The Legal department of a Company, known by multifarious nomenclatures is one of the most critical and central administrative divisions of a Company. As a company grows in size and magnitude, the complexities and intricacies between various facets of business intertwine even further. A vigilant Legal Department is a watchdog for the entire organization. Along with the Finance & Core management, the Legal Department is the major stakeholder for success of a Company.
Time and again, it has been proven that there is no option or adjustable room for Legal Compliance. Companies that tread on the wrong side have seen their wealth erode and even faced bankruptcy. To summarize, the role of Legal Department in the overall scheme of things is at an all-time high.
Many professionals on this website are Company Secretaries, Lawyers, and Chartered Accountants. As they advance further in their career, they will find themselves in unique position wherein, their opinion will affect the entire organization. Entire strategy of an organization can be affected by what a Legal functionary opines (the word used is functionary rather than head because many organizations prefer an intermeshed matrix hierarchy)
Opinion of a legal functionary, when codified in form of written words takes form of a ‘legal opinion’. A legal opinion is therefore the vantage point on which the internal stakeholders determine the worthiness of a legal department. As an aspiring in house Counsel / CS (to a lesser extent) advances in his career, he goes on working from a mere ‘filing’ person to more qualitative work (inversely applies to a law firm where quality research work may start from Day.1)
Taking this into consideration, following are the ten principals which a learning Lawyer / C.S should consider while drafting a legal opinion.
1. Try having a 360 degree holistic check (in legal jargon, perusal) of the question in hand, not just from a strict legal perspective.
Just as a court frames a certain set of key question on which it rules or issues a judgment, the best way to start on a legal opinion is to frame certain key questions on which the opinion is to be given. Framing issues or key questions helps to focus on the key deliverables that are sought through the opinion.
A 360 degree holistic view therefore should not only concentrate on the legal aspects of the issue in hand but also the real world aspects (in common parlance, Business aspects) of the situation. This is necessitated because the non-legal Departments in a Company are also major stakeholders in the Company and it is from their domain that the question is arising. With the advent of technology in our daily views, intra department communication has become very easy and can be done in a jiffy. Therefore interaction with the key stakeholders in what is generally known as a ‘team call’ helps in trying to determine the question being asked.
This kind of interaction gives a proper frame of reference to the in house counsel. By seeing the issue from the eyes of the relevant stakeholders, one can have a proper view which would otherwise be something else.
2. Remember that you are writing a corporate legal opinion, which will be for the end use of people from non-legal background and not someone from the academia.
If one wants to find the best concentration of archaic, jargon and complex language, then one can head no farther than a Court judgment. A person from normal background finds it hard to read and comprehend the meaning of a Court judgment (Due to this, the US has many laws like the ‘Plain English Act, 2010’ which require the use of plain jargon free English by governmental authorities and regulators etc.)
As many In house Counsels / CSs come from a court background / legal education, chances are that these word flow down into their daily communication (I too had this bad habit). One should remember that the primary purpose of writing a corporate legal opinion is to simplify things (rather than complicate).Therefore, to the extent possible, it is advisable that we use plain and simple language to bring out legal facts.
3. Avoid jargon, intensive quotes from Case laws and to the extent possible.
Extreme use of jargon and complex sentence destroys the core of a rather good legal opinion. It is generally seen that professionals who are fresh from academia tend to use rather heavy or complex words.
While legal technicalities may be great in Court craft and heavy litigations, it is seldom useful in normal life. One of the main objectives of an In house counsel is to simplify the rather complicated legal scenario and provide it in a lucid and simple manner to internal stakeholders.
4. Do intensive research, use good legal platforms.
With the advent of technology, everything is available at a click of button. While it is not wrong to refer to Google and popular forums, still, there is no guarantee of everything being accurate. This is especially applicable and true for legal advice. It is therefore advisable that one refer to a nice legal research platforms, good academic books and go for an expert opinion (if you have a good and reliable expert friend circle, your time and efforts may be saved to a very large extent)
One of my favourite methods is to keep regularly checking the websites of Bombay High Court (mostly for Company Law, IPR and tax matters) to just update yourself. Those who love printed material can subscribe to court case reporters like Maharashtra Law Journal posted from Nagpur (Annual Subscription). Since a Legal opinion can be subjective and open to wide interpretations, it is good to have an extensive research before arriving on a conclusion.
5. DO NOT rely solely, blindly and exclusively on Google and opinion on forums (Expert opinion on CACLUBINDIA though is mostly accurate)
As iterated in Point iv. , there is a difference between class and mass opinion. It is again emphasized that Class opinion is not a codified truth. But still, it normally prevails over mass opinion.
Try to form an opinion of your own which will be based on extensive study rather than just vague interpretations that are based on some preconceived notions. It is always better to start from an empty position rather than from an incorrect one.
6. Be firm on your opinion.
Once a legal opinion is rendered, it acts as your face value for that particular instance. If you are sure that you have rendered a legal opinion after extensive study, be firm on your stance and position. If your own faith dwindles or if there are two way answers given by you,, that may unnecessarily tarnish your value within the organization.
Therefore, it is good to accept feedback and inculcate anything that is worth it rather than just static. The crux of opinion should be firm though.
7. Be time bound.
Since stakeholders across the company including Owners/ Promoters/ Management on an In house counsel’s opinion, it is extremely important to be time bound and punctual in giving the solution for complex legal issues.
Matters that get prolonged or just tug along can loosen the interest and zeal of both the management as well as counsels in Legal department.
8. Bank on previous research material to solidify your stance
I consider Law firm to be one of the most profitable businesses not because of the need of law but because they are the best people to mine and sap out every last drop from their intellectual and research created over the course of a firm’s existence.
Since external legal opinion can involve heavy monetary expenditure, try to bank on your previous facts, researches and opinions and extract relevant aspects therefrom. The information given above is general information on functioning of a Legal Department. In the next article I’d be covering the technical aspects of the same.
(The above statement and any inference from the same is entirely my personal and limited view and does not reflect the opinion of any other person or organizations. Views are personal to the strictest terms)