Center for Board Excellence and Corporate Board Member have published “Guide to Board Assessments,” a practical and digestible guide to getting the most out of the board assessment process.

The guide can be downloaded at no charge.

“An annual board assessment is a mainspring process for maximizing board effectiveness,” CBE says. “Corporate governance is not one-size-fits-all, and a board’s assessment process should be appropriately tailored to meet each board’s objectives. Performing an annual board assessment is fundamental to strong governance.”

Some of the benefits of conducting an effective board assessment are:

• Promote stronger board and management alignment
• Enhance focus on key strategic areas
• Clarify board composition needs
• Identify board culture strengths and improvements

Download the guide.

In the age of information overload, in-house counsel and C-suite executives are resolute in valuing utility above other content attributes. That these busy decision-makers prioritize actionable information and insights is understandable – but how the two groups define utility is quite different, according to the 2019 State of Digital & Content Marketing Survey.

The survey, by strategic communications firm Greentarget and consulting firm Zeughauser Group, compares the two groups’ information consumption preferences. This yielded important takeaways in an era when C-suite executives can be as engaged in hiring a law firm as in-house legal officers, who can wield heavy influence in hiring consulting, accounting and other professional services firms.

At a high level, the two groups are in lockstep – but there are significant differences. They prefer different types of content, have varying thoughts on why content misses the mark and diverge about how they can be effectively targeted on social or other digital media. The survey – in its ninth edition since its initial release in 2010 – is the first to offer such an in-depth, side-by-side comparison.

“Over the past decade, we’ve unearthed important insights about the content preferences of decision-makers, and the 2019 study offers our most compelling findings to date that professional services marketers can’t afford to ignore,” said John Corey, founding partner of Greentarget. “This year, by comparing the likes and dislikes of in-house counsel and C-suite executives, we’re providing greater context for marketers along with actionable guidance on the ever-elusive pursuit of bringing the right content to the right audiences on the right platforms at the right time.”

Comparing In-House Counsel and C-Suite Executives

• Traditional Media Still Highly Trusted – and Accessed: Both in-house counsel and C-suite executives highly value traditional media, even in the age of so-called “fake news.” C-suite executives placed the highest value on traditional media at 82 percent (up from 74 percent in the 2018 survey). Additionally, 79 percent of in-house counsel said traditional media is most valuable, about the same as the 80 percent who responded that way last year. The findings speak to this audience’s continued desire for curation and the role professional editors play in determining what stories and topics are most important.

• In-House Counsel Like Articles, but the C-Suite Prefers Interactive Charts:

In a revealing comparison about both the personalities and job responsibilities of the two groups surveyed, in-house counsel said their preferred content type was articles and C-suite executives picked interactive charts. Relatedly, in-house counsel picked educational as their most valued content attribute while C-suite executives chose relevance and ease of access. This makes sense as lawyers tend to take in longer-form information, and interactive charts enable C-level executives to quickly absorb complex information.

• What Makes Content Miss: The two groups also differed on why content can miss the mark. Fifty-one percent of in-house counsel said content misses most often because it’s “too salesy” while the same percentage of C-suite executives chose “not sufficiently relevant.

• LinkedIn Lessons: Fifty-three percent of in-house counsel said they find value in LinkedIn as a platform, but just 29 percent agree that it is effectively used by outside law firms. C-suite executives were more satisfied with LinkedIn’s content targeting, with 63 percent saying it is effective.

• Do Law Firms Overemphasize Rankings? CMOs say peer-driven rankings or listing services command more resources than any category of firm content aside from trade publications and traditional media. But just 9 percent of in-house counsel find the rankings “very important” when researching firms for potential hire. Forty-one percent say the rankings are “somewhat important,” which may suggest that such rankings are limited to a validation effect, an important consideration for CMOs allocating resources.

