The Legal Update

What are the big concerns facing legal departments this year that are keeping GCs up at night? There were some very interesting insights from Morrison and Foerster’s Fall 2017 Up At Night report, examining the key themes and issues that are pressing on GCs’ minds. We take a look at some of standout results from the study…

#1 GDPR and Other Global Regulatory Challenges

It’s the acronym that’s making every lawyer, regulator and business owner quake, but GDPR is part of a larger picture of global regulatory worries that GCs are facing. A fragmented regulatory environment on an international scale was identified in the study as one of the major causes for concern for legal departments, with 72% of respondents citing regulations and enforcement as a ‘very important’ challenge. The sheer pace of evolution of data security and privacy regulations can leave departments short of the time and resources needed to address the problem. Our advisory article on GDPR offers some tips on keeping departments on track to comply with the new regulations.

#2 Intellectual Property

Along with regulations and enforcement, intellectual property is the subject that has seen the biggest increase in imbalance between time spent on the issue and the level of importance it is deemed to have. Global regulations covering data privacy and intellectual property are themselves playing catch up with the ever-evolving means in which we produce and share intellectual property, so it’s little wonder that GCs are fretting about how to apply current laws to new circumstances, and realising the need to keep up with new enforcements with the same level of budgets and resources. Drilling down further into the responses, 52% of GCs described enforcing IP rights and trademark/copyright infringement as their primary concerns in the realm of intellectual property.

#3 Budgets – Doing more with less

As a more general theme, budget and resources restrictions repeatedly come up as a major concern in all issues highlighted in the study. From risk and crisis management to litigation, the worry for most GCs seems to be the availability of financial and team resources to dedicate to the issues.  The needs of the business and the state of the regulatory environment are the primary drivers influencing changes in demand as we can see below.

Graphic courtesy of Morrison Foerster/ALM

#4 Resource Crunch

To compound the problem of complex issues and stretching budgets, legal departments are also facing a resource crunch. Many GCs cite that their departments simply do not have the necessary finance, staffing and technology available required to meet the challenges they face. One way to remedy staffing shortages is to increase legal outsourcing and work with legal services companies, such as Obelisk Support, who can provide temporary support for legal teams. Adopting legal technologies can also be an efficient way to speed up and automate repetitive low-skills processes, freeing up valuable lawyer time to deal with more complex issues. For regular updates on Legal Tech, Artificial Lawyer is a good place to start. One particular concern quoted by respondents is the lack of resources to train staff for compliance purposes (see #1 GDPR). Companies will be under pressure to assess their budget priorities to tackle this issue.

 #5 Organisational Misalignment

Possibly as a result of resource constraints, there is a suggestion that the time being spent on addressing those concerns amongst GCs is much less than the perceived importance of the issue. It seems that departments are also yet to implement measures to ensure organisations avoid silos of information and procedural overlaps and clashes. With no improvement in the disparity between the Spring and Fall 2017 studies, the conclusion drawn is that legal departments are in danger of becoming overwhelmed, and are yet to find a solution. Reviewing internal processes to streamline and avoid crossovers between departments is a time-consuming but necessary exercise that GCs would greatly benefit from.

Graphic courtesy of Morrison Foerster/ALM

#6 Privacy and Data Protection

Becoming ever more pertinent in our daily lives, GCs have a whole range of new and evolving issues relating to privacy and data that can mean very real consequences of litigation, reputation and trust loss. But it’s interesting to see exactly what privacy and data issues GCs are troubled by – and more interestingly perhaps, the ones they appear to be prioritising less. The following shows the percentage of respondents who deemed concerns ‘not important’ – that the lack of necessary technology is not a concern for many is somewhat surprising, considering aforementioned concerns over technological resources, and that legal departments more generally are highlighted as being slow to adapt to new technological advances.

