, things are finally starting to move forward on the personal brand quest front. I was delighted to speak with Legal Week recently in relation to a peice which they're writing on Tweeting Lawyers (I'll link to the piece once t goes live); I have an interview lined up for late September with 22Twts (a real time Twitter interview which asks 22 questions of tweeting lawyers, and I have the honour of being their first interview of an in-house lawyer), and finally I have myself a press deadline (scary) as I've been asked to provide an opinion piece for the Solicitors Journal on the recent Akzo Nobel case decison on privilege and the in-house lawyer.

It's lawyering, but not as we know it.

The Hub's got the Goods

2010-09-09T12:04:00.000-07:00

One of the more interesting feeds in my daily RSS stream today pointed me in the direction of the OFT's website. The OFT website is one of the Government websites which I do tend to frequent more than others as so much of the OFT's work affects business (what with its myriad of Codes of Conduct, protection and enforcement work and competition regulation), but also business can affect the OFT's work as well (such as by contributing to their industry focussed consultations).

The reason for my visit to the website today though was to take a look at its online Hub launched to help retailers comply with the Sale of Goods Act (SGA). Like most legislation, the SGA isn't the most riveting of reads, as you can see here:

But the good old Hub has made it a much more user-friendly read, thus:

The Hub includes an at a glance flowchart, download area, case studies and even a quick quiz should the mood take you!

One of the many tasks of the in-house lawyer is to simplify legal concepts and make them less of an obstacle for business; the Hub is a terrific example of how lawyers can use technology creatively to achieve that goal.

5 Reasons for In-House Counsel to use Linked In

2010-08-11T13:51:00.000-07:00

In the style of the popular 5 Reasons for In-house Counsel to use Twitter, and having noticed that I'm spending more time using Linked In lately, it seemed only right and proper to set out my 5 reasons for in-house counsel to use Linked In:

1. In Branded I discussed the benefits to all lawyers of creating a personal brand online. Linked In is a credible, professional online network which is designed to provide you with the the tools to establish your online professional persona quickly and simply on a canvas which Twitter and, say, Facebook can't provide:

Your Linked In profile page acts as an online CV
The profiles of those who you are connected with are stored in an easily-searchable Contacts list
Links to your website, blog and Twitter account can be easily incorporated into your profile page to showcase your wider online presence
Status updates, activity timelines, group links and recommendations showcase your business impact

2. Linked In is the place to formally cement any professional connections which you've made fleetingly in the online or offline world, particularly those connections from Twitter! Linked In also provides access to a wider network of like-minded in-house lawyers and other professionals who you might not necessarily use the other social media networks which you also do.

3. Linked In groups offer you a members-only style form for you to connect with other in-house professionals. To get you started, here are a selection of Linked In groups focussed on in-house lawyers:

4. Linked In groups provide you with the opportunity to, not only connect with other in-house counsel, but to also learn from, join in and create discussions on your group's specialist subject area. Members of groups share information resources, survey data and pose questions on topics of interest, and if you choose to subscribe to your group's email update (on a daily or weekly basis) all of that valuable information and discussion-based material can be delivered direct to your in-box.

5. Lawyers are one of the professions which are traditionally dragged into technology. My real-life contacts from law firms are under-represented on Linked In and, those law firm contacts who are there, have the least active profiles. As in-house counsel, I like to think we're more connected with the way the rest of business uses technology and we should prove to the professional community that lawyers can have a social (networking) life too!

And, if you're a lawyer who does embrace technology, Linked In is one of the venues where you'll come across other tech-savvy lawyers.

I'll see you on Linked In then: http://uk.linkedin.com/in/melaniejhatton

Pick n' Mix

2010-07-29T15:26:00.000-07:00

A corporate lawyer in private practice asked me recently, "What's it like to have just the one client then?"

"Not quite as simple as having just the one specialism," I replied. Because, when it comes to being an in-house lawyer, life is like a box of chocolates pick n' mix.

As a sole in-house counsel, I don't have the luxury of a specialism. My employer relies on me to know just the right amount of law about any event which happens to affect it that day of the week (and sometimes not necessarily the "right amount of law" just "the right amount of knowledge generally"). So, that could be a dose of contractual drafting on a Monday, a dip into a property lease on a Tuesday, approving the HR policies on a Wednesday, a dose of contract drafting on a Thursday and a dabble in collecting debt on a Friday*. Although more often than not, its all of those things and then some on a Monday and the rest of the week continues in a consistently random manner.

*I always leave anything litigious to a Friday, I'm a non-contentious lawyer and, to me, opposing counsel seem much more inclined to strike a deal with less antagonism on a Friday than any other day of the week. This just happens to be my observation of the world of litigation, any litigators out there who concur or disagree can drop me a line. On a Friday please.

Anyway, the point is an in-house lawyer has to be prepared to deal with any type of issue which drops onto his or her desk and be able to choose the correct legal tool to conjure the solution required. We just need to get things done.

I've acclimatised to being a general commercial lawyer through a combination of in-house roles in different industry sectors and also a good grounding in the Commercial teams of a couple of private practice firms. I recall being a trainee in the Commercial team of a law firm, and on my first day in the seat I asked the outgoing trainee what type of work I could expect to do in the team, he replied "Well, if it doesn't fall into Corporate, Property or Litigation, you'll be doing it".

However, I think there's much more discipline to being a general commercial lawyer than that rather glib welcome to the Commercial team suggests, and Richard Russeth, author of the blog The Last Generalist, agrees. Richard claims that the legal generalist is the new specialist. In his post More Sheriff Taylor Less Wyatt Earp, "Not a “jack of all trades, master of none” but a master of the breadth, height and depth of the law, its reason and its wisdom. She sees the forest. She sees the trees. She sees all the little pieces of the deal/business/environment, the mosaic they create, and, as a result, what needs to be done, the specialists needed, the knowledge to be tapped. She brings ethics, finesse and wisdom to her counsel. She is a counselor at law."

Liquorice allsorts anyone?

Branded Part 3: Roll up for the Round up!

2010-07-29T06:51:00.000-07:00

2010 marks the beginning of the The UK Blawg Round Up, the UK Lawyers’ Blog of Blawgs. Its mission: to highlight the UK legal blogging scene and the players in it.

UK blogging lawyers are playing catch-up to our counterparts in the US, where the mighty Blawg Review is published weekly. At present, the UK Blawg Round Up is published quarterly, and there have been 3 editions to date:

• Its Not Blawg Review

• New Beginnings

• Midsummer Madness

I’m thrilled to announce that the 4th edition of the UK Blawg Roundup will be hosted by me. Due out 31 October, the theme will be, unsurprisingly, a Halloween Hoot!