A Continued Lack of Documented Content Strategy

This year’s survey, which queried 100 in-house counsel and 100 C-suite executives, was also the first since 2017 to query law firm chief marketing officers (30 in total) about, among other things, their approaches to content strategy and marketing resource allocation, among other topics. While firms need strategic roadmaps to guide their content development and distribution efforts more than ever, just 25 percent of the law firm marketing officers said they had documented content strategies. That’s slightly down from two years ago.

“Law firms, just like all professional service organizations, understand how content can help build their brands and differentiate their organizations – but many are creating more content without documented strategies,” said Mary K. Young, a partner with Zeughauser Group. “Their reliance on implicit strategy is likely a response to the complexities of prioritizing certain practices or sectors within firms. Though it may be difficult for marketers to publicly prioritize certain practices, we encourage them to emphasize the types of content and distribution preferences that best meet the needs of audiences most critical to the firm’s success.”

Consilio is conducting its 2019 Law Department Benchmarking Survey covering such topics as legal spending, department organization, staff workload, outside counsel and vendor management, leadership priorities, client service delivery and technology.

The company says the project’s aim is to measure and benchmark to identify best practices. Participants’ answers will help other corporate law departments understand current trends and practices.

Answers to survey questions are confidential. And participants will receive at no cost, access to the aggregated results. Deadline for participation is July 31, 2019.

Consilio is offering any company that participates in the survey a chance to win a complimentary assessment of their external legal spend.

Participate in the survey.

PactSafe’s legal experts — after studying more than 1,000 cases from 2002 to 2018  — have identified trends and best practices for defending clickthrough terms of service in court.

The results of that research are available from PactSafe in a free download from the company’s website.

As the rate of litigation around terms of service increases (notably 626% from 2002 to 2018) businesses are increasingly aware of what they need to cover, PactSafe says on its website. While the content of online legal terms may be bulletproof, the way that companies currently track acceptance may leave them at risk.

The report covers:

• Aggregate data complied from the last 15 years of clickthrough cases
• The three different ways of forming online contracts and the success rate of each type.
• The factors that influence the court’s decision as to the validity of an online agreement.
• The types of evidence you should be prepared to bring to court

Download the report.

The NACD Risk Oversight Advisory Council has published a complimentary briefing of “Current and Emerging Practices in Cyber-Risk Oversight.”

The briefing can be downloaded from the National Association of Corporate Directors website.

“Cyber events have become so prevalent in today’s business world that it’s not a matter of if a company is affected, it’s a matter of when,” the association warns. “In a recent NACD survey, directors selected cybersecurity threats as one of the trends most likely to have the greatest effect on their companies in the next 12 months.”

This resource will help directors stay on their toes in the global cybersecurity struggle—ensuring that they are prepared to respond to cyber events, fulfill corporate risk oversight expectations, and reduce overall risk exposure.

Download the briefing.

Image by NY Photographic

A recent EY global survey of 1,058 senior legal practitioners around the world demonstrates the pressures that legal functions are currently under and how these may ultimately drive a change in operating models.

On its website the company describes the findings:

“In one of the most comprehensive surveys ever undertaken into the legal function, responses revealed that legal functions are having to balance an increase in demand against a squeeze on costs, while remaining compliant with a challenging and ever-changing regulatory environment. At the same time, they are struggling to capitalize on technological advances and are having difficulty attracting and utilizing talent resources.”

Read the survey results.

ContractWorks has published a guide to artificial intelligence and its impact on legal departments today and made it available for downloading from the company’s website.

The guide is titled “How AI Contract Management Improves the Value of the Legal Department.”

The publication covers:

• How AI is impacting legal departments today
• Where AI helps, and where it doesn’t
• Why you should identify their core challenges before implementing AI
• How to manage departmental adoption of new AI technology
• What the future of contracting looks like with AI

Download the guide.

The relationship between Microsoft Corp. and Integreon Inc. has grown dramatically since the software giant took a chance on the nascent alternative legal service industry a decade ago, but there’s disagreement about whether such a model will take off widely enough to truly disrupt law firms, reports Bloomberg Law.