Graphic courtesy of Morrison Foerster/ALM

#6 Cyber Security Threats

Cyber security was the biggest and most specific concern under the theme of Risk and Crisis Management for GCs, accounting for nearly 60% of all the risk & crisis management concerns expressed by survey respondents. It is an issue that has seen the most rapid rise to the top of the priority list, so it is little wonder that participants cite resource restrictions as one of the main challenges they are facing in tackling cyber security threats.

#7 Outsourcing Work

Coming back to #4 Resource Crunch, strategic sourcing is a theme connected to the resources constraints and increasing complexity of issues to be tackled. GCs are challenged by the need to source an ever increasing variety of legal expertise, in the most cost-effective manner. It appears that budget concerns are behind many of the decisions to source work to a supplier, as well as the need to bring in expertise that is lacking in the department. We predict that alternative service providers are going to become a bigger part of this picture in 2018 and beyond. North American trends also show that working with legal suppliers who value diversity, inclusion and other responsible business practices will soon be as important as negotiating their budget or scoping the work.

Graphic courtesy of Morrison Foerster/ALM

While some of these themes are familiar concerns for GCs, many are on new and unknown legal territory. Without the in-house resources available, GCs are going to need to become more agile to source and make the most of available expertise.

The Legal Update

It was quite a year, but 2017 is (finally) over and 2018 is starting strong. Here, we highlight the Internet’s pick of 2017’s best legal blog posts and most memorable stories on The Attic. These are the inspiring professionals and thought-leaders who have shared their Michelin kitchen stories or who take us behind the scenes of their legal department. Our own best-of lists also got their fair share of clicks and acknowledged stellar talent in the legal sphere.

Without further ado, here are our top 10 legal blog posts for 2017 on The Attic, in growing order of popularity.

#10 How To Keep Up with Company & Commercial Law

New tax and insolvency rules, not to mention on-going political changes in U.S. and U.K. affecting global trade and exports have increased the demand for corporate lawyers for both local and multinational companies. Of course, it means for those providing legal services in corporate law it is more important than ever to be ahead of the curve in your expertise and resources.

Read the rest here.

#9 Redefining Success: The Myth of Having it All

What we still currently define as success is an outdated model of money and power. When we exclude the facets of life that can attribute success to an individual, we forget that for many people a large part of an individual’s perception of success is not just about work but also about family, and about balance. There are many campaigners and high profile women who are turning away from those ideas and redefining success on their own terms.

Read the rest here.

#8 The Discounted Value of Working Mothers


Work-life balance is a zero sum game, as employers make the assumption that mothers cannot be equally committed to their family and their work – so working mums suffer from ‘discounted value’. This is as ludicrous as it is unfair. Working mothers are way more focused and organised once they return to work – in fact, 73% of women say they are better employees as a result of becoming a mum. Having advised and encouraged hundreds of women facing this situation to continue working flexibly, here is the best way to approach it.

Read the rest here.

#7 Snapshot: Henrieta Iyer, Obelisk Consultant

Tell us a bit about the jobs you’ve had – how has working differently benefited you?

I have been lucky to have worked on two long term assignments. The first one was for the Equities Legal team at Goldman Sachs and lasted 1 and 1/2 years. I felt both challenged and independent in this role and Obelisk was helpful in negotiating working hours that suited my personal life, all in all a fantastic way to return to work.

Read the rest here.

#6 The 15 Best Legal Podcasts for Lawyers to Listen to in 2018

best legal podcasts

Legal podcasts are an excellent way for lawyers to stay current and up to date with their understanding and interpretation of the law. In no particular order, we take a look at the best ground-breaking legal podcasts, well-established and new, to add to your 2018 listening-list.

#5 Black History Month: Debbie Tembo, Obelisk Client Relationship Manager

As October and Black History Month comes to an end, Debbie Tembo reflects on her career journey and the importance of identity and diversity in her work.

Read the rest here.

#4 The ethics of lawyers – what makes them lose their moral compass?

How do lawyers behave when the commercial drives of a business push the boundaries of ethical conduct? This is the core question that was discussed in an insightful talk given by Professor Richard Moorhead to clients and consultants in The Attic.

Read the rest here.

