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How primary law has a place in the in-house lawyers’ workflow

“Most of us spend too much time on what is urgent and not enough time on what is important.”

Steven Covey

I, like most other in-house lawyers I imagine, often find myself thinking about, or discussing with colleagues, the lack of time we have to do what needs to be done. The requirements to complete forms and other administrative tasks, attend conference calls or endless meetings, and be the first port of call for any “emergency” that arises can mean that there is little time left in the day for what we are actually trained to do: review, interpret and advise on the law.

This means that in-house lawyers often don’t have much time to refer to legislation or case law in their daily working lives and instead rely on their past experience of a similar issue or, potentially, external legal advisers, to provide the legal verification for a decision or approach.

Obviously there are questions of degree, depending on the sector you work within (for example, whether the business area is regulated or un-regulated) and there are also practical issues to consider, such as the size or complexity of a project and the available budget, which may have an impact on your ability to utilise external counsel.

Operating in a heavily regulated sector

Working in financial services, which is not only heavily regulated but also littered with “old law”, I have recently found myself having to revert to primary and secondary sources to enable me to advise on some of the more obscure and complicated queries that come my way. These are mostly stand alone “BAU” queries where it is not viable to engage external counsel and, often, where there is no budget to do so.

I frequently find myself not only referring to the primary and  secondary banking legislation “usual suspects” like the Consumer Credit Act or Payment Services Regulations but also sources like the Partnership Act 1890, the Bills of Exchange Act 1882 and The Cheques Acts, along with relevant case law. While guidance and commentary are valuable, in some circumstances these just do not provide the level of detail required, and they also fail to provide the interpretational lens required when trying to reconcile the law and a large organisation’s (often) entrenched position due to its relevant policies and procedures.

Adding value by reverting to type

So what am I saying? Simply that, as in-house lawyers, we can sometimes add more value by making the time to revert back to legislation and case law instead of relying on the commentary and guidance that may be available.

Although taking the time to read the case books or an Act may not be what your stakeholder wants when they perceive an issue to be urgent and expect a call from you ASAP, making the effort to go back to primary law can potentially improve the advice that you give them.

Reverting to primary sources and using a practical method to record your findings and then share them with your colleagues could also potentially save both time and money if you encounter similar issues in the future. The system you use need not be complicated, a simple word searchable spreadsheet or shared email box may suffice.

Although an in-house lawyer’s role is to support their stakeholders, often what the business wants you to do, or how they want you to achieve it, isn’t always what your time would be best spent doing or in their best long term interests. As Henry Ford said:

“If I’d given the people what they wanted I’d have made faster horses”!

Mark Harris

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