If you’re a lawyer on the UK blogging scene, please submit your blog post for me to review via the Blog Carnival by 17 October. I'm looking forward to reading all submissions and finding out more about you all.

The UK legal blogging (or blawging) is in its infancy and there really is no better time for home-grown legal bloggers to make their mark and establish a personal brand. So jump on board and get involved!.

Legal Department v. Sales Department: Round 1!

2010-07-20T14:00:00.000-07:00

In my post, The Essential Tool-Kit for the In-house Lawyer, one of the contributors of an idea for an item to include in the kit mentioned the essential requirement of "an effigy of a sales manager to stick pins in".

Justified?

In each in-house legal position I've held there has been, without fail, a friction between the Legal team and the Sales & Marketing team. The reason? Our teams respective purposes within the company are diametrically opposed.

The job of Sales & Marketing:- to sell the company's products and services to as many customers as possible. This more often that not entails a burning desire on the part of the Sales & Marketing team to raise the expectations of the customer, consequently making the customer believe that the product or service is a whole lot more than it likely is, and at a great price to boot.

And the job of the Legal team:- to manage expectations, to manage risk. To ensure that the customer knows exactly what they're buying, and at exactly what price too.

It's a battlefield at the best of times; and I pity any fresh-faced law graduate starting from the top of the ivory tower, when placed in front of an aggressive and experienced Sales Director at month-end intent on reaching his target. However, in my experience I've learned that there's no reason that the friction can't be a healthy friction.

The Defence?

The best Sales Director I've worked alongside was at a previous role I held in the package travel industry. A highly-competitive industry, low margins, a pile 'em high sell 'em cheap mentality, and heaving with regulation particularly advertising regulation. I say "worked alongside" this Sales Director because that's Rule 1 of working in-house: no matter which department of the company you're in, you're all on the same team.

This Sales Director knew his product and his target market inside out, but he also knew the law inside out too. Which meant he tested me. Every product, every promotion, every advertisement was pushed to the limits of what was legally acceptable. It became apparent to me very quickly that it wasn't enough to simply say "you can't say that in the ad, its against such and such regulation": he knew the regulations word for word, he knew what the regulations did and didn't say, he knew every code of conduct on the subject, every discussion which led to the code of conduct being formulated, and every case bought to the attention of the ASA. This guy knew his stuff! Which meant that I needed to know it better and more thoroughly than he did to stand my ground when it mattered most. It was a great lesson in law and, more importantly, its practical application.

Opposing counsel?

They're not all like that and most dis-regard the law, or alternatively make up their own version of it. But keep in mind Rule 1, and your battleground will become a more workable place to be.

Law Donut

2010-06-27T13:28:00.000-07:00

I mentioned in Branded Part 2: Donuts and Carnivals, that I was pleased to be a contributor to the Law Donut blog.

My first post for that blog, Avoid April Showers, was a timely reminder for employers to regularly review their employment policies and contracts. My most recent post for that blog, Licensed to thrill?, is another reminder for employers, but this time with reference to the different licences which are required in a workplace which plays music, television or radio whether for the benefit of its staff or customers.

There are more regular contributors to the Law Donut than me, and they successfully make the Law Donut an excellent source of know-how and discussion on the nitty-gritty of what law and regulation actually means for employers and small businesses.

The Essential Tool-Kit for the In-House Lawyer

2010-06-10T13:10:00.000-07:00

Throughout my experience as an in-house lawyer, I've had a requirement for the following 3 items over and above all else:

A magic wand (to right wrongs and generally make things not the way they actually are)
A crystal ball (to predict the future of course)
A healthy stash of contracts that stretch to 2 sides of paper only (I don't know why, but when it comes to contracts, non-lawyers require them to be on 2 sides of paper only. Its a mystical quality which seems to keep everyone warm, comfortable and happy about any situation with a potential legal repercussion. I'm happy to oblige.)

Today on Twitter, I decided to ask my fellow tweeting in-house lawyers what they considered to be the essential items they needed to get through a day in the life of an in-house lawyer. I concurred with all of their replies, and so I'm now pleased to reveal the Official Essential Tool-Kit for the In-House Lawyer:

The three items mentioned above
A time machine (presumably for situations where the magic wand and crystal ball fail to function as required)
A pair of reality glasses to loan out to people as and when needed (so in reality, a huge stash of reality glasses)
A "10 minute" gun to shoot someone and they die for 10 minutes (I'm thinking @gamingcounsel was having a particularly bad day when he suggested this item, and I'm sure he doesn't really mean to shoot any of his co-workers)
An effigy of a sales manager to stick pins in (heck, we in-house lawyers are displaying a fair bit of pent up rage aren't we? Although I could write several blog posts on the...hmmmm....challenges which arise between in-house legal and sales. Yes we're all on the same "company team" but essentially our functions are diametrically opposed and always will be)
Two large red stamps (a) APPROVED and (b) DENIED (interesting this one, anything I "deny" tends to land on my desk the next day in disguise if I'm lucky, if I'm unlucky, "denied" activities tend to happen anyway under the cover of darkness)
A repeat button (must be hard wearing)

There were some behavioural and physical traits which were suggested as essential also:

The patience of a saint
A sense of humour
Open eyes and ears (I took this to mean alertness. Pro-plus and caffeine can assist with this)
2 feet and 2 hands (although it did strike me that if we were going to get this particular about the tool-kit, an extra pair of hands and feet and some "go faster" stripes are most definitely required)

Some of the more sensible suggestions also hit a chord, and there was a consistent message that in-house lawyers need:

A quiet office (a haven, particularly for the in-house lawyer in an open-plan space shared primarily with non-lawyers who don't always share the same requirement for quiet review of papers or the keeping of matters confidential)
A decent PC and a full complement of software and internet access
Twitter!
The internet (an absolute essential for lawyers operating without access to the informational resource of a traditional law firm library and professional support lawyer team)
An accurate, complete and up to date contracts register recording all commercial agreements in the company (plus a paralegal to help run it)
Trained co-workers with access to self-help guidance (working on the theory that a stitch in time saves nine)
Black's Law Dictionary (I don't know what this is but mention of it it caused quite a stir amongst tweeters on the other side of the Atlantic)

Interestingly, no in-house lawyer mentioned either of the following:

External counsel
iPads (the one teccy item which is generating a huge amount of road-testing, blogging and commenting on by tech-savvy lawyers the world over at the moment)

Thank you to all of my fellow tweeting lawyers who took the time to share their thoughts with me today on this subject: @richard_russeth @philcylaw @jcasalmir @gamingcounsel @jamesbarnesesq @legalbizzle @jds @TM_Association @AlexandraHa @TMT_Lawyer

I'd love to hear from you if you have any experiences with items in the Essential Tool-Kit listed above or any other items to add to it.