#3 Top Blawg: The Best of the World’s Legal Blogs 2017

Legal blogs, or blawgs as they are sometimes known, are changing the way that law is discussed and debated in the industry. Legal blogs can be a valuable outlet and asset for lawyers and companies alike: acting as a marketing tool for your expertise, and allowing some creative headspace to examine issues of personal intrigue outside of your own work.

Read the rest here.

#2 Mark Maurice-Jones, General Counsel at Nestlé UK & Ireland, discusses Flexible Working

The Attic recently caught up with Mark Maurice-Jones, General Counsel at Nestlé UK & Ireland, to discuss legal team management and flexible working. With 15 members working with the company’s United Kingdom and Ireland divisions, Maurice-Jones’ legal team focuses on internal business partnerships to proactively shape and challenge the company’s business agenda. For Maurice-Jones, flexible working is a common sense work arrangement for modern lawyers – here, he tells us why.

Read the rest here.

#1 What This Michelin Star Chef Has in Common with Lawyers

Claudio illuminati Michelin Starred Chef

At a recent client event, Obelisk Support welcomed one of our most interesting guests to date–Claudio Illuminati, Michelin star chef. On the surface, it may have seemed that chef Claudio did not have much in common with our audience of general counsels, but through candid anecdotes and quiet confidence, he drew some very interesting parallels between the culinary life of high-pressure kitchens and the law.

Read the rest here.

The Legal Update

The Attic recently caught up with Catie Sheret, Senior Vice President, Associate General Counsel and Chief Privacy Officer at Pearson to discuss the new GDPR regulation.

1. What is GDPR?

GDPR stands for the General Data Protection Regulation. It’s a new European regulation adopted two years ago that will take effect on May 25, 2018. It replaces the current directive and is designed to harmonise data protection rules with minimal deviations in the way they’re applied in each country. Compared to the current legislation it has increased extra-territorial effects, meaning entities that are selling/supplying services to European Union (EU) data subjects are subject to these rules, even if they are not paid-for products or services, and even if the controller is neither in the EU nor process the data in the EU.

Overall, GDPR doesn’t introduce a massive amount of change from the current legislation, but it is a huge talking point due to the following:

  • Sanctions: Failure to comply can result in potentially huge fines –  up to €20M or 4% of a company’s worldwide turnover.
  • Accountability: Responsibility is transferred from the data subjects trying to enforce their rights to the company having to demonstrate that it complies with the legislation.
  • Breach notification requirement: This doesn’t currently exist in many EU countries. You need to be ready to deal with data security breaches very quickly. With recent high-profile breaches and the reputational backlash, there’s a lot of sensitivity around that, and boards are really taking notice.

2. What is GDPR compliance and what are its implications?

A description frequently used is that this regulation is “an evolution, not a revolution.” Robust data protection laws exist now but the risk of fines and requirement for accountability are factors that are really changing the way people think about them. This means a stronger focus on bringing organisations into compliance with the legislation, and for some this involves working to bring compliance first with current laws, then the additional requirements of GDPR.

As far as accountability is concerned, there are a number of aspects to consider. A key one for us is compiling our ‘records of processing’. There are varied views on what this requires, ranging from very detailed data inventories to something more high level. In brief, you need to record what personal data you have, where it came from, how long you’ve had it and where you’re keeping it, what you plan to do with it, where the risks and protections around it are, and what level of international transfers are going on.  For a large global organisation like Pearson that’s a complex picture. It’s even further complicated by the fact we are often acting as a data processor for our customers rather than a data controller. But once this is done, it really helps support lots of other activities required by GDPR, such as managing user rights, conducting risk assessments and implementing privacy by design.

3. What does GDPR mean for a legal team like yours?

We are 150 globally in the legal team, including about 70 lawyers as well as other legal professionals, administrative staff and paralegals. For us, GDPR is an area we need to stay on top of, since data privacy is identified as one of our key risks. More broadly, data privacy is an area we take very seriously. We take our responsibility to protect our customers’ and learners’ data extremely seriously and have systems, processes and staff devoted to implementing such security controls, and verifying data protection, across our business.

