Strategic Legal Advice
As I (Prof. Jens Drolshammer) 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. After retiring in 2008, advisory activities will be continued to a reduced extent in addition to academic publication projects.
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, Jens Drolshammer 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.