Winner: Follow up on my Shameless Plug Post

2010-06-02T15:15:00.000-07:00

It never rains, but it pours; two blog posts in one night after the drought that was May.

So, following up on my Shameless Plug & Follow Up post where I asked you all to click on the link to my blog post for Latitude in the hope that if it was the post with the most hits on the Latitude blog for that month then I would win the prize for the monthly blogging competition......drum roll.......well thank you all very much indeed, I won! Even better, an earlier blog post which I'd penned for Latitude and which I'd cunningly linked to in the first (I don't work for a digital marketing agency for nothing) came second. I won again!

I have donated my winnings from the competition to Save the Children.

I'm a Specialist Plant

2010-06-02T14:58:00.000-07:00

I recently realised that I've not blogged a blog post throughout the whole of May. However, I do have a perfectly good scientific explanation for this.

I'm a specialist plant.

At least, my "preferred roles" are that of a specialist (law) and a plant (a creative ideas person). More particularly, my "least preferred role" is that of a completer-finisher (..er...there's no easy way to say this, basically I prefer other people to sort out the detail, and I'll get on with the bigger picture). This is unusual for a lawyer, most of us are archetypal completer-finishers (interested in painstaking detail). Not me apparently.

In other words, I had an idea about how I could develop my specialism of law....this blog, and then during May (presumably while I had other ideas brewing) I must have assumed that someone else in Team Melanie would get on with the detail of the blog for me. No such luck!

Well, at least this is the explanation according to an analysis of my typical behaviours in a Belbin Team Role Profile. For those of you who aren't familiar with Belbin, he was a Dr who, (not Dr Who, but a Dr who) with a team of researchers in the 1970's, set about observing and recording team behaviours, with a view to finding out why some teams worked effectively and some didn't (assuming a controlled set of resources). The research identified 9 Team-Role behaviours, and through an incredibly simple set of psychometric questions identifies an individual's preferred, manageable and least-preferred team toles. To have a preference for or against a role is not wrong per se, and the theory does suggest "allowable weaknesses" for each role (for example the conscientious completer-finisher might be reluctant to delegate), but on the flip side, it also suggests weaknesses which if allowed to get out of hand would not be beneficial for the overall team good.

Like DISC (see my earlier post Disc World) Belbin theory is another tool which allows you to understand your own behaviour and those of others in your team. It also helps team managers to not just build a team made up of a perfectly balanced set of 9 Team Role types, but identify where the potential gaps of behaviour in their team lie and to plan around that accordingly.

I was introduced to Belbin Team Role Theory by the very friendly and helpful Urquhart Partnership, or for more information you can go direct to http://www.belbin.com/.

Volcano Policy

2010-04-22T08:45:00.000-07:00

Since the volcanic ash hit the skies of the UK, things have been getting a little dusty. With all those Britons stranded abroad, and at the end of the Easter holidays, this week there’ll have been a few empty desks across the offices of GB.

So employers, what’s your Volcano Policy? Will you require your employees stranded abroad to take the time off work as holiday, paid leave or unpaid leave? What lengths will your company go to return stranded staff back to the UK to increase the work force? Will it depend on whether those staff are currently stranded on business trips or personal trips abroad?

The issue for management of staff absence during Ashgate, are very similar to the issues faced by employers at the beginning of the year with Snowgate. Simple solution is to dust off your Snow Policies and re-brand them, Volcano Policy.

Job done.

Play the advantage

2010-04-08T15:19:00.000-07:00

Working in the digital media industry I see first-hand every day the benefits to individuals and businesses from taking advantage of the newest technology, social media and web 2.0. An industry was born of it, trailblazers lead it, those who participate in it are cutting-edge, engaged with their customers and reap the rewards. They also have a bit of fun with it.

Hold on a minute….what was that you said? What’s web 2.0? Ah yes, social media it’s a risk isn’t it, you need rules to prevent your employees recklessly libelling their boss on Facebook. I don't give staff access to social media sites, its counter-productive. I can’t Twitter, it would be a breach of confidentiality. Anyway, my firm has a website.

Sorry. I forgot. You’re a lawyer. Risk-averse. You hear "social media". You think "policy". Go on, admit it.

So, I was delighted to read about this excellent symposium being organised by lawyers for lawyers. It’s a fresh and quirky look at how technology is affecting the practice of law. Sessions include: “Up in the Air and the Cloud”, ”Would Lincoln get Linked In? Or would he Tweet?” and, my personal favourite, “What’s your Avatar? How social media is changing the way we work and how to take advantage of it”.

If you're lucky enough to be attending this symposium, you just know you’re going to be able to listen to people excited about their subject and come away feeling inspired to get your personal lawyer brand online, out there and competing with the best of them.

Contrast those sessions with an in-house lawyer forum I’ve been invited to recently by a regional law firm. How could I not want to find out: “How to control social media in the workplace”, “How to prevent online defamation” and “How to control your risk online”.

Yawn.

It gets worse. An entirely separate conference I was invited to bears the ominous title “The Internet: What can go wrong and how to avoid it”. It includes sessions entitled “An Online Survival Guide”, “Avoiding Problems” and “How to Perform a Legal Operation”.

No, I don’t get the relevance of the last session either. But it’s a conference about the internet so….err…I guess it needs some scary sounding items that lawyers can warn their clients about. Maybe the organiser got a byte from a mouse when he was younger.

Anyway, I know which conference, I mean, symposium I’d rather be at. Go on law firms, I dare you, when it comes to social media and web 2.0, be a trailblazer and get your profession excited about the possibilities new technology and media offer us; don’t blow the referee’s whistle, play the advantage.

Are you talking my language?

2010-04-07T08:55:00.000-07:00

The need to use the right communication method to keep in touch with your audience was never better exemplified than in yesterday’s parliamentary wash-up process for the Digital Economy Bill which enticed very few MPs to engage in debate on the subject in the Commons; juxtapositioned against the tirade of simultaneous Twitter debate at #debill from the outraged constituents of those MPs who will be looking for their votes at the general election in just over 4 weeks time.

