Covering all bases

Asian-Counsel: How did your career lead you to your current role with the Government of Singapore Investment Corporation Pte Ltd (GIC)?
Chua Lee Ming: I started my career with the Singapore Legal Service in 1984 and served first as magistrate, coroner, and assistant registrar, and subsequently as state counsel and deputy public prosecutor. In 1990, I joined a law firm and practised as a litigation lawyer for eight years. In 1998, I joined GIC to set up and head the legal department.

Whilst in the Legal Service, I had the benefit of learning both legal skills and ethics from the best lawyers who appeared to argue cases before me, or who were on the opposite side. My experience in the judiciary taught me the importance of stepping back and looking at issues objectively; this helps crystallize the critical issues of a problem.
Litigation practice helped hone my forensic skills and also taught me the importance of understanding human nature. I enjoyed litigation practice; there’s nothing quite like conducting a trial in court, examining and cross-examining witnesses, or arguing an appeal before the appellate court. Definitely tiring, at times intimidating, but always exciting.

It therefore took a lot of soul searching when the GIC offer came. In the end, what GIC had to offer in terms of experience and exposure was just too compelling. After all, GIC invests all over the world, in the capital markets, in real estate, in private equity, and in infrastructure. Two other reasons influenced my decision to go in-house. Firstly, I had had experience in the Legal Service and in legal practice. Going in-house would complete my experience. Secondly, I had noticed that the in-house role was evolving fast, and the challenge to be part of this evolution was an inviting one. I have had no reason whatsoever to regret or have second thoughts about going in-house at GIC. The experience has been rich beyond what I could have imagined. Testament to this is the fact that I have just completed my twelfth year in GIC!

AC: How has the in-house role evolved during your years in practice?
CLM: Without doubt in-house counsel have become an integral part of any business organisation. Globalisation and technological advances have made operations of businesses today much more complex. In addition, as everyone knows, regulatory compliance is ever increasing and remains a major concern for businesses. Corporations need legal advisers who have a good knowledge and understanding of the corporation’s structure, operations and business.

There is also increasing use of in-house counsel as a means of reducing legal costs. In a way, this has put more focus on when and how one resorts to using external counsel.

AC: What qualities do you think in-house counsel should have?
CLM: Being commercially minded is key. Being commercially minded encompasses many things. First and foremost, it is an attitude. It is about always looking for solutions to problems to enable deals to be done. Secondly, it is about understanding the business and operations so that an in-house counsel can help his business colleagues identify other issues that may arise. Thirdly, being commercially minded means identifying with the business; this requires an in-house counsel to share accountability with his business colleagues in making decisions on legal risks. Fourthly, it is about not losing sight of the big picture. For example, where a legal risk has already been factored into the price, the legal protection that one might otherwise negotiate for becomes less important. In-house counsel must also be realistic in assessing legal risks. Finally, being commercially minded requires in-house counsel to understand industry practices relevant to the business, and to keep abreast of industry developments. An in-house counsel needs to be able to advise his business colleagues early if there are legal or regulatory developments that may affect the business.

Often, an in-house counsel is also required to deal with colleagues from different sections of the organization, and who may have conflicting interests. Sometimes, he or she may also have to manage “boundary” issues or disputes. It is important therefore that in-house counsel should have good interpersonal skills, and be good negotiators and mediators.

AC: In your opinion, what are the main challenges faced by in-house counsel?
CLM: Staying relevant! In-house counsel have to stay relevant to the business. This means keeping abreast of developments in the business and being able to prepare oneself to deal with new issues that the business may face.
Another challenge is the constant pressure to evaluate the performance of an in-house legal team. Unlike external lawyers, the in-house legal team is largely a cost centre. Finding a workable and fair method to evaluate an
in-house legal team remains a big challenge. One of the rare products I have seen in this area is IKD LegalScores – an interesting proprietary performance index designed specifically for in-house legal teams by the Melbourne-based Institute of Knowledge Development.

A third challenge in-house counsel face relates to legal professional privilege. The European Court of Justice has held that as an in-house counsel is an employee, he or she cannot be considered independent and therefore internal communications with in-house counsel are not protected by legal professional privilege. The latest case on this is pending the appellate court’s decision. Although the decisions pertain to competition cases involving the European Commission, there is a danger that an in-house counsel’s independence may come under siege in other jurisdictions, including those jurisdictions that afford the protection of legal professional privilege to communications with in-house counsel.

In my view, the assertion that an in-house counsel cannot give independent advice merely because he or she is an employee is one that sadly fails to understand the role played by in-house counsel in today’s world. Where it can be shown that an in-house counsel has in fact not acted independently in any specific case, the court may hold that the in-house counsel was not acting qua legal adviser with the consequence that the relevant communications would not then be protected by legal professional privilege. Absent evidence that an in-house counsel has