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Strategic Legal Advice
As I change direction in my professional
life, pride of place in the 'compulsory section' falls to
strategic legal consultancy work. According to my present
plan, this will be given greater weight than my work
as a lawyer, which I will be purposely restricting,
mainly to competition law, corporate governance and arbitration
in special mandates. In the field of strategic legal advice I often work together with colleagues in law firms as part of an integrated approach to advice.
What is this concerned with?
The field of "strategic legal advice" deals with
further exploring and establishing the strategic dimension
of law by generating application-oriented, theoretical expertise
and by developing and "operationalizing" this
knowledge in a type of legal consultancy work that supplements
traditional methods. For the time being, I plan to confine
myself to providing strategic legal advice to companies
operating at an international level. In Switzerland, this
field is more likely to fall to General Counsels, especially
those of companies influenced by Anglo-Saxon practices,
and more familiar to them than to lawyers in specialist
business law firms operating internationally. In particular,
the above-mentioned paradigm shift -- with the characteristics
of legalization, "informationalization", the spread
of interdisciplinary activities, professionalization, specialization,
market orientation, proceduralization, institutionalization
and organization as well as the "tendency towards Americanization"
-- is generally more pronounced in the international practice
of law with which they are concerned, since the adaptations
to the winds of reality suggested by the paradigm shift
will have been completed more rapidly and in a more sustainable
way. In the case of General Counsels along Anglo-Saxon lines,
their appropriately adjusted and modified professional role
will have undergone a process of visible and effective change.
Essentially this has become a quasi-leadership role, and
its traditional activities have been substantially expanded
to take in areas such as risk management, public affairs,
communication, compliance and controlling, which makes the
General Counsel a key link in the modern Corporate Center
of companies operating at an international level. The corporate
strategy of these organizations and the "strategic
legal advice" integrally and exclusively related to
it, are linked, but the connections are sometimes subject
to very little scrutiny, and the relationships are hardly
vital. Having said that, in the case of some General Counsels
and in terms of the culture of certain law firms, this type
of activity is their everyday reality.
Leadership function of law as a "multi-level and multi-dimensional
chess game"
Both my own experiences and initial considered thought on
the matter have shown that strategic legal advice is a combination
of "multidimensional chess" and "multilevel
chess", a game played mainly by the upper echelons
in companies and by the above-mentioned General Counsel.
It's all about dealing creatively with the risks and opportunities
which, due to the way they are confined and determined by
the law, are essential to the achievement of a company's
key goals within the framework of the entrepreneurial process.
In strategic consultancy work, providing legal advice is
seen as a process, and the ultimate aim is to give integrated,
interdisciplinary and international legal advice. On the
whole, the process-related elements translate into integral
issue management of the legal dimension. What we are talking
about here are generally core aspects such as dealing with
legality and continuity of law at a time of change, as well
as the resulting decline in the certainty of law as well
as minimization of risk and maximization of opportunities,
as elements of the strategic leadership of the company itself.
Strategic legal advice opts for a mid- to long-term view
and (often with prevention in mind) takes account of all
significant legal factors which might influence, hamper
or endanger the pursuit of corporate goals, or even make
it impossible.
Integrated and interdisciplinary advice for the strategic
leadership
The method is interdisciplinary within appropriate boundaries
and takes into account not only legal, but also social,
political, psychological, historical and above all communications
aspects of media-dominated, virtualized global economic
activity. It is leadership-related, process-related and
results-related and it maps, as it were, a lawyer's far-reaching
perception of the law function within and by the company,
both in-house and externally. It combines a generalist approach
and judgment with the necessary specialist and technocratic
approaches of modern legal consultancy work. It gives lawyers
a role in working with management, as suggested in the question:
A General Counsel, A Navigator of Management and Steward
of "Law"?
