Talks with TLS: A Man of Two Worlds – Private Practice and In-House

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Iustina Alban from our Dubai office recently spoke with Scott Lochhead from Freshfields Bruckhaus Deringer. Over a virtual coffee, they discussed the differences between in-house and private practice law, working in a COVID-19 world and practicing in both the UAE and Japan.

Iustina: Tell us about yourself and the milestones in your career.

Scott: Originally, a farm kid from Mid-Canterbury, New Zealand.

I completed law and commerce degrees at the University of Otago and door-knocked during the 2008 global financial crisis to land my first job with Cavell Leitch in Christchurch.

A couple of years later, I moved to MinterEllison in Auckland, where I got my first taste of construction law. I spent many years working alongside a great team of lawyers on defective building claims, the post-earthquake re-build of Christchurch city and several major energy projects.

In 2014, I moved to Freshfields in Dubai, where I joined the Major Projects Practice and International Arbitration Group. I became responsible for leading the noncontentious construction practice in the region, supplemented with project advisory mandates, primarily focusing on the energy, infrastructure and transport sectors.

I was fortunate to spend six months in 2017 seconded to a large South Korean construction client, assisting their in-house legal team with EPC contract negotiations for new international projects and providing construction disputes advice.

I also contribute globally on construction-related mandates, including in 2018, when I spent time in London as part of a cross-office Freshfields team advising the special managers to the official receiver regarding the numerous construction projects undertaken at the time.

Here I am now, September 2020, in Tokyo, having spent the last fourteen months seconded to a major Japanese trading house client, providing advice on a variety of major projects.

Iustina: Five years ago, I used to think I knew everything about lawyers just from watching Suits. Fast-forward to 2020: what’s the real life of a disputes lawyer like?

Scott: Ah yes, Suits. I suspect that Suits is to lawyers what Grey’s Anatomy is to doctors.

I can’t profess to explain ‘real life’ for every disputes lawyer, especially given the healthy mix of transactional and disputes work that I maintain. But, let’s take 2020 as a snapshot, where a key theme has been remote working, which has undoubtedly affected disputes lawyers. As lockdowns and restrictions on travel and in-person meetings continue, remote working practices have necessarily extended into arbitration procedure.

Many hearings are now virtual, meaning that parties, tribunals, experts, witnesses and lawyers must all adapt to the evolving needs of their situations. Thankfully, arbitration is already an inherently flexible system of dispute resolution, and technology has advanced sufficiently enough that these virtual hearings can proceed without too much hassle. However, disputes lawyers must now be privy to some new issues arising from virtual hearings, such as ensuring a witness appearing remotely is free from interference, or the potential for interference, with their evidence.

Back to those five years you mention…there have also been some very encouraging developments in the commitments law firms have made to responsible business practices: becoming a more diverse and inclusive workplace, reducing environmental impact, investing in communities through pro bono work and growing efforts to improve sustainability.

Iustina: Let’s look more closely at the two roles you’re in: private practice and in-house. What are three striking differentiators between them?

Scott: It’s worth providing context on my experiences, as they may differ from other lawyers with permanent in-house roles, or those in law firms with a more domestic focus.

My ‘in-house world’ perspective has always been as a secondee from a law firm. I’ve been fortunate to have had three in-house experiences over the last decade. First, with a New Zealand electricity generator and retailer, then with a South Korean construction company and now in Japan with a trading house, or ‘sōgō shōsha’.

I’ve now spent more than half of my career at Freshfields in the private practice world, so my experience has an international leaning which also likely colours my perception of the differences between these ‘two worlds’:

1. Improved visibility of commercial drivers and access to information flows that you have in the ‘in-house world’. Unsurprisingly, with daily direct access to your clients, you more naturally understand the extent to which legal advice is required, its likely end use and the strategic direction of the company. There is an edge in terms of understanding the client, what it needs, how it needs it and for what purpose. In the ‘private practice world’ much of this important information must be gleaned from concerted business development efforts to create relationships with the client.