“What started in 2009 as a seven-member group of Integreon lawyers and paralegals in North Dakota handling small, English-language procurement contracts for Microsoft has expanded to a team of more than 80 based in offices across the continents who review 20,000 contracts a year in 15 languages,” writes Bloomberg’s Roy Strom.

It’s still an open question whether enough corporate clients will push the envelope far enough to dramatically alter law firms’ business outlook, adds Strom.

Read the Bloomberg Law article.

Despite the increasing complexity of corporate governance, many new directors do not receive any form of onboarding, or even a job description, according to the National Association of Corporate Directors. Yet effective onboarding will equip new directors with the information and skills they need to contribute value—immediately.

The NACD has published a guide titled “Navigating the First Year: An Onboarding Guide for New Directors” that can provide new directors with essential information.

The full version of the guide is available to members of the NACD, but nonmembers are invited to download an executive summary.

The guide provides:

• The questions all directors should understand they need the answers to
• Practical advice on what to do (and what not to do) during board meetings
• A checklist process for effective onboarding and helpful directorship practices
• Information on public disclosures needed when onboarding new public company directors

Download the executive summary.

ContractWorks has published “The Contract Management Software Implementation Guide” and made it available for downloading from the company’s website.

The guide is designed to help readers identify and mitigate some of the common obstacles organizations experience when implementing contract management software.

ContractWorks says the implementation guide helps readers learn:

• Why successful software implementation is a must for your team
• How to develop a successful software implementation strategy
• What you can do to resurrect failing contract management software
• The 7 crucial steps for successful software on-boarding

Download the free guide.

The Society of Corporate Compliance and Ethics will present its 18th annual Compliance & Ethics Institute at the Gaylord National in National Harbor, MD, on Sept. 15-18, 2019.

The SCCE says the event is the primary educational and networking event for compliance professionals across all industries around the world. Each year more than 1,800 attendees from 40 countries attend the institute. Leading industry experts cover real-world compliance issues, emerging trends, and practical applications.

The institute will help participants:

• Understand new and emerging risks and develop strategies for addressing them.
• Gain insights, skills, and tactics to help develop and maintain a more effective compliance program.
• Build connections with compliance professionals at all levels and from around the world.

Register or download the brochure.

A Forbes commentary by contributor George Bradt discusses the implications of Fluor’s recent confirmation of its general counsel as CEO of the troubled company.

Carlos Hernandez was named interim CEO in early May after the former CEO resigned following disappointing quarterly results.

“While there’s no indication of improprieties, everything communicates,” Bradt writes. “The choice of a new CEO speaks volumes about the board’s direction. More often than not, the choice of a General Counsel suggests a defensive posture. We’ll see if that’s the case here.”

“They went with the lawyer. Hernandez’ success is going to be dependent on his ability to apply his governance and compliance skills to production management,” he adds.

Read the Forbes commentary.

Exterro has made available a new Gartner report titled “Defining Your E-Discovery Process Will Lower Costs and Reduce Risks.”

The report, which discusses six recommendations Gartner has for defining e-discovery process, can be downloaded from Exterro’s website at no charge.

“The goal of e-discovery is to find important files and communication that is usually spread out across an organization’s data footprint,” according to the Gartner report. “Infrastructure and operations leaders can use these procedures to better control their information and equip themselves for legal discovery requirements while improving overall maturity.”

Download the report.

The University of California at Berkeley School of Law will present a Berkeley Boosts webinar, “When Icahn Comes Knocking,” to explore best practices and recent developments in shareholder activism.

The free one-hour webinar will be May 29, 2019, 10 a.m. Pacific time.

Speakers will be Kenton King and Thomas Ivey of Skadden, Arps, Slate, Meagher & Flom LLP.

Register for the webinar.

The National Association of Corporate Directors has published a briefing that explains how audit and nominating and governance committee chairs can improve their risk-oversight strategy.

