Every in-house counsel has a war story to tell about a challenging client they had to manage at some point in their career.
Take Maura Lendon, Vice-President, Chief General Counsel and Corporate Secretary at Primero Mining Corp. in Toronto. At one public company she worked at, it was her call as to when the blackout period was in place, which prohibits insiders from trading shares in a company. A senior executive who wanted to buy shares took issue with her position and challenged her legal advice. She had to explain why the blackout period was in play. “You are the guardian of the integrity, ethics and legal compliance of the organization and it’s important not to be shy where those issues are at stake,” she says.
She stood steadfast, yet he persisted and the debate continued.
Finally, she made it clear to him that the record would reflect her advice, and if there was an inquiry, that’s the documentation the securities regulator would unearth. He stood down. “Sometimes it’s a matter of you can’t control what someone does, but you can set up an environment that makes them think twice about going rogue,” she explains.
Challenging clients are a fixture in every workplace. Chalk it up to being human and dealing with the multiple balls that your internal clients are asked to juggle in their increasingly complex lives. All clients come with biases, anxieties and human frailties.
Some are attentive to detail; many aren’t. Some work well under pressure; others not so much. Some see deadlines as a Rubicon you don’t cross, while others see a deadline as a starting point, not an end game.
It can make the life of an in-house counsel tumultuous. So how do you deal with difficult clients?
There is no “magic bullet,” notes Ted Kelterborn, General Counsel of CI Investments in Toronto. “The
universal challenge seems to be getting people to want to engage with Legal, rather than feeling they
have to.” he says it’s about shifting the “us versus them” mentality and the misperception that the legal
department is a “cop,” rather than a business ally.
Lendon adds that a good in-house counsel can often “pre-empt” problems that arise with a challenging client. “A lot of it really comes down to communications. Anything you can do to really help understand where your client is coming from helps you bridge the gap.”
Harry Andersen, Senior Vice-President, External Affairs, and Chief Legal Officer at energy giant Pembina Pipeline Corporation in Calgary, attributes challenging clients more to the environment, rather than personal attributes. “If you have a challenging client, it means you have a challenging group and a challenging dynamic. Nothing happens in a silo between two people. It happens in groups of people,” he observes. So when things break down, it invariably revolves around poor communications. “It means the right conversation hasn’t happened between the two groups.”
While challenging clients come in different sizes, shapes and flavours, there are some common characteristics that appear frequently. Based on interviews with a variety of in-house counsel, CCCA has identified eight common client types, along with the challenges they present and some suggestions on how to manage them.
1. The Tardy Client
The tardy client doesn’t consult the legal department until it’s too late. They tend to be the #1 challenging client.
There are a variety of reasons for their dilatory behaviour. Charlene Ripley, Executive Vice-President, General Counsel, at Goldcorp Inc. in Vancouver, says the most common is “bad time management.”
The second, she adds, is lack of knowledge and understanding that they even have a legal problem or whom to approach.
Third is the fear factor. “People don’t like conflict,” so they will often put off dealing with the legal department, she explains.
Fortunately, an astute in-house legal team can deal with many of these underlying causes by being proactive.
While you can’t fix people’s bad time management, what you can do is work around them. If you know someone has a reputation for last-minute dealings, take the initiative. Use your internal network to keep abreast of what is happening within that business unit. “We do learn things from a variety of different sources,” notes Lendon. If someone has a history of coming to you at the last minute, make it a habit to “bump” into them and casually mention their pending project and ways you can help.
Lack of knowledge and understanding about when to consult Legal means that the law department has to do a better job selling its services and people, Ripley says. Engage more with clients. For example, her team meets regularly with business units in formal sessions where they discuss things like service levels and solicit feedback. “Our business partners love the fact that we care about the service.”
In-house counsel say the best thing you can do for those who mistrust Legal is show your worth and value by helping them achieve their goals on an incremental basis. Each time you can help them advance the ball, you earn a notch in the trust level.