2. The subtle shift in mindset from being a fee-earner in private practice to playing a support role for the core business in-house. The absence of billable hour targets in the ‘in-house world’ is refreshing. However, a challenge is to overcome perceptions that the corporate legal function can be a roadblock to getting business done, and to instead be viewed as an essential partner that strengthens and mitigates risk in the company’s offerings.

3. The scope of potential legal issues you encounter in a day. In private practice, lawyers tend to have more narrow areas of expertise and specialise in them. However, in-house business needs often necessitate lawyers that can accommodate broader issues. This is something I have observed most intensely in a trading house environment where the number of industries and jurisdictions we operate in is vast.

Iustina: What’s the biggest lesson you’ve learned that will make you even better at your job in private practice?

Scott: Understand your audience(s).Unless you take time to properly engage with and understand in-house lawyers (and the key individuals in teams that in-house lawyers support), your private practice role as an external advisor can be challenging.

Of course, it’s not always possible, and there isn’t always time to develop numerous significant relationships within a business, but I think it’s essential to have a handful of allies that enjoy broad support within the company and can help guide you when delivering advice to ensure that it is targeted, relevant and meaningful.

Iustina: 2020 brought the world to a new high in terms of digital information. How has your role transformed in conjunction with this?

Scott: I mentioned this before, but the most transformational aspect was the overnight switch to widespread remote working.

Fortunately, years of working at Freshfields prepared me for this. Client requirements often dictated travel (remember those days?!), so working from hotel rooms, client construction sites or at 38,000 feet was not unfamiliar. The transition to full-time remote work this year was not conceptually difficult for me.

Similarly, my in-house colleagues had already adopted ‘Microsoft Teams’ and a range of other digital and cloud-based systems before COVID-19, so they were well versed in using that technology, which made for a smooth transition. Perhaps initially, it was slightly unusual for some to adjust to virtual meetings, with the traditional preference being face-to-face meetings, but people quickly adapted.

My role remains much the same but with less reliance on hard copy documents, face-to-face meetings and, sadly, fewer business lunches!

Iustina: Do you have any ‘technology rules of the road’ you apply in your work?

Scott: I don’t consciously apply any specific tech rules.

I think most lawyers are always balancing the need for efficiency in their work whilst ensuring the right level of detail and clarity of advice is delivered.

My impression (perhaps a gross generalisation) is that lawyers naturally lean toward use of email, perhaps when a quick phone or video call would do the trick. My approach has always been that the chosen tech needs to be fit for purpose.

For example, with my clients having English as a second language, I use email for conveying detailed legal analysis or ensuring that material business risks are communicated. But for an initial scoping discussion, or for providing actionable solutions or recommendations, I usually opt for a video or phone call to run through the issues.

Iustina: What’s your favourite thing about Japan, and what do you miss from Dubai?

Scott: Japan has an immensely impressive and efficient rail network – perhaps best demonstrated by the Shinkansen (aka bullet train). This highly functioning network makes exploring in your downtime a breeze, even if a little expensive when venturing farther afield.

Dubai will always hold a special place for me. I miss the desert sunsets, driving in the dunes and our outdoor swimming pool under the palm trees.

Iustina: Lastly, when you don’t practice law, what activities keep you entertained?

Scott: It would be fair to say that activities have been somewhat curtailed lately!

It’s hard to beat a cracking day at the beach. This summer we stayed near Shirahama Beach on the Izu Peninsula for a few days. Scuba diving is a big hobby of mine – something I’m still waiting to do in Japan. I have some small islands near Okinawa in my sights. My wife and I have also been fortunate to build a great network of friends in Tokyo, so our focus of late has been (socially distant) socialising.

Japan has also recently relaxed its visa re-entry restrictions, so we might venture out soon. Let’s see.

The views, thoughts and opinions expressed by Scott in this edition of ‘Talks with TLS’ belong solely to him and do not necessarily represent the views of his employer or any other corporation or individual.

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