The briefing can be downloaded from the NACD website at no charge.

The report discusses such questions as: How can boards and committees continue to scale up their capacity for overseeing the major risks on their agendas? How should they address the concerns risk oversight raises among investors and regulators?

Some of the strategies discussed are:

• Use ad hoc committees to cope with expanding oversight requirements.
• Leverage evaluations and carefully review charters to ensure that committees are focusing on clearly-defined priorities and responsibilities.
• Ensure directors’ skills are keeping pace with rapidly-evolving and future issues.
• Increase meeting efficiency with prereads, consent agendas, and other tactics.
• Communicate risk-oversight priorities and processes to investors and regulators.

Download the briefing.

Facing an onslaught of lawsuits and a criminal investigation, Boeing announced the appointment of a newly created czar to oversee all legal matters arising from two deadly crashes of 737 MAX jetliners, reports The Seattle Times.

J. Michael Luttig, 64, a former federal appeals court judge who has served as Boeing’s general counsel since 2006, is now the new counselor and senior adviser to Boeing Chairman and CEO Dennis Muilenburg and the company’s board of directors, according to the Times Steve Miletich.

Dozens of lawsuits seeking monetary damages have been filed against Boeing in U.S. courts, alleging negligence on the part of the company. Statements indicate Boeing plans to take an aggressive stance in responding to civil allegations and any potential criminal accusations.

Read the Seattle Times article.

NAVEX Global will present a complimentary webinar, “Decoding Regulations: An Insider’s Guide,” on Wednesday, May 15, 2019, at 10 a.m. Pacific/ 1 p.m. Eastern time.

Speakers will be Hui Chen, former DOJ compliance counsel expert, and Carrie Penman, Chief Compliance Officer of NAVEX Global. Chen wrote the DOJ’s “Evaluation of Corporate Compliance” guidelines and can provide an insider’s view of what to include in a program and how to define effectiveness.

“Law enforcement guidelines for evaluating your compliance program are subjective, not prescriptive,” NAVEX says on its website. “Even the Department of Justice (DOJ) expresses that their guidance is not a ‘checklist nor a formula’ for compliance.”

Register for the webinar.

ContractWorks has published a guide to evaluate current contract management processes and learn best practices for vetting the right software for a company’s needs.

“The 2019 Buyer’s Guide to Contract Management Software” can be downloaded from ContractWorks’ website at no charge.

“Purchasing contract management software can be a complicated and time-consuming process for in-house counsel. Recognizing that you need a better way to manage your organization’s contracts is an important first step, but understanding what to do next can be a challenge,” the company says.

The guide covers:

• How to recognize failing contract management indicators
• How gauge software readiness at your company
• How software can help and where it can’t
• How to evaluate and understand your options
• How to ensure successful on-boarding

Download the guide.

By Greg Hoover

What value does an in-house legal department bring to the company? We are the lawyers that know our clients best. We understand the business at a fundamental level and understand how the legal environment affects operations. Often, we also serve as the buyer of outside legal services, ensuring that the company receives value for money. To outside counsel, we are something of a professional client; one that makes our living hiring other lawyers, managing the attorneys so selected, and expressing the wishes of the company. The tools and resources we use to get our jobs done are, for the most part, invisible to our clients so long as we remain the primary gatekeeper.

Just as technology has introduced a number of new tools to make us more efficient, new models like online freelance attorney marketplaces have opened up a world of opportunity, which in some cases can give the tried and true firm model a run for its money.

When to Stick with Status Quo Firm Relationships

Most in-house legal departments do not rely on a single attorney or firm to provide all of their outside services. After all, it is highly unlikely that the best attorneys in each jurisdiction and practice area needed by the company work for the same firm. Instead, we assemble a team of lawyers from our contacts. This generally yields better results for our client in terms of cost, effectiveness, and conflicts management. After all, the best employment discrimination litigator in the city is probably not the best patent attorney.

