Author: Sterling Miller

Almost 25 years of in-house legal experience as General Counsel, Corporate Secretary, and Chief Compliance officer of Marketo, Inc., Sabre Corporation (NASDAQ: SABR) & Travelocity.com. Prior to going in-house, I was an associate at a large St. Louis-based law firm. I serve on several advisory boards and board of directors, have written six books, and consult with corporations and law firms. I am currently CEO and Senior Counsel for Hilgers Graben PLLC (Dallas office). I am available to in-house lawyers and corporate legal departments for CLEs, coaching, consulting, and speaking engagements.

Ten Things: Best Legal Blogs for In-House Counsel (2015)

First, I want to wish everyone all the best for the holiday season and for a safe and prosperous 2016.  Second, I thought I would keep this edition of “Ten Things” on the lighter side and, hopefully, on the less wordy side too — especially after last week’s missive on becoming general counsel.   Back when I was general counsel I once told my team that if you send me something I will read it, pretty much no matter what.  I am not sure if that is a positive or a negative but it certainly kept me informed about what was going on in Legal and around the company.  I’m not saying that everyone needs to have the same approach I have to reading things.  In fact, sometimes it’s nice if someone can point out things worth reading (vs. having to dig them out yourself).   That’s my plan for this post.

Over the course of the last several years, legal blogs have exploded.  There are probably several blogs for just about any topic of law you are interested in.  Blogs can be very helpful tools for in-house counsel (or any lawyer for that matter), in particular for finding answers to legal questions quickly or for staying on top of new issues.  Over time, I have identified a number of blogs that I like to read regularly and that I think are particularly well written and useful to in-house counsel.  While I certainly hope that my blog fits this bill for you, I know there are many very talented legal writers out there, covering really interesting topics.  This edition of “Ten Things” will list some of my favorite legal blogs (and the topics they cover).  I highly encourage you to check these out over the next several weeks and if any interest you, follow them regularly. Or just keep the list handy in case you need it later down the road.  So, and not in any particular order, here are my top ten legal blogs for in-house counsel (2015 edition):

(more…)

Ten Things: Becoming General Counsel

The first substantive post I wrote for this blog in November 2014 was titled “How to be a Successful In-House Lawyer.”  Over the past 12 months, I have heard from a number of you with a slightly different question: how do you become general counsel?  In particular, what skills should someone develop if they have their eyes on the big chair?  As we come to the end of 2015, I thought this would be an excellent topic to write about.  If you already are general counsel, congratulations!  Hopefully the points in this post ring true to you.  If you aspire to become general counsel (or are looking for an upgrade), now is the perfect time to start thinking about your game plan for 2016 and beyond both in terms of developing needed skills and ensuring you are on the “radar” of the right people.  If you are outside counsel, you can use these points to help your inside client attain their goals.

I was fortunate enough to have been the general counsel of two companies.  While each company required different skills for both the legal department generally and for the general counsel seat specifically, there was also a lot of overlap.  I suspect the overlapping parts I experienced are the same for most companies.  I also believe that the core skills needed for the position – including operational and strategic excellence – are the same here in the U.S. and across the globe.  This edition of “Ten Things” will set out some of the things you will need to think about, know, or master on your path to becoming general counsel:

(more…)

Ten Things: The First Year – An Index of Posts (November 2014 to November 2015)

As most of you know by now, I retired from Sabre Corporation in November 2014 as General Counsel, Corporate Secretary, and Chief Compliance Officer.   Shortly after that, I began the “Ten Things You Need to Know as In-House Counsel” blog, even though I had never blogged before or thought anyone would be that interested in what I had say.  My goal at the time was to write down a lot of the hard (and easy) lessons I learned over 20+ years as an in-house lawyer and share them with you.  Today, that’s still the goal and, as of November 28,  I am celebrating one year of posts – 28 in all!  My plan is to keep going until someone tells me to stop (most likely that little voice in the back of your head that says “enough is enough”).   We’re not there yet, so lots more planned for Year Two!

As always, thank you for reading the blog and for sending me your comments and ideas for future posts.  I do read them all and I have used a number of them already (and will continue to, so keep sending them).  Thanks to all of you who have taken the time to click on “follow”, regularly read the email updates I send out, and forward the blog to your friends and colleagues. I also want to thank the good folks at Westlaw, LexisNexis, and Texas Lawbook for republishing a number of the posts in their publications for in-house counsel.