Here’s another example of an organisation failing to hit the mark with the right communication method for the subject matter. A couple of weeks ago there was a landmark judgement on a case in my industry (digital marketing) and a big player was involved (Google). The law has always struggled to keep pace with technology, and so we love legal developments which do affect us and this was news we’d all been waiting for. Twitter alerted me to the result of the case. I used Twitter to convey the information I had received myself about the judgement, and to find out the information which everybody else had. I had a blog up and running for my company on the subject just after lunch time and, fair dues, several law firms, legal and industry bloggers achieved the same.

On the day, Twitter was invaluable for exchanging information and more importantly current thinking attaching to the issues which were raised in the case. Given the case related to the digital marketing industry, the real time communication was all the more appropriate.

Two days later, I received an e-mail from a law firm with the heading “Breaking News”. “How exciting” I thought “What a busy week this is turning out to be for new legal developments...

Oh the disappointment! The e-mail contained a briefing of the judgement from 2 days prior. It contained no insight or new angles on the case, and was clearly not in touch with the comments about this judgement case which were circulating on Twitter, the blogosphere and the industry generally.

In my view this was not breaking news. Technically, it was not even yesterday’s news. It would have been hard-pressed to be that day’s fish and chips paper.

Law firms, take note! and engage more actively with your target audience, use the tools which we use to communicate your message and you’ll have our attention. We may even talk back to you. It could be the start of a beautiful relationship.

Shameless Plug & Follow-up

2010-03-25T06:03:00.000-07:00

A shameless plug for the blog post which I wrote for Latitude earlier this week, Google off the hook, but is anyone else left on it? following the judgement from the ECJ on the 3 Google Adwords cases referred to it from the French courts. Please click on the link, because if I'm the employee with the most clicks on the Latitude blog this month I could win the monthly blogging competition :-)

Plug over.

Now for the follow-up:

Obviously this isn't the result which trademark proprietors were hoping for, and since writing that post I've seen a number of reports in the blogosphere suggesting that enforcement costs for protecting brands online will rocket (see in particular this post from World Trademark Review). We'll just have to wait and see if the price per click of branded keywords does increase, but I think to say that the costs of enforcement will rocket is perhaps a knee-jerk reaction because:

(a) What this judgement does is further clarify what type of activity does and doesn't constitute trademark infringement, and clarity can only be a good thing for all parties concerned, and so there should be, per se, less infringement. When we have the ruling in M&S v Interflora, we'll have even more clarity.

(b) Doubtless there will be some advertisers who take advantge of the ruling, but likewise there will be those who don't. For instance, in terms of online advertising, some sectors are more sensitive to searches against generic keywords rather than branded keywords (eg "car insurance"). Indeed, individual advertisers also take their own ethical stance in whether or not they use competitor's trademarked terms as keywords in their own advertising campaigns.

(c) What trademark owners should consider are the other ways in which they can boost their online presence, such as through improved content (price per click is not the only factor which affects the placement of a sponsored ad) and organic search results.

Lots of analysis and views to digest still, I particularly enjoyed reading Eric Goldman's analysis of the ruling Google gets favourable ECJ opinion, but will it prove a hollow victory? and IPKat's summary of comments on the 3 cases.

CAPping it off: The digital remit extension

2010-03-18T03:39:00.000-07:00

This week the Advertising Association announced that the advertising industry recommends the remit of the CAP Code be extended to cover all online marketing communications including social media.

It’s anticipated that this will be achieved by Autumn 2010, but the move needs to be ratified by CAP and will be subject to appropriate consultation with the industry first.

The existing Code covers paid for marketing communications online (such as PPC, display banner advertisements, preferential rankings on price comparison sites etc), and so the proposed extension to all online marketing will require a change in the mindset and awareness of online publishers of any marketing communication to ensure their communications do not fall foul of the Code.

This is great news (albeit a perfect example of how the law takes a little while to catch up with how consumers and businesses use technology). Some initial thoughts and questions from me:

• What will constitute an “online marketing communication”? It’s easy to identify a stand-alone PPC or display banner advertisement as a piece of advertising, but the line can become blurred when the format changes. For instance, an online “infommercial”, which presumably will be caught as similar are caught in the offline environment. But where will the line be drawn? Or will a line be drawn at all? Arguably a company’s entire website could be classified as a marketing communication as the primary purpose it serves is to promote a business and its brand.

• Articles and “press releases” are regularly submitted to search engines and online directories for the purposes of search engine optimisation and are prepared with the expectation that the content will only be “viewed” by the search engines for the purpose of increasing the organic search ranking of the website in question, rather than be viewed by individual consumers. That expectation won’t change, but these documents will potentially fall under the extended remit.

• The inclusion of social media is the most important proposed change to the Code as there is a clear engagement and influence between consumer and marketer with this type of online marketing communication. A company’s marketing activity on sites such as Facebook, MySpace, YouTube, Twitter and all manner of blogs and interactive communication portals will need to be managed more carefully to ensure content does not fall foul of the Code. This will be a challenge to the mindset of marketers using social media which is per se a more informal and laissez-faire type of communication.

• Social media marketing communications thrive on interaction and user generated content. Will user-generated content be captured by the Code? My initial reaction is no but that’s based on the assumption that user generated content is generated by consumers (whom the Code is aimed to protect) and not the company doing the marketing; but what about where user generated content is generated by representatives of the company posing as consumers or persons recommending that company’s products or services? How will this type of undercover online marketing be dealt with?

• In terms of twitter: Will a company’s entire Twitter stream be captured by the new remit, or just those tweets comprising a branded marketing communication? What about the Twitter stream of an individual associated with a company but who tweets for themselves, albeit their association with the company influences their tweets? If a marketing communication is tweeted, and is non-compliant with the Code, will any re-tweets of that original tweet be treated as non-compliant also?

I'm on consultation watch, and look forward to hearing other thoughts on how the extension of the CAP Code will potentially affect online marketing practices.

5 Twitter Best Practice Tips for In-house Counsel

2010-03-11T04:25:00.000-08:00

In my previous post 5 Reasons for In-house Counsel to use Twitter I encourage in-house lawyers to embrace Twitter. Now here’s some best practice advice on making the most of Twitter specifically for in-house counsel:

1. By its nature, Twitter is a personable and informal means of communication, but be careful not to let your professional standards drop. This is particularly important if your Twitter profile identifies you as a lawyer and more so if it identifies the link to your employing company. For instance, whereas a lawyer for a private practice firm might be able to comfortably tweet “worked on defence to a fraud case today” and the lawyer/client privilege is not necessarily breached; but tweeting about your exposure to a fraud case as an in-house lawyer might not be the best PR you could be giving to your company.

