May 18, 2017

A Practice Area to Which Corporate Counsel Should Pay More Attention

J. Edwin Dietel

Corporate lawyers rarely focus their practice on managing corporate records and the information, knowledge, and expertise that those records contain, but doing so can be enormously valuable to a corporate client. The question that corporate lawyers should be vitally interested in is why it matters to effectively manage corporate information, knowledge, and expertise. Lawyers who provide advice and counsel to corporate clients, even in specialty subjects such as security compliance, EEO, intellectual property, tax, or any other legal subject, should have some familiarity with the issues involved with that client’s records because they contain vital data, information, and knowledge that may be directly on point to their subject matter advice. The quality of that advice is directly dependent on the quality of the information, knowledge, and expertise in, or that should be in, the corporate records.

Managing corporate records might seem to the uninitiated to be a simple, straightforward matter, often the responsibility of file clerks who pay little or no attention to the content of those records. Managing the data, information, and knowledge in corporate records is by far a quite complicated subject that must be the responsibility of critically thinking individuals who are familiar enough with corporate operations and the applicable law to be able to evaluate the quality and appropriateness of that data, information, and knowledge.

Corporate lawyers and those in private practice should be able to quickly and accurately answer such questions as “What is a corporate record?” and “How long must a particular corporate record be maintained in corporate files?” These are just two of the most fundamental questions with which corporate lawyers serving as professional record managers must be familiar and comfortable with answering because those answers absolutely govern the fate and longevity of the data, information, and knowledge the records contain. Fundamentally, the question is whether the quality of the information, knowledge, and expertise is as high as it possibly could be in terms of its accuracy, completeness, timeliness, and at least a dozen more factors that measure its quality.

Complicating the practice of corporate records management is the fact that today’s records no longer are pieces of paper in a physical file somewhere in the corporate facilities. For several decades now, many, if not most, corporate records involve technical electronic systems for their creation, transmission, storage, and maintenance. These technical electronic systems not only speed the creation and communication of corporate data, information, and knowledge, but also often frustrate their being quickly located, identified, and used for the purposes that corporate lawyers need to make of them. For these and many other reasons, attorneys who represent corporate clients and those in private practice must have enough familiarity with corporate records-management practices to be able to retrieve the data, information, and knowledge they need to ensure that their practices are providing the best legal advice possible. Furthermore, many lawyers might not realize that practicing corporate records management and providing legal services in this field can be a lucrative practice area.

Mismanagement of data, information, and knowledge can cause enormous legal liabilities, as recent corporate disasters have shown, and the Sarbanes-Oxley Act has tried to rectify some of these situations and prevent them happening in the future. Given the myriad of laws, regulations, and other requirements, corporate compliance is a tremendous legal challenge, but corporate counsel must go beyond mere compliance to understand how they might anticipate legal problems before they occur to avoid potential liabilities. Effective management of corporate information, knowledge, and expertise by experienced counsel will go a long way toward preventing legal and other corporate disasters that have taken so many companies to their graves.

As professionals responsible for managing the content of corporate records, attorneys must achieve various levels of understanding about the content of those records in order to be extraordinarily capable in their field. Attorneys must have the ability to:

  • access the quality of the information, knowledge, and expertise in those records;
  • know how to classify, i.e., determine the type of information, knowledge, and expertise that is in the record content;
  • organize the records so that their information, knowledge, and expertise can be quickly found when needed;
  • detect problems in the content and context of the information, knowledge, and expertise;
  • develop solutions for the problems found in the information, knowledge, and expertise content or context;
  • implement solutions to the problems found in the information, knowledge, and expertise content or context;
  • assure that problems found in the information, knowledge, and expertise content or context do not reoccur; and
  • educate firm members throughout the company so that problems found in record content or context are not repeated.

(Excerpted from the Preface to Designing an Effective Corporate Information, Knowledge Management, and Records Retention Compliance Program, 2016 Edition (Thomson Reuters 2016).)

In summary, lawyers serving both inside a corporation and in private practice with corporate clients should pay significantly more attention to the quality of the corporation’s information, knowledge, and expertise and should develop a program to systematically capture as much of the tacit information, knowledge, and expertise that should be in its records, but that walks out the company’s doors in the minds of its employees every night. Simply put, this article advocates that corporate counsel adopt a more inclusive strategic mindset to their corporate practices. To do this they should operate using an innovative strategy rather than a traditional one. The business universe, including the business of law practice, consists of two distinct types of operating space and strategies: traditional and innovative, with the latter devoting significant resources to corporate law practice that, to date, has not received the attention it deserves, which is managing the quality of its information, knowledge, and expertise:

 

Traditional Strategies

Those of all the industries, businesses, and law practices in existence today—the known market space—where the industry and business boundaries are well defined, and competitive rules are well understood. Here, companies try to outperform their competitors in order to grab a greater share of the existing demand. As this space becomes more crowded, prospects for profits and growth are reduced or shrink, products turn into commodities, and increasing competition becomes brutal.

 

Innovative Strategies

Those in which the competitive space is denoted by all the industries, businesses, and law practices not in existence today—the unknown and uncontested market space untainted or unoccupied by competition. Here, demand is created or invented and captured, not fought over. There are ample opportunities and possibilities for growth that are handsomely profitable and rapid. To create this strategy, one can either create a completely new law practice or expand the boundaries of an existing law practice or a traditional strategy. Innovative strategies are not about technological innovation, given that technologies often already exist, but these creators link it to what corporate clients value.

To apply an innovative strategy: (1) never use the competition as a benchmark, but create a leap in value for both one’s practice and one’s clients; and (2) reduce the firm’s costs while also offering clients more value. Operating with an innovative strategy focusing on corporate information, knowledge, and expertise is an underserved and mostly ignored area in which lawyers can build a profitable practice with plenty of room to grow and, most critically, serve as an important leader to corporate clients.

The bottom line for attorneys responsible for managing the content of corporate records is that they must have a comprehensive understanding and appreciation for: (1) all the business operations and functions of the company; and (2) all the applicable and relevant laws and regulations that apply to his or her company. That is why those serving as counsel to corporate clients are uniquely qualified to take on this responsibility of managing corporate information, knowledge, and expertise and why attention to this subject must be included in those lawyers’ responsibilities.

J. Edwin Dietel began his practice of law in 1973 in the Office of General Counsel at the Central Intelligence Agency and retired as the Deputy General Counsel in 1995. He since has served as a senior member of several businesses and writes extensively about business subjects of corporate leadership, information, knowledge, and record management.