In recognition of the importance of data privacy for us, in 2014 we hired an expert data privacy lawyer who set up our Data Privacy Office as part of the legal team. Pretty quickly, the team grew to six people who are all privacy professionals or lawyers, based in the U.S. and the U.K.. We also get interim people to help as needed, such as a dedicated resource at the moment around programme development.

Fortunately, there’s a lot of overlap between what’s needed for the global privacy programme and what we need to do to comply with GDPR, so the whole team work closely together though do have some specific areas of focus. Increasingly, global regulations are coming into line with EU regulations. Our UK team  is very focused on GDPR and though there might be nuances in some countries, we aim to achieve the same high standards outside of Europe. In practice, some country-specific regulations add complexity and make it challenging for us to take a global approach.

As sometimes happens in law, it can be tricky to know how to deal with different concepts in different countries. Take reliance on consent and legitimate interest under GDPR. That concept (‘legitimate interest’) is not widely understood nor part of the law outside Europe. Colleagues or clients in the U.S. have no idea what that means. And if we’re trying to come up with a global privacy notice that works universally, it can take some work to get the wording right. Lawyers are good at playing with language!

4. How do you keep up with market practice?

We are in a strong position as we have this dedicated team but compliance and awareness needs to extend beyond our team to the whole organisation – I’ll talk more later on about Awareness Week and other ways we address this. Our lawyers are bombarded by webinar invitations by various law firms and other suppliers, and a lot of our legal team staff attend webinars and in-person data protection training sessions because it’s useful to hear the information in a different format sometimes. It’s helpful for all of us to hear about market practices, both internal and external, and from there we can build targeted training that’s relevant to our lawyers. For example, one area we’re focused on is training in how to manage subject access requests which may get more numerous. Commercial lawyers handling contracts also need to be aware of the new requirements in both customer and supplier contracts, and it is helpful to understand how other organisations are approaching this – so we’re watching what approach large suppliers like Google, Salesforce and others are taking.

To get to know about market practices, LinkedIn is incredibly useful. You can find some very knowledgeable professionals regularly blogging, suggesting others’ material and being very quick to post updated regulatory guidance such as that coming from the EU regulators’ advisory body known as the Article 29 Working Party (WP29) (soon to be known as the European Data Protection Board (EDPB)). I try to follow and connect with lawyers and privacy professionals who understand more than the theory, who also know what to do in practice. And what is just as useful is seeing knowledgeable professionals challenge the views of others, it can really help highlight common misunderstandings with what is a complex regulation. GDPR is an area where you have to be very careful about misinformation. The Information Commissioners Office (ICO) has a blog series dedicated to busting GDPR myths and their GDPR page for organisations is very helpful. Professionals need to learn to navigate between what’s right and the distortions.

5. What is your timeline in rolling out GDPR processes?

Our data privacy office started working on our GDPR programme around two and a half years ago, so when I started working on GDPR a year ago, there was already a plan in place. Obviously it is constantly evolving. Recently, an external consultancy came to conduct an in-depth analysis of our GDPR readiness and they gave us a plan on points that need to be improved, such as refining our privacy impact assessment process and updating our incident response plan. As well as acting swiftly on these suggestions, we are in the process of getting our supplier contracts ready and looking to see how we should update our customer contracts to comply with GDPR.

Breach readiness will be a big area of focus for the next six months and for this we are working closely with the information security team. This includes lining up credit check organisations and eDiscovery vendors, so we are prepared should the worst case arise. In case of an emergency, you don’t want to spend 2 weeks lining up external support to deal with your situation. The turnaround time on breach notification will be 72 hours which is incredibly short when you take into account how difficult it can be to determine exactly what has happened.