2. On Twitter you represent yourself, your legal skills and profession and your employer. How do you balance these 3 potentially conflicting interests? Personally, I manage this risk by running two separate Twitter accounts: one protected account for my personal Twitter feed and a public account for my @in_house_lawyer tweets which I keep strictly professional. (Does this make me a Twitzophrenic?). Other users of Twitter merge their personal and professional tweets side by side. Twitter is a flexible tool, so experiment to find the best way for you of balancing your individualism and professionalism.

3. Twitter is a great information resource, yes. But, as a lawyer, rely on it with caution. No matter how authoritative your fellow Twitterers appear, Twitter is not a source of legal authority. Your information stream is limited to the people whom you follow, their quality of resource, accuracy and currency and also their “take” on a piece of information. Not to mention disseminating all of that into just 140 characters.

4. Connected with the previous point, very often you will see a tantalising tweet luring you to click on a link to a helpful article – you review the full article and then see the date at the bottom, its 6 months old! Twitter prides itself on being “real time” and as such there is an expectation of currency of information to be available on Twitter, and largely that is true, but that doesn’t always manifest itself in tweets and re-tweets of information sources. Top tip: when clicking on a link to a third party PDF or article the first thing you should do is check the date of that piece of information, not forgetting the jurisdiction it relates to (Twitter is a worldwide information stream).

Also beware the tweeters who post links to sites which appear to contain helpful information which is bang up-to-date, but which you then have to pay to download that information. These types of tweets are few and far between, but just one to watch out for.

5. To make the most of Twitter as a networking tool and information resource you need to mange who you follow with some regularity. Don’t feel compelled to follow back everyone who follows you, likewise don’t be offended if someone you follow doesn’t follow you back. Everyone uses twitter differently. The value of Twitter as an information resource for you lessens if your information stream becomes diluted with irrelevant or unhelpful information. Refresh who you follow every once so that you don’t miss out on new Twitter users who it might be mutually beneficial to follow. Having said all of that if a user directs a comment to you, it is Twitter etiqueete (Twitiquette?) to respond, even if you don’t follow that user.

More generally, I recommend reading Twitter’s own best practice tips for general use of Twitter, and The Creation of Twitter Best Practices on Ogilvy PR (an older article (see advice in point 4 above!) but the advice still rings true). I’d love to hear your best practice advice for in-house counsel using Twitter.

AdWords, Links & a Ticking Clock

2010-03-09T06:55:00.000-08:00

I’ve been expecting 2010 to be a busy year for developments with the pending litigations relating to online infringement of brands when used as keywords to deliver sponsored search results, and yesterday I posted a blog for Latitude about it. The purpose of that post was to bring non-lawyers up to speed with the topic but do feel free to comment there on any of the legal implications of these cases should the mood take you. Meanwhile, here are a few useful legal links on the subject for the lawyers amongst you:

Eric Goldman’s Technology & Marketing Law Blog continues to be a first class source of updates on the US Google Adwords litigation; he is meticulously in backing up his blogs with a raft of legal sources and links and his comments are insightful both in terms of the legal ramifications and also in terms of well-spotted human-error and oddities (see his commentary on the Flowbee litigation linked below for a case in point).

Eric has recently blogged on the decision by Rescue.com to drop its lawsuit against Google (seemingly because of the duplicitous position which the plaintiff found itself in by arguing both sides of the coin in parallel lawsuits, and also because of the sheer length of time the dispute has now been dragging on for), the Jurin case (in which the keyword seller v advertising seller argument surfaces), and the transfer of the Flowbee litigation (by invoking the venue selection/governing jurisdiction provisions in its Adwords contract); and on top of all of that he also helpfully maintains a running record of all Adwords cases on the books in the US.

Moving to Europe, back in September 2009 the Attorney General gave his opinion on the 3 French Google Adwords cases which had been referred to the ECJ for judgement. The AG comes down on the side of the search-engines, a position which some commentators have referred to as a mistake, so we will have to wait and see how the ECJ ultimately rules. In addition, we’re expecting judgement on Interflora v M&S and L’Oreal v eBay from the ECJ. We are tantalisingly promised opinions in “early 2010”....tick tock tick tock...

Branded: Part 2 Donuts & Carnivals

2010-03-03T05:00:00.000-08:00

In my earlier blog post Branded I set out on my quest to turn my in-house lawyer brand into a household name (or maybe that should be business hold name?) renowned the world over. The quest continues. I’m now pleased to be a contributor to the Law Donut Blog which offers free legal information and resources to people running smaller businesses. I’ve promised to work on my first series of contributions, musings and thoughts; although, said contributions, musings and thoughts might be more quickly inspired by the delivery of some Krispy Kremes to my desk....a-hem....moving on....

I was also interested to learn this week about Blog Carnival, a collection of blogging communities working together in shameless self-promotion. I’m all for that, and rather conveniently the UK Blawg Round Up community are currently in the process of organising their Easter edition hosted on this occasion by Peninsulawyer with the theme of "new beginnings". Another blog opportunity for me to muse upon and I encourage other UK law bloggers to contribute to the carnival also.

Speaking of readers of this blog, I thought it would be useful to know if there were actually any. So in a burst of ‘techiness and inspired by my digital marketing type colleagues at Latitude I incorporated Google Analytics into the HTML code of my blog (I needed a drink after this technical endeavour) to monitor hits and conversions, and much to my relief discovered that there are indeed readers of this blog. Phew.

Now, it seems that all I need to do to reach the highest echelons of legal blog brand fame is to get myself a dinky little animal avatar like those of the wonderful Technollama and IPKat.

Are you an in-house lawyer developing your brand? Let me know how you’re doing it (or how I could do it better!) by leaving your comments below.

Your Google Needs You!

2010-02-25T05:03:00.000-08:00

Google is recruiting. It needs in-house counsel, and lots of them. Fast! Just look at this selection of in-house legal jobs currently available at Mountain View, Google UK, and Google Zurich.

The reason for this recruitment drive? Well, not only does Google have the day-to-day legal demands of any international business its size (are there any others?), its also facing legal challenges left, right and centre. Here’s a quick run-down of some of the more high-profile ones:

1. Digital Books
Google is seeking to build the world’s biggest online library by digitising millions of out-of-print books. This move has come up against much criticism concerned with breach of copyright (resulting in many authors opting out of the proposed settlement), potential invasion of privacy (the project has the potential to make user’s personal data and online habits public) and unfair competition (is Google obtaining a monopoly on the world’s information?). The “fairness hearing”, as it is being referred to, had its day in court last week and Judge Chin has expressed his concerns but made clear that there will not be an immediate ruling.