(more…)

Ten Things: Preparing for When “Bad Things” Happen

Unfortunately, the world we live in can go from good to shockingly awful in a matter of hours.  There is no starker reminder of this than the horrific events in Paris on November 13, followed by the terrorist assault on a hotel in Mali just days later.  Besides terrorism, disasters arising from natural events (hurricane, pandemic, earthquake, tsunami) and man-made events (plane crash, fire, cyber-attack, workplace violence) lurk in the shadows as well.  This is true for both individuals and businesses: tragedy does not discriminate.

One of the most important tasks you have as in-house counsel is to help ensure that your company is prepared for when disaster — man-made or natural — strikes.  Protection of your fellow employees and corporate assets/shareholder value should always be top of mind.  In some companies, planning for disaster falls within the Risk Management Department, in others, it’s a mixture of different departments, including the Legal Department. Some companies simply have not gotten around to planning for disaster. Regardless of where your company sits on this continuum, Legal has a role to play in assisting the company plan for dealing with a crisis.  If not already the case, you should ensure Legal has a seat at the table for such planning. This edition of Ten Things discusses things you can do as in-house counsel to help the business plan for when bad things happen:

(more…)

Ten Things: How to be More Productive Every Day

As in-house counsel one of the questions you frequently ask yourself is “how am I ever going to get all of this stuff done?”  Don’t worry, you are not the only one asking that question.   In the in-house world, there is never enough time, money, resource, or people to get to everything that needs to be done.  If you’re someone who cannot live with this type of situation, then you will not be happy as an in-house attorney.  On the other hand, if you do not faint at the sight of an endless “to-do” list and a decreasing legal budget, you’ve overcome the biggest hurdle and you’re probably interested in trying to figure out ways to get more done within the hours you currently work and still leave some time for your family and yourself.  I have written about using technology to increase productivity but there are other things you can do.

First, let me say that I struggled with this problem almost every day I was in-house – especially when it came to balancing out time spent on work vs. time spent with my family.    I put a lot of thought and effort into trying different things to help me be more productive at the office so I could get myself out the door at a reasonable time every night.  I didn’t always get it right, but over the years I found a number of things that did help.  This edition of Ten Things will share some of those ideas on how to be more productive every day.

(more…)

Ten Things: “Safe Harbor” Agreement Invalidated – What Should I Do Next?

Earlier this year I discussed data privacy essentials for in-house counsel (click here to read).  The post discussed a number of basic data privacy issues, including the 2000 U.S.-EU Safe Harbor Agreement.  The agreement allows U.S. companies that register and agree to its terms to legally transfer personal data from the EU into the U.S.  The agreement was necessary because the European Commission (the “Commission”) determined that the U.S. did not have “adequate” data protection laws and, therefore, without such an agreement the ability to transfer personal data out of the EU and into the U.S. was limited due to provisions of Article 25(6) of the 1995 Data Protection Directive.  The Safe Harbor Agreement remedied the problem by creating a mechanism under which U.S. companies could agree to apply core EU data protection principles to personal data and subject themselves to regulatory oversight by the Federal Trade Commission or the Department of Transportation.

Last week (October 6, 2015) the European Court of Justice invalidated the Safe Harbor Agreement.  The court found that the agreement did not provide “essentially equivalent” data protection to EU citizens (primarily because of the then unfettered access to personal data by U.S. intelligence agencies under the PRISM program).  The court also held that local Data Protection Authorities (DPAs) are empowered to independently assess whether a non-EU country provides adequate protection regardless of whether the Commission has already made such a determination that it does.

The result is a big mess regarding how companies that relied on the Safe Harbor Agreement can legally transfer personal data out of the EU and into the U.S. and how things will work in the future if DPAs can override a Commission decision on the adequacy of data protection in non-EU countries.  This edition of Ten Things discusses some practical things U.S. companies should do next in light of last week’s development.

(more…)

Ten Things: The Attorney-Client Privilege – What You Need to Know

You’re having lunch with someone from the business and talking about a project that’s not going well and could lead to unhappiness on both sides – your company and the customer.  Your buddy is spilling her guts about several of the problems they are encountering on the project and her concern that they may not be performing up to the contract terms.  Your first thoughts are that she’s being overly harsh on herself and the team as some of the things she is mentioning may not be a big deal and there is time to correct them.  Then she tells you not to worry about it too much because she and her team have been marking all of their emails and other documents discussing the problems as “Attorney-Client Privilege” so that the team can write down whatever they want and it will never be seen by the customer.  Oh crud, (or words to that effect) you think.   This is a real problem.