6. What are the main challenges facing legal teams?

One of the main challenges relates to grey areas, aspects of the regulation that are still without consensus. For example, the notion of consent: The ICO (UK regulator) published some draft guidance on the new requirements relating to consent in March 2017, but it is still not finalised, and organisations still don’t know when to expect it as the ICO is waiting for the WP29 to publish theirs first. Other areas on which final guidance is still awaited is in relation to contracts between controllers and data processors, children’s data, and accountability, including documentation. We have had to go ahead with our preparations without the benefit of this given the size of the task for a large organisation like ours, and may need to make changes if our chosen approach needs refining once the guidance comes out. And that’s another key challenge – addressing a compliance challenge which requires the whole organisation to engage and be aware, not just the Legal and Information Security teams.

I do recognise we are fortunate to have dedicated resources for this project – this might represent a daunting task for a smaller organisation with a small legal team without specific privacy expertise. In that case, the importance of a risk-based approach is the only practical way to approach this. Again, there are plenty of useful resources out there.

7. How do you ensure that GDPR processes are followed at every level in the company?

A combination of bottom-up and top-down involvement seems to me to be the best way to approach this. It’s important to have a good governance structure to formalise this support, which also helps meet the accountability requirement in showing how compliance is driven. In our case, this takes the form of an executive committee, a steering committee of senior leaders from every business unit across the organisation, and a champions network of 80+ from all countries, office and business teams to help us with day-to-day engagement throughout Pearson.

We also organise an Awareness Week every year during which the mandatory annual training is issued. We hold webinars, local in-person training, run quizzes and post blogs, stories and guidance on our intranet. Our CEO and other executives filmed a short introductory video to underline the message that this is of vital importance to the company. We really try to present the concepts in very human and personal ways. For instance, we recently ran a story about a colleague who had been the victim of identity theft, and the impacts it has had on her life. That got a really good response. Hopefully that helps people understand why it’s so important to do everything we can to protect the personal data that is entrusted to us.

8. What resources would you recommend to a legal team about to roll out GDPR?

In terms of resources I’d recommend:

  • ICO website – GDPR for organisations is here. It has useful guidance on compliance activities like the 12 steps to take to prepare, and a readiness checklist, plus more in-depth materials on things like data privacy impact assessments and marketing guidance.
  • Isle of Man data protection commissioner has some really good practical easy-to-follow tools and information.
  • Many law firms provide great materials, but I particularly like Fieldfisher’s Privacy Law Blog and Hunton & Williams Privacy Law Blog (one of the most global sources of information).
  • Good industry bodies to get involved with are the IAPP, Future of Privacy Forum and the Data Protection Network, though there are many others.

We are very grateful to Catie Sheret for sharing her GDPR implementation expertise in such detail and for providing additional resources to help fellow lawyers get on the right GDPR track. 

Making Work, Work

The Attic recently caught up with Mark Maurice-Jones, General Counsel at Nestlé UK & Ireland, to discuss legal team management and flexible working. With 15 members working with the company’s United Kingdom and Ireland divisions, Maurice-Jones’ legal team focuses on internal business partnerships to proactively shape and challenge the company’s business agenda. For Maurice-Jones, flexible working is a common sense work arrangement for modern lawyers – here, he tells us why.

Defining Flexible Work

Starting with the basics, we wanted to know how flexible working was defined at Nestlé UK & Ireland. As it is such a recruitment buzzword, it’s important to know what the phrase encompasses.

“At Nestlé,” said Mark Maurice-Jones, “we have a policy that discusses the various elements of flexible work, whether it’s a number of working hours, a reduction of working hours, a reduction of number of days or working from outside the office. All these are part of the flexible working policy, a policy that’s updated regularly (the current policy dates from 2014) and that applies to all employees in the United Kingdom and Ireland.”

Why Flexible Working?

When you factor in that any of the team do not live close to the location of Nestlé UK & Ireland close to Gatwick Airport, work flexibility becomes a powerful employment tool as well as a driver for a better work-life balance. Indeed, the goal of the flexible working policy at Nestle was to address diversity and inclusion, and also to make sure that people enjoyed a good work-life balance.