2. The Know-It-All Client
This is the client who rejects the legal team’s advice because they know better. Sometimes they might be trained in the law themselves but not always. Fred Headon, Assistant General Counsel, Labour and Employment Law at Air Canada in Montreal, says there are “pros and cons” to know-it-all clients. “You can cut through some things that take a lot of time to explain to others.” However, their knowledge might not always be current. Nonetheless, he says, “they can ask some really great questions” and make you “rethink” your strategy.
Know-it-alls are often very “black and white,” adds Ripley. So be blunt and to the point, she says, noting that you may have to tell them their actions will lead them to the “crowbar hotel.” Also, be prepared to take things to higher levels, including the know-it-all’s boss. It won’t win you a friend, but it will keep your job as a risk mitigator intact.
3. The Flip-Flopper
The flip-flopper tells you one thing but often means something else. That or they are quick to change direction when they sense their superiors don't like how things are progressing.
The flip-flopper can leave in-house counsel hanging out to dry, notes Headon, but often it’s not intentional. “Sometimes the client can read the tea leaves and realize the plan is not going to fly with everyone else in the room and shift to plan B, while the lawyer continues to defend plan A.”
His advice is be prepared to pivot and be more flexible when dealing with the flip-flopper. As well, probe deeply to understand what they truly want, making sure you gather as much information as possible. Be prepared to develop alternatives.
4. The Free Spirit
Your department may produce the best legal memos but chances are the free spirit doesn’t read them. Free spirits have lots of ideas and energy but don’t always complete their tasks. They need to be harnessed and reigned in. You have to help them focus.
Headon says that his team “no longer issues opinion letters,” noting that clients “don’t need them” and often don’t read them. Rather, the memo goes into the file folder and the team turns to PowerPoint for presenting their findings. That requires a “conversation” and “in-person engagement where you can get feedback from the client and see the body language.”
5. The Fast-Tracker
The fast-tracker is looking to get to the top through whatever means necessary, including walking the fine line and pushing the legal envelope. They can border on being a rogue client, which, depending on your corporate culture, can be particularly problematic. If the culture is also rogue, then Lendon advises you to get out. “In a rogue culture, you can’t influence [management] as a lawyer. Vote with your feet and opt out. It creates a lot of stress.”
But if it’s isolated to a person or a business unit, Ripley says, you need to be cautious and stay on top of them. Be prepared to escalate matters up the chain of command. “You have to make sure that senior management completely understands the risk.”
6. The Yeller
The yeller is boorish and treats people badly. Lendon says sometimes the person is simply frustrated and you may need to probe to find out the source. “It may be a case a member of your team is not performing and you are not aware,” she says. It might also be related to a communications breakdown. The yeller needs to be persuaded that “if they have a problem, you are not going to make it worse; you are going to make it better,” she adds.
If the problem is habitual, in-house counsel say be prepared to call the person out on his or her conduct, or seek out HR’s help. Lendon recalls one encounter with a yeller involving a staff member. “In a calm and firm way,” Lendon told the person such conduct was not condoned in the workplace, which “diffused” the situation. Eventually the yeller was terminated, suggesting that yellers often have short shelf lives depending on the culture of an organization.
7. The Blamer
The blamer is the first person to throw everyone else under the bus for their bad decisions. Kelterborn says they are the most frustrating challenge he comes across. Blaming each other adds no value to the organization when a problem arises, he notes. “It doesn’t matter who created it.”
If you sense you are dealing with a blamer, the best thing you can do is document everything and follow up with confirmatory emails, Kelterborn advises.
8. The Scene-Stealer or Boaster
The scene-stealer claims credit for every success at the expense of others. Andersen’s advice is simple: “Go about doing your job” and don’t worry about them. His experience is that “senior leaders and management at corporations see right through that” and boasters are eventually weeded out.
Kelterborn says regardless of a client’s foibles, in-house counsel’s role is to manage and mitigate risk; you have to keep focused on that. Remember, he says, “there is no such thing as a risk-less transaction and if you have a legal department that insists on trying to reduce risk to zero, you will grind business to a halt.” And in that case, no client is served.
Jim Middlemiss is a writer based in London, Ontario.