In some cases, sticking with this status quo model of retaining outside help is the prudent route to take. Those instances include:

1. If you, as the in-house lawyer, are unable to manage the freelance attorney. Some in-house lawyers are skilled managers of attorneys and support staff; some are not. Managing outside counsel, whether a firm or a freelancer, is a skill that some in-house lawyers never pick up. If you would rather not review the pleadings and just trust the relationship partner to get it right, then maybe hiring a freelancer isn’t for you. On the other hand, if you will be reviewing the work before anything is set in stone, and you track deadlines and know how to set expectations, then managing a freelancer will come naturally to you.

2. When defining the scope of a complex engagement presents a challenge, breaking out the Rolodex of known firm attorneys makes sense. In these cases, an issue comes up and the initial goal of the general counsel is simply to mitigate damage. The in-house department may not know enough about the issue to even frame the issue and define a successful outcome for the company. However, most of us are capable of doing a little research and at least getting a general idea of the type of attorney to hire and making a first pass at issue-spotting a fact pattern. If you can do that much, you can probably frame the issue sufficiently to at least get a memo from a freelance attorney outlining next steps. Then you can make the decision to parse out another piece of the case to a freelancer, expand the scope of your original freelancer, or, when necessary, hire a firm for a more full-scope representation.

When and How to Use Online Freelance Attorneys

Before we get into the when and how of using freelance attorneys, let’s pause and consider whether this new contract attorney model is really different than the tried-and-true firm model. Aren’t freelance attorneys signed to projects for specific matters really just outside counsel in all but the name? What separates the senior associate at Dewey, Cheetam, and Howe, LLP from the contract attorney available for hire on a freelance network? Or, perhaps the more pertinent question is: what separates the contract attorney Dewey, Cheetam, and Howe would have hired from the one available on one of these online marketplaces? The pool of attorneys interested in working as contract attorneys used to vary significantly by location and practice area. There are large pools of SEC attorneys in New York City; not so many in Minneapolis. With the advent of the internet and some relatively recent ethics opinions, most attorneys can now work as contract attorneys in most locations. The pool of contract attorneys available to the big firm in another city is now available to the in-house lawyer via the internet.

For smaller in-house legal teams, hiring and managing contract attorneys through online freelance marketplaces provides speed, control and affordability that cannot be achieved hiring outside counsel at a law firm. For example, many law firm malpractice policies require that a partner be assigned to a case, even if all of the work will be done by an associate who is perfectly competent to do the work. This not only adds time for the partner to review the work, but also the overhead to pay for the partner’s time. Suddenly, a 2-hour task becomes a 4-billable-hour exercise, when the in-house counsel would have probably been satisfied with the first draft! To compound matters, without a preexisting relationship, in-house counsel usually do not get to select the associate or associates assigned to their matter. This means that they will get whomever is available, even if another associate could have done the task for less money. If the firm is especially busy or the work is in a niche area of the law, the law firm is likely to hire contract attorneys anyway, and add their markup. All of this adds up to a bigger bill and less control for the client.

However, unlike the execution of a project with a contract attorney, which depends less on the direct involvement of the hiring in-house counsel, the freelance attorney model requires involvement and supervision from in-house counsel. Online platforms help by automating communication flows, and more sophisticated ones like LAWCLERK have the ability to create “Teams” of subject matter experts like a virtual Rolodex. Another benefit is the flexibility to scale up and down as projects ebb and flow.

Getting started is easy. Although each online freelance marketplace will vary slightly, I’m most familiar with LAWCLERK so this process is based on my own experience.

1. Scope the Project: To begin, define the project and deliverable that you want from a contract attorney. Remember, the contract attorney doesn’t know more about the case than you tell them. For example, let’s say you represent a Nevada corporation that does business nationwide. You learn that a company in Georgia is soliciting your customers with the assistance of one of your former employees. The employee signed a nondisclosure agreement when he began working for you, but it is not clear if it is enforceable across the country or even applicable in this situation. You want a memo on the causes of action that may be available to you in Nevada or Georgia.