2. Personal liability of 3 Google Execs in Italy
In Italy 3 Google executives have been convicted of invasion of privacy as a result of a short film being uploaded onto Google Video which showed a 17 year old boy with Down’s Syndrome being bullied by 4 other children. Although Google removed the video in less than 24 hours of receiving complaints after it had been uploaded, this was not enough for the Italian Court, whose position was that Google should never have allowed the video to reach the internet in the first place.

It’s a concerning precedent on two counts. Firstly, in terms of exposure to liability of executives working at content providers and potentially other platform or service providers. Secondly, in terms of the potential changes to process required for those content, platform and service providers to pre-screen content to minimise this new risk.

More on this story can be found on BBC, Google’s reaction and Peter Fleischer’s view (one of the Google executive’s in question) .

3. Potential EC Competition Investigation
The European commission has received 3 complaints (from price comparison site Foundem, French legal search engine ejustice.fr, and Microsoft's Ciao) that Google’s online search and digital advertising activity is potentially anti-competitive. Copies of the complaints are not available but according to The Guardian “The complaints centre on the way in which Google's search results are compiled and on the terms and conditions the company attaches to deals with advertisers.”

The EC has issued a statement advising that it has not opened a formal investigation but that it has asked Google to comment on the complaints. Google states it is “committed to competing fairly”, but with such a strong hold in the market-place and so much at stake, I suspect its in-house legal team will be pouring over the detail of the complaints and the company’s response with a fine tooth-comb to stave off a full investigation by the EC.

4. Buzz Off
The controversial social networking tool attaching to Google’s email brought with it a host of privacy concerns, Channel Webb documents them well. Google responded promptly to the criticisms and concerns, but was it too late? In the US, the Electronic Privacy Information Centre has urged the Federal Trade Commission to open an investigation into Buzz with a detailed complaint which seeks to:

• Compel Google to make Google Buzz a fully opt-in service for Gmail users
• Compel Google to cease using Gmail users’ private address book contacts to compile social networking lists
• Compel Google to give Google Buzz users more control over their information, by allowing users to accept or reject followers from the outset
• Provide such other relief as the Commission finds necessary and appropriate

5. Streetview
After successfully fighting off Mr & Mrs Boring who issued a federal claim against Google in relation to Streetview invading their privacy (see Eric Goldman’s summary) in the US, the Google lawyer assigned to Streetview is now having to fight a battle in Europe. Strong objections by the German government have been voiced by Germany’s Consumer Protection Minister (comments here) who is looking for Google to potentially obtain the consent of each and every person photographed on Stretview before uploading their image or other identifying locational data onto the service.

6. Alleged Search Patent Infringement
Hot off the press this morning, we hear that Xerox is alleging that Google’s search algorithms allegedly infringe its patents. Yahoo is also on the receiving end of the allegation and breaks the news here.

7. Adwords
And we haven’t even started on the long list of Adwords lawsuits lining up. Expertly summarised on Eric Goldman’s blog.

And that’s only the legal news in the public domain. Interesting times for GOOG’s in-house counsel.

5 Steps to Legal Risk Management

2010-02-23T07:50:00.000-08:00

Not so long ago I was invited to participate in a Legal Risk Management conference for in-house counsel. Despite being an in-house lawyer for many years, I’ve never actually owned a file labelled “Legal Risk Management” which I could use as a reference for arranging my thoughts on this obviously very important topic ahead of the event, and so it was with some trepidation that I arrived at the conference not really being quite sure what I could contribute.

However, what transpired was a very productive and animated discussion between in-house counsel on their experiences of what legal risk management means to them and their businesses, and I was pleased to be able to contribute based on my experience also as most of the best practice steps will be second-nature to seasoned in-house professionals.

There isn't one specific definition of legal risk management. For the purposes of this post, I understand the term to simply mean “the risk to a business of an event occurring which brings about a legal consequence impacting the business”.

Here are my 5 steps to legal risk management:

1. Conduct a Legal Audit
To be effective, legal risk management must be based on a thorough understanding of the business’ key activities, stakeholders and objectives and this can only be achieved by conducting regular legal audits and working with the business’ management team to analyse the risks, prioritise their management and anticipate the legal requirements of the business.

The audit will also facilitate the management of the “corporate memory”, essential for future due diligence exercises and the storage of key corporate data and documents, and it can lay the foundations for an ongoing compliance and risk management strategy.

2. Communicate, Educate, Co-operate
In-house counsel cannot manage legal risk single-handedly. It’s imperative that the legal risks are communicated to the wider business to ensure they are supported and, vice versa, that the wider business objectives and demands are facilitated in the legal risk management strategy.

One way to achieve that communication is through legal risk awareness training sessions tailored to the audience within the business which is either most exposed to or best placed to handle the risk being communicated. Training sessions are a perfect opportunity for in-house counsel to demonstrate that they are working with the business (not against it), and are also a good pre-cursor to introducing new business guidelines to assist colleagues with the practical day-to-day management of the legal risks which have been identified.

Although some legal risks are stand-alone, don’t forget that many legal risks dovetail with financial, reputational, operational, political, regulatory and tax risks; so, legal risk management is just one part of a more broad risk management strategy within a business. It’s a challenge for those new to the role of in-house counsel to balance their risk-averse nature against both these other risks and the essential quality of risk-acceptance in any successful entrepreneurial business; but, once mastered, this skill will make the commercially aware in-house lawyer stand out in the crowd from those lawyers sitting in their ivory towers.

3. Compliance and Governance Policies
Underpinning any legal risk management strategy is the requirement for a comprehensive set of compliance and governance policies. Policy making is a key tool which in-house counsel have within their remit to positively influence the way in which business is conducted and to set the standard for expected behaviour. It is essential that all such policies have the buy-in and support of the management team, and that the legal department has a defined role in implementing and ensuring compliance with the policies.

4. Operations
The daily operations of a business always prove to be the most fertile ground for legal input. An abundance of legal consequences can be found in supply, manufacturing and distribution chains, protection of intellectual property rights, brand protection (online and offline), pending and threatened litigation, product liability, sales and marketing practice, insurance, property matters, employment and HR practice, industry regulation as well as company secretarial, board and shareholder matters.