One of the in-house lawyer’s most valuable tools is the attorney-client privilege and the ability of the client to ask pointed and raw questions for the purpose of obtaining legal advice.  If not utilized properly, however, this tool can turn into a ballistic missile aimed right at your company.  The applicability and proper use of the attorney-client privilege is a very misunderstood area, especially in the in-house world.  There are a number of things both counsel and the client need to know in order to avoid common mistakes and provide the best possible case for claiming the privilege.  Since some courts are looking at in-house counsel assertions of privilege with a wary eye, it is now more important than ever to get this right.  This edition of Ten Things will discuss what is necessary to claim and preserve the attorney-client privilege.

(more…)

Ten Things: Insurance Law Basics for In-House Counsel

Looking back, I realize I spent a good amount of time working on insurance-related issues as in-house counsel.  Sometimes it was helping the insurance team figure out what types of coverage were needed, other times it was about filing a claim or trying to answer questions from senior management about how the policies worked, and – unfortunately – several times it involved litigation with the insurance carrier over its failure to pay claims.  I was thinking about insurance issues because my good friend and noted insurance law guru, Amy Stewart, recently published a book entitled “Texas Insurance Coverage Litigation – The Litigator’s Practice Guide (2015).” Reading through the pages I recalled various issues I came across over the last 20-something years.  Even though it’s aimed at Texas law, the book has very useful general discussions about insurance law issues.

As in-house counsel, you (or someone on your team) should have a solid understanding of basic insurance law issues.  While hopefully your company will never need to make a claim against its insurance, if it does, Legal’s ability to spot issues and help guide the process can mean the difference between a quick payout or a long court battle with the insurer.  You do not need to become an insurance law expert, but you should know the basics and know when you need to get help from outside counsel.  This edition of “Ten Things” will discuss some things you should be familiar with regarding insurance purchased by your company.

(more…)

Ten Things: Common Ethics Issues for In-House Counsel

I was in-house counsel for over 20 years and served as Chief Compliance Officer for a good part of that time.  One of the challenges I recall for me and my legal team was finding practical advice for in-house counsel around ethics issues.  We held a number of CLE presentations on ethics every year — helpful in terms of yearly mandatory ethics-related CLE hours.  While welcomed, the presentations generally left me less than satisfied because most of them were heavily focused on parsing out the text of the relevant Rules of Professional Responsibility (in our case, Texas), with a lot of focus on words like “shall” and “may.”  I am not saying this is not important, but what I came to realize is that many of the ethics issues I dealt with as in-house counsel were broader than what a specific section of the rules did or did not mandate me to do.  Instead, what I really needed was a general awareness of my different ethical obligations (including those under the rules) and whether I knew or could easily find the answer to my problem, or if I needed to ask someone for help to figure out the next move.

This edition of Ten Things will take on that challenge and discuss some of the basic ethics issues faced by in-house counsel and how to deal with them or what to keep in mind as you analyze the situation.  There are definitely some traps out there for the unwary.  Hopefully, after reading this you’ll have a better understanding of some of the key things around ethics you need to keep in mind as in-house counsel and when you may need to ask for help.  Apologies to my international readers as this is a pretty U.S.-centric discussion though I think the themes apply globally.

(more…)

Ten Things: Creating a Client Satisfaction Survey

In January, one of my posts dealt with setting yearly goals for the legal department (click here to read).  One of the goals was sending out a client satisfaction survey, i.e., asking those in the business to weigh in on questions related to their satisfaction with the services provided by Legal.  There are a number of reasons why you would want to send out such a survey, primarily to gather helpful data and comments about how the legal department is performing and how it is perceived throughout the organization; the second being to use the survey as a tool to market and promote Legal by reminding people that the department is there, that it provides valuable services to the company, and that you are directly seeking their input into improving the quality and value of the services the legal department provides.

This edition of “Ten Things” will walk you through the process of creating, distributing, and analyzing the results of a client satisfaction survey.  Though the discussion deals with in-house counsel sending a survey to their internal business clients, the “why” and “how” apply equally to the relationship between outside/in-house counsel and outside attorneys can easily use this post to create a satisfaction survey to distribute to their in-house counsel clients.  If you intend to put out a survey this calendar year, now is the time to get started creating it for distribution after the summer holidays.

(more…)