Managing Legal Risks Without a General Counsel

This article was first published on CFO.com.

 

In a 2016 article for the Harvard Business Review, former General Electric general counsel Ben W. Heineman, Jr. wrote, “The CFO-GC alliance has always been important because the finance function and the legal function are truly the nervous system of the corporation—sending critical signals to all parts of the company about the accuracy of the financials and compliance with law.”

 

Heineman makes a good point. But what’s a CFO to do if there is no GC to ally with?

 

It’s generally more common for smaller, growing private companies to hire a CFO before they hire a general counsel, or any in-house legal capabilities at all. They rely on outside counsel to manage legal matters, and wait until they reach a certain size and scale until they build a legal department.

 

However, just because there’s no high-level executive in place to oversee legal issues doesn’t mean the company doesn’t have legal issues that need oversight. And in the absence of a GC that oversight role often lands on the CFO’s desk.

 

In my experience working in corporate management, as a CFO and general  counsel of s start-up that grew into a fifty employee business, and now in a second stint as a private practice lawyer serving mostly private companies, I’ve had the opportunity to work with and for CFOs who are integrally involved in legal matters at their companies. Most, even though they have little to no legal training or experience, have well-honed skills and instincts that allow them to competently manage legal issues. They’re smart, meticulous, and know how to manage outside professionals. Most importantly, they have the one skill that is common to good CFOs and good lawyers—they know how to assess risk.

 

Given that many CFOs are tasked with managing legal issues, and they have little time to fulfill that responsibility given everything else on their plates, it’s important for them to sharpen their understanding of the types of issues that can have the greatest impact—good or bad—on the business.

 

Learn the legal issues that are unique to your industry

Most industries have unique state and federal legal and regulatory schemes that apply to them, and every industry has its own legal norms and practices that are reflected in, for example, commercial contract language. If you’re a CFO of an automotive supplier, or Saas company, or healthcare system—or any other type of company—it’s important to learn the nuances of how standard types of contracts in your industry work so that you can understand the contract parties’ obligations and assess risks. Because lawyers in most states have continuing legal education requirements, there are good training programs available on almost every legal issue imaginable, and they’re not just reserved for lawyers. A CFO can and should take advantage of such training to better understand the types of legal issues that commonly arise in their industry.  In addition, many law firms conduct seminars on issues relevant to business leaders, and they are generally happy to invite you, whether you are a current client or not.

 

Get familiar with the legal and governance requirements of your corporate entity type

With no GC in place, many of the legal and governance issues associated with entity management may fall to the CFO. Different entity types include C corporations, S corporations, limited liability companies, and partnerships, and each imposes different tax, legal and regulatory compliance, governance, management and board of directors obligations. In addition to various filing requirements with local, state and federal agencies, state statutes impose different obligations concerning communications with shareholders, the manner in which board meetings are conducted, and recordkeeping, among other things. This is another area in which, if it falls within a CFO’s domain, legal training is helpful. In some cases, other service providers, like accountants and payroll companies, can provide information and training for issues that many people might first turn to attorneys to provide.

 

Standardize key commercial contracts

One of the steps CFOs can take that will both add value and reduce legal risks for a company is investing in the development of its own form contracts. While there are some contracts that require a bespoke approach, many times businesses are dealing with the same types of agreements over and over. Developing a portfolio of form contracts that reflect the unique needs of a business requires an investment in outside legal counsel, but that investment is often quickly earned back because ongoing legal fees to negotiate, draft and review contracts are reduced as a result of having the forms in place. In addition, having a form contract at the ready puts a company in a more advantageous negotiating position. Whichever party goes first—in this example, the party with a form contract—anchors the starting point of negotiations with their preferred terms.

 

Identify and monitor risk landmines

Risk is inherent in running a business, but some risks are much bigger than others. A CFO who is tasked with legal oversight needs to become familiar with and monitor contingent legal risks. Many of these landmines lurk in various contracts within provisions with headings like “Limitations of Liability,” “Indemnification,” and “Representations and Warranties.” If there is no in-house counsel to lean on, a CFO should collaborate with outside counsel to prepare a checklist consisting of these types of landmines so that operational risks can be monitored and managed internally.

 

Collaborate with other leaders in the company

As the CFO role continues to expand well beyond the numbers, it’s important for CFOs to have a clear understanding of overall corporate strategy, and opportunities and challenges faced by different departments across the company. In a company with no GC, a CFO can play a key role in helping other executives spot issues, in areas such as human resources and information technology, which might have legal implications. In order to spot these issues, however, a CFO must consistently communicate and collaborate with other leaders across departments.

 

Collaborate with your peers

You aren’t alone out there, and while CFOs have to be careful not to share trade secrets or get in trouble with antitrust laws, your peers can be a great sounding board for issues you might be grappling with, and can also provide advice or direction to find answers somewhere else. Trade groups, such as CFO Leadership Council, Association for Financial Professionals, and CFO.com’s resource center can also be great resources for information, training and direction.

 

Recognize when it’s time to escalate

There are many issues that arise within a company that would be managed by a GC if there was one, but can still be effectively managed by a CFO when there isn’t one—in some cases without even consulting an outside lawyer. However, spotting those issues that require the involvement of a lawyer, both to protect the company and the CFO individually, is critically important. These areas include things like employment law issues, particularly when an employee alleges discrimination or harassment, tax and ERISA issues, to name a few.

 

A CFO cannot—and should not—try to oversee a company’s legal affairs the way an experienced GC would. However, with the right training and access to resources, a CFO can, in the absence of a GC, serve as a partial legal steward for their company. This means establishing systems, monitoring and managing risks at a high level, collaborating with leaders across the company, and knowing when to call in outside legal counsel. As Ben Heineman wrote, “the finance function and the legal function are truly the nervous system of the corporation.” If there’s no GC, a CFO can play a vital role in making sure that a company’s legal systems and processes are functioning properly.

Andy Brownstein
abrownstein@greenehurlocker.com
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