2. Set a Price and Post It: Now that you know what you want to receive, it is time to decide a price. Understand that freelance attorneys are running their own firms and have overhead expenses and downtime like every firm. They aren’t paralegals receiving a salary whether they’re working or not or receiving benefits from a benevolent third party. The freelancer might not have hard office expenses or staff, but there are things like office equipment, insurance, and bar memberships to pay for. Those are real costs and must be compensated for. An under-priced research memo might be the most expensive advice you ever get. Price the work in line with what you know the project will take to complete. Once you develop a relationship with a few contract attorneys, you can poll them in advance regarding pricing.

When posting a project, the posting attorney sets a fixed price for the delivery of the project and a due date. Contract attorneys hired through the platform agree to perform the work described for a fixed fee only, so there are no surprise bills for the hiring attorney. Then, the money is deposited with the online platform provider and the project is posted. Attorneys with expertise in the relevant area of the law receive an alert informing them that a project matching their interests is available. They are then directed to the platform to submit their name and a short message expressing their interest. After the application period expires, the posting attorney selects the contract attorney they think will best accomplish the task and ask them to clear conflicts. After reviewing the relevant rules of professional conduct and the parties, the contract attorney accepts the case and receives access to the case documents uploaded to the platform.

3. Completion of the Project and Payment: Once the project is accepted, the attorneys can message each other through a portal within the platform. When the project is completed, the contract attorney will send the deliverable to the hiring attorney through the portal. The hiring attorney will then have 96 hours to approve or reject the deliverable and can be unilaterally extended for another 96 hours if needed. If the hiring attorney does nothing, the project is automatically approved at the expiration of the review period. A day or two after the deliverable is approved, the contract attorney is paid. No invoices to review, no check requests to write, no W-9 to chase. Under current law, the corporation does not need to issue a 1099-MISC to the contract attorney, as they are paid through a third-party payment platform. If the contract attorney exceeds the threshold to require tax documents (presently $20,000 per year), then the payment platform is responsible for that filing.

4. Managing Disputes: By now, you’re probably wondering what happens when you aren’t satisfied with the contract attorney’s work. With LAWCLERK, the platform will hold the funds pending resolution and serve as the arbitrator of the issue. This provides a degree of expediency and detached judgment often not available in disputes with outside firms.

5. Rinse and Repeat: Once you have received the deliverable and the contract attorney is paid, you can create another post for the next steps, be it a demand letter, pleading, or more research. You can direct a project to particular contract attorney before posting it to the community writ large. Another convenient feature of the platform is the ability to form teams with which you can build a rapport and direct work when you need someone who understands your preferences in a way that is only learned through repeat work.

I am not here to advocate replacing your entire outside counsel network with freelance attorneys. I am suggesting that it is a good substitute for matters which are well-defined and which might be handled more cost effectively outside the traditional law firm model. After all, the job of a general counsel is to ensure the legal needs of the corporation are met, and it is incumbent upon each of us to be good stewards of the shareholders’ money.

About the Author: Greg Hoover is the in-house counsel to a small division of a Fortune 100 company. His work focuses on general business law, government contracts, international sales of goods, and export controls.

The vice president of legal affairs & litigation counsel of Moet Hennessy Louis Vuitton Inc. sued her employer, claiming executives shrugged off her complaints of sexual harassment as “a byproduct of being an attractive woman who works at a company with a French culture.”

The New York Post reports that plaintiff Andowah Newton claims her harasser — a “senior level management employee” whom she doesn’t name — frequently ogled her and once said, “You are so pretty. And that beautiful smile, I just can’t get enough of it.” He also made unwanted physical contact with her, she said.

The company’s response to her initial complaints is laughable, court documents say, because “none of the individual actors in this matter is, in fact, French.”

Read the New York Post article.