Early identification, areas of law, key issues, mindset
The first task is to provide early and well-founded identification
of those key defining legal factors in the paradigm shift
which have reached or passed the qualifying threshold and
achieved strategic significance for companies operating
on an international level as well as for their corporate
strategy.. These include, among other things, areas of banking
law and stock exchange regulation, company law, competition
law, industrial property law, the law of nation state, international
and trans-national regulation, and tax law, in each case
including the criminal law dimension. In relation to activities,
we are talking about e.g. key issues such as corporate governance,
prevention, compliance, planning that produces a continuity
of legal effect while taking account of change, reputation
management, asset protection etc. In an individual case
for example, one might occasionally have to work out and
formulate an "integrated risk management initiative"
relating to the strategic key legal factors which have been
established in this respect, e.g. "safety and security
risks", "business risks", "political
risks", "legal risks", "reputation risks",
"corporate governance risks" and what's known
as "future risks" -- all from an integrated and
interdisciplinary point of view.
In this context, both creating a particular 'mindset' and
developing suitable 'operationalization' methods play a
crucial role. The purpose is to allow early recognition
of the risks, to remain able to act and shape events at
all times as one deals with them, and to establish an organization
relating to corporate governance and issue management, linked
to an appropriate value system, which will above all permit
and substantially encourage an opportunity-related approach
to these risks. Another point is shaping and protecting
reputation as a key value for a company operating on an
international level. This needs to be done systematically
and in a way that is sustainable, state-of-the-art and according
to "best practice", to ensure that the company's
main goals can be achieved with less interference, relatively
speaking. At the forefront would be features such as preventive
recourse to the legal dimension, an integrated use of the
legal dimension and a long-term and preventative approach
to resorting to the legal dimension.
Wiser as a result of experience?
I would like to take advantage both of my inborn inclination
to integrate elements of legal process into legal consultancy
work, and also my experience of extending the boundaries
of legal advice and turning it into integrated issue management,
and work in a way that is topical, issue-related and determined
by what is going on in the real world -- and by this work
show that the maxim "Imagination is more powerful than
knowledge" (Einstein) can be valid in the field of
legal advice as elsewhere.
My enduring curiosity about strategy reflects an interest which originally grew up, not in connection with my professional work as a lawyer, but as a result of many years of working for the Chief of Staff, Operational Training (SCOS), for the Strategy Section, a body that advises the Chief of Staff (GSC) of the Swiss army, as well as being involved in the activities of the International Institute for Strategic Studies (IISS). Working as a lawyer in a large commercial law firm over the past 20 years, I have also repeatedly (you might say as an "innocent bystander") had to deal with complex issues, processes and events which could not have been handled with appropriate professional care if I had not taken account of aspects going beyond the law. This includes, among other things, consulting on liability risks in the case of mass market products and industrial disasters, dealing with the U.S. legal system on many different levels as well as the Swiss response to class actions relating to historic disasters, the ominous effects of our media-ruled and virtualized world on corporate activities following particular occurrences or in relation to corporate activities which have come to public notice and the planning and cosultancy on simultaneous civil and criminal proceedings brought under pressure from the media and the political sphere after a corporate disaster.
Generating expertise and achieving acceptance for the method
In view of the great dearth of knowledge about "strategic
legal advice" and the lack of any effort to "operationalize"
it, we will also need to explore and establish the strategic
dimension of the law by generating application-oriented,
theoretical expertise as well as developing this knowledge
and "operationalizing" it in differentiated ways,
supplementing traditional legal consultancy
work with this new type of legal advice. We will also
need to achieve acceptance, and, in a sense, compatibility
and inter-operability both for the consultancy method and
for the professionals and managers involved in giving and
receiving this advice. The idea is to extend the area covered
by legal advice services, while not entering into competition
with the legal services relating to advocacy, but rather
supplementing them in a sensible and integrated way. In
this field, we will need to work with, or indeed train,
selected lawyers and law firms, dealing with this dimension
in an integrated way and within the framework of individual
briefs. At the end of the day, it is about establishing
the strategic dimension of the law in co-operation with
associated consultancy disciplines, particularly since some
of these disciplines have already gone a long way towards
taking account of the key defining factors of society, politics,
science, history, psychology and management as well as the
virtualized business world in which the media play such
a key role, and are calling for additional services in order
to include the legal dimension in the advice they give.
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