In the legal department, several people take advantage of it, particularly when it comes to working in different locations. For two members of the legal team (male and female), working a 4-day week helps them achieve a better work-life balance. Commute is also a big incentive to take up remote working: Issues with public transport? Working from home solves the problem. In this particular instance, work flexibility helps reduce levels of stress.

Last but not least, the type of work they do in the legal depart lends itself to flexible working options. Law is about talking to people; it’s a lot of email correspondence and meetings. “You don’t necessarily have to be located in any one place to do these things,” says Maurice-Jones.

Successes and Challenges of the Flexible Working Lawyer

For Maurice-Jones, flexible working makes a positive difference for everybody. “With the train problems from London to Brighton over the last year,” says Maurice-Jones, “The policy has helped my team on the days that there were strikes.” He adds that working from home has also helped in other instances. “Our office has an open plan environment and it can get a bit noisy. If people need to focus and write something, it is more efficient for them to work from home.”

The feedback on flexible working is very positive and people are appreciative of its impact on their work-life balance.

However, flexible working can only work as long as Maurice-Jones and other lawyers on the legal team continue to have cohesivity within the team and with people working remotely. “I come into the office most of the time,” says Maurice-Jones. “If you come on a Tuesday and you don’t connect with your colleagues until Thursday and you’re working on a joint project, then this can be problematic.”

How to Ensure Seamless Communication within the Team

To keep abreast of everybody’s work, it’s important to get everybody around a table in person on a regular basis. Monthly team meetings plus shorter weekly meetings bridge the gap on smaller topics with team members at the office. Some topics tend not be discussed remotely, but rather when the whole team is together during meetings. Indeed, each of the lawyers tends to be working with their business unit and team meetings are a great venue to update the rest of the team, on projects that are vertical or transversal.

Beyond team meetings, the right communication tools are essential to communication channels flowing both ways. Between telephones, email and Skype, keeping in touch on everyday tasks is not difficult. You can find a lot of information from your iPhone without having to be there and you don’t need to visit the library for legal texts either. While we take this access to information for granted nowadays, it was impossible 10 years ago and shows how much the world of in-house legal professionals has evolved.

A Trust-Based Team Organisation

To naysayers who argue that flexible working doesn’t mean equal pay, Maurice-Jones counters that his team lawyers are judged on their work output and not input. He says, “provided that everyone has very clear objectives to achieve, it doesn’t matter where or when the objectives are completed. People should only be judged on their output.”

To young general counsels or team leaders, Maurice-Jones recommends to try flexible working. “Go for it,” he says, “people find it motivating. It allows for work-life balance and it generates trust. It’s a very good thing to do. If you want to attract the best people, you need to offer flexible work options, otherwise you’ll be ruling out a lot of people and miss out on talent.”

On legal team topics, Bjarne Philip Tellman’s Building an Outstanding Legal Team: Battle-Tested Strategies from a General Counsel provides great insights for in-house legal professionals.

Handling Deadlines Within a Flexible Legal Team

Nestlé’s legal team members are expected to hit their deadlines wherever they are based. They are not dictated by how often people are in the office, but by the demands of the business. The deadline doesn’t change just because so-and-so is working from home.

When the press reports that Nestlé leads the way in terms of work flexibility, our interview with Maurice-Jones confirms that this is certainly true in the United Kingdom and Ireland even for one of the most traditional of corporate areas, the sacrosanct legal department. Who says that lawyers resist change?

Mark Maurice-Jones joined Nestlé as General Counsel and Head of Legal Services of Nestlé UK and Ireland in May 2015. Prior to joining Nestle Mark worked for 15 years at the US FMCG multinational Kimberly-Clark where he held a number of leadership positions in the EMEA Legal Department. He originally trained and practised as a competition lawyer with international law firms in London and Brussels.

In his current role, Mark heads up the Legal Department supporting all of Nestlé’s businesses in
the UK and Ireland which have a turnover of £ 2.4 billion and employ 8000 people across 20 sites. He
is passionate about developing legal teams that pro-actively shape and challenge the wider business
agenda and drive a culture of compliance and integrity.