Good working relationships with colleagues operating in each of these areas are essential for in-house counsel to play an effective and valued role within the business; the challenge is for the lawyer to be seen as part of the team, and not as an obstacle, to achieving operational outputs and objectives.

5. Legal Resource
The individual character of each business will determine its exposure to legal risk and the management tools required to best handle that risk. Inherent to that is the balance of matching and managing internal and external legal resource, and indeed other professional suppliers to the business. The tough economic conditions are resulting in more businesses expecting their legal teams to reduce head-count and manage costs more tightly, but arguably against a back-drop of increased legal risk. A core skill of the in-house lawyer in today’s world is their ability to manage the risks in this more intense climate by better clarifying the role of the legal function within the business, demonstrating value-add and selecting, managing and getting the most out of their internal and external legal resource.

Every business will have legal risks peculiar to it, but taking the above steps will help manage the risks which are core to most. Please comment and share your experiences of legal risk management.

Disc World

2010-02-17T06:18:00.000-08:00

As most in-house lawyers to SMEs will testify the role will expand into areas of the business which just aren’t in any way, shape or form legally related; and the area which I’ve found myself deviating into is training and development. Having some experience as a professional support lawyer for a UK Top 15 law firm it’s an area I’m familiar and comfortable with, so I was delighted to be asked to formulate a training and development strategy for my company's senior managers during the latter part of 2009.

One of the key tools which I’ve built the strategy around is DISC, a behavioural profiling tool which aids the individual in recognising their own behavioural traits, those of others, and then allows the individual to adapt their personal style to better influence others. I firmly believe that one of the foundation stones for personal development is to “know thyself” and awareness of your own behavioural pattern is an essential for increased communication and influence both in your personal and business lives.

I’m not the only lawyer interested in this, the DISC profiling system in use today was initially formulated by lawyer and psychologist, William Marston, in the early 1920s born out of his fascination with individuals’ behavioural patterns and it’s now widely used within all types of business the world over.

The DISC model is incredibly insightful, and users are often amazed at the accuracy of the information obtained about themselves in their profile report. One of the reasons for its popularity is that it uses neutral language. There is no wrong or right behaviour in DISC, it uses a “universal language of observable behaviour” (TTI Ltd) to powerfully identify the behavioural tendencies within each of us individually and which make up our unique character. Furthermore, DISC is not a psychometric tool nor is it a measure of knowledge or intelligence; and so it’s a true “leveller” between directors, senior managers and junior staff alike and can be used to create a common language within your business to better aid communication.

DISC itself is an acronym for the 4 quadrants of observable behaviour (all of which are in us to a greater or lesser degree):

Dominance or Drive: results-driven, competitive, risk-taking people show a high D profile. Think successful sports stars, coaches and entrepreneurs.

Influence: charismatic, enthusiastic, popular and charming are characteristics of individuals with a high I. Oprah Winfrey and Jonathan Ross both have a high level of I in their behavioural profiles.

Steadiness: High S individuals portray loyal, devoted, stable and patient behavioural patterns. They are the ultimate safe pair of hands, think Mother Theresa and Ugly Betty!

Compliance or Conscientiousness: High Cs are perfectionists, analytical, accurate, precise and exacting individuals. The Monica Geller character in Friends and most lawyers and accountants will demonstrate a high C in their behavioural profile.

There is also a clever inter-relationship between the individual quadrants of the DISC reflecting whether a behavioural type is motivated by task (D and C) as opposed to people (I and S), whether a behavioural type is active (D and I) or reflective (S and C), and how an individual’s “natural” style changes into an “adapted” style under pressure.

Of course each of the quadrants of behaviour brings with it a value to a business, and a team will need individuals from all quadrants (or an individual operating in each quadrant at the right time) to successfully deliver a project or task. Each behavioural quadrant will however need motivating and managing in a particular way, and recognising the behaviour in an individual is the first step to achieving the appropriate balance of motivation and management.

There are different versions of DISC profiling in use today and a simple search of the internet will reveal providers of all of those versions. The version which I experienced was from TTI Ltd, a licensed supplier of Success Insights Intl Inc and was delivered by Julie Harrison Consulting. I’ve also found DISC Profile Blog full of informative and practical demonstrations of DISC in action.

5 Reasons for In-house Counsel to use Twitter

2010-02-04T06:18:00.000-08:00

I’ve been tweeting as @in_house_lawyer for a couple of months and already I’ve built up a new network of legal acquaintances through that profile; however despite an increasing take-up of all manner of legal service providers using and contributing to Twitter, I’ve found very few in-house counsel out there. So, if you are in-house counsel using Twitter or you know of in-house counsel amongst the Twitterati please point them in my direction!

Here are my 5 reasons why in-house counsel should use Twitter:

1. Twitter is a great information resource. Choose which Twitterers to follow carefully based on content which is of interest to you, and you’ll have a constant stream of helpful data and links on the subject areas you want to keep up to speed with. Twitter users who are looking to appeal to lawyers are incredibly keen to be the first to inform you of a new legal development or to offer a different view on that development. As an information resource it’s flexible, easy to access and free. All very important to the resource and time strapped in-house lawyer.

You can also follow tweets on subjects from outside of the Twitterati you follow by creating tweet columns. Using a service such as Tweetdeck, you can create tweet columns to supply you with tweets on your favourite hash-tagged subject matters.

2. The Twitter environment offers the in-house lawyer an opportunity to forge new relationships with people who might otherwise be outside of their network. Link up with law firms, law graduates, legal researchers, companies offering legal training and development, and key-players in your company’s specialist industry or service line. Follow these people, re-tweet, reply to their tweets and contribute tweets which they’re likely to find useful and you’ll soon find yourself receiving direct messages, emails and Linked-In invitations to connect from the real people behind the Twitter accounts you follow.

3. “If you’re not online, you don’t exist” said Internet Strategist Nathan Snell back in March 2009, and in 2010 that warning rings more true than ever. Twitter offers a simple gateway to improving your online presence and your personal brand which is just as key to an in-house lawyer as to any other profession out there. See my earlier post Branded on the importance of establishing yourself as a specialist in your field via social media.

4. As more and more companies and individuals explore social media, so social media presents the legal community with the need to analyse and advise upon the legal implications of it. Many corporations choose to regulate the way in which their employees use social media and many have introduced social media policies. (For those of you considering introducing your own, Social Media Governance provides an online database of social media policies and guidelines from a number of organisations for research purposes). There’s nothing like familiarising yourself with the social media tools which your company and its staff are using to understand the benefits and risks which it brings to a business and which you’ll be asked to take a legal (and of course practicable and commercial) view on.

