ROLE OF COUNSEL IN STRATEGIC AND BUSINESS PLANNING

October 17, 2012

I was recently asked to provide my thoughts on the role of the general counsel position, regardless of whether the position is filled by an in-house lawyer or the services are provided by a trusted business counselor who is regularly employed by an outside law firm acting as the legal advisor to the company. The answer to this question, like many others, is “it depends” and the best way to explain what thought attorneys can do for their clients is to look at how they might fit into the particular context in which their advice is being requested.

For example, let’s look at the role of counsel in strategic and business planning for the client. While the ultimate responsibility for the preparation and content of the business plan lies with senior management, in-house counsel and attorneys from outside law firms should be closely involved in the drafting process. Obviously, one of the key challenges for any company in embarking on new business activities is identifying and overcoming the legal and regulatory hurdles created by domestic and foreign governments. In many cases, a company will not be able to enter a new foreign market unless and until it is able to identify and overcome the requirements of foreign investment and/or technology transfer laws, a process that will often delay the start of a new investment project or impact the costs associated with the investment.

Counsel can also provide input on laws that may impact proposed new sales or manufacturing activities and, of course, expert counsel must be obtained when the company’s products must be vetted by governmental approval processes before they can be marketed and sold. In addition, if and when the material in the business plan is being used as part of presentations to investors and other outside parties, counsel should be involved to ensure that the information conforms to applicable regulatory requirements (e.g., securities laws) and does not unwittingly compromise the confidentiality of the company’s proprietary information. Reviewing and drafting business plans are not skills often taught in law schools so it is important for new business associates to educate themselves about planning process as quickly as possible in order to provide maximum value to clients.