5. Under pressure to deliver a value-add to your company? Your Twitter presence is not only an opportunity to market your personal legal brand online, but once out there you’ll be a representative of your company. Use your Twitter platform to raise awareness of legal developments affecting the industry which your company and its customers operate in.

Waiting for the cookies to crumble

2010-01-28T08:07:00.000-08:00

During 2009 behavioural advertising stealthily crept onto my legal radar. Behavioural advertising on the internet involves a search engine or website operator displaying advertisements to a user based on that user’s previous internet browsing history. This process is made possible by cookies which track a user’s journey through the world wide web and send data to a search engine or website operator which in turn then determines the content to display to that user based on their journey so far. The purpose is to serve more relevant ads to a user and of course to increase conversion.

My article for Latitude Group, Taking the Biscuit: Cookie Law Gets Tough, back in November explains how some recent legislative changes will now challenge the manner in which a website operator will have to provide a user with information about how their cookies will monitor that user’s journey on that website and it will also require the operator to obtain the user’s consent for that activity. The general purpose of the change would seem to be that users are fully informed and maintain some control over who uses their browsing history and how.

To date, I’m pleased to see that the industry’s approach to behavioural advertising more widely has been responsible and transparent. The Internet Advertising Bureau collaborates with industry players to promote transparency, user choice and education. The body has established a Code of Good Practice which is well subscribed to (see here for the IAB’s Your Online Choices website). Google is also particularly keen to show transparency; it recently improved the way it serves Gmail behavioural and contextual advertising so that the ads which it displays are not only reflective of the content of the email in current view, but also of the content of recent messages received in the same in-box. Credit to Google, they provide detailed information and strong assurances that the new practice requires no human involvement and that all ads are both entirely computer generated and family-safe (see here for How Gmail Ads Work). Google’s commitment to both privacy (for its customers) and transparency (of its practices) is underlined in its response to International Data Privacy Day today in its Google’s Privacy Principles blogpost.

However, with an OFT market study into online behavioural advertising and customised pricing already well under way and an awareness of legal and ethical challenges growing in this area, the lawyers amongst us will feel a lot better once we’ve got some “official guidance” to get our teeth into in terms of both the wider issues raised in behavioural advertising and, of course, our tasty cookies.

Branded

2010-01-27T07:23:00.000-08:00

brand
• noun 1 a type of product manufactured by a company under a particular name. 2 a brand name. 3 an identifying mark burned on livestock with a heated iron. 4 a piece of burning or smouldering wood.
• verb 1 mark with a branding iron. 2 mark out as having a particular shameful quality. 3 give a brand name to.

I’ve recently been inspired by an article from Kevin O’Keefe on Real Lawyers have Blogs on the importance to lawyers of creating their own personal brand. Although aimed at law grads and associates his Define your Personal Brand As A Lawyer post rang true to me also; as sole in-house counsel to a business which previously had no lawyer working in it, a large part of my time is making sure my colleagues understand the broader commercial value which a lawyer can bring to the business and that we’re not just here to fire-fight any disputes, check contracts or create red-tape and obstacles!

As I work in the digital marketing industry, I found Mitch Joel, in his 6 Pixels of Separation blog shared some great insight in his Top 10 Dos And Don'ts Of Social Medial For Current And Prospective Employees. It conjures up the picture of a personal brand being a 3-dimensional presence and that social media is the perfect tool to achieve that. I enjoy using social media tools to connect with the people I work with and my friends, and so Mitch’s blog was further inspiration to me to step-up a gear in relation to my own personal branding. I already Twitter as @in_house_lawyer (more followers than my personal Twitter account worryingly), so that seemed a good platform from which to take my own personal brand to the next level. It’s also a demonstration to the business I work for of the all-important value-add of an in-house counsel.

So, here it is, the next stage in my personal branding campaign, my In-house Lawyer blog. I tried to blog once before but the fear of being insufficiently profound, high-brow or intellectual or perhaps not the first person to spot a legal development stopped me from saying anything at all! However, now that I have a personal brand to develop, the purpose of my blog has completely changed as its now my vehicle for establishing my In-house lawyer brand.

Bloggers Beware

2010-01-25T03:23:00.000-08:00

I was in two minds as to whether I should author this blog under a pseudonym or reveal my true identity. As I’m looking to increase my profile in the digital law world and not planning to stir the pot of outrage and controversy, it made sense to opt to be me, but for others the blogosphere is the venue to let loose their alter-ego and to critique the world in which they routinely operate.

Enter "Night Jack", an under-cover blogger sharing his experiences of front-line policing, criticising policing strategies and politicians, using real-life and traceable examples of police investigations and prosecutions. This successful blog attracted almost 500,000 readers at its peak and lead to a prize for political writing for its anonymous author. Ironically Night Jack had not covered his own tracks well enough and a Times journalist worked out the blogger’s true identity by his own process of deduction and detective work mainly using information available on the internet. Night Jack sought an injunction to prevent the Times from revealing this information and his actual identity.

Unfortunately the rein of Detective Constable Richard Horton’s alter-ego, Night Jack, was to be cut-short. In a landmark ruling, the Court took the view that "blogging is essentially a public rather than a private activity" lacking the quality of confidence needed to gain legal protection.

In arriving at its decision the Court asked if DC Horton had a reasonable expectation of privacy? And, if he did, would any public interest argument override that right? In the analysis of the first question, it was found that claimants who relied successfully upon this recently developed cause of action, had a pre-existing relationship of confidence, or the information in question was of a strictly personal nature concerning, for example, sexual relationships, mental or physical health, financial affairs, or the claimant's family or domestic arrangements. There was no successful case analogous to that of DC Horton where there was such a significant public interest element to the information in question. The analysis of the second question was therefore academic.

As with the majority of cases this one turns on the facts, and a different blogger with a different subject-matter at a different time will no doubt yield the chance of a different judgement. But for now, bloggers beware, if your alter-ego crosses the line from personal to political/public interest commentary, writing under a pseudonym is no guarantee of your anonymity.

DC Horton received a written warning for breaching his contract of employment. With such a readily-accessible and tempting array of social media tools now available, many of which can be used to both social and business effect, employers are advised of the value in having a clear policy identifying the extent to and manner in which business information should be broadcast across them.

The link to the full script of the Night Jack case can be found here: http://alpha.bailii.org/ew/cases/EWHC/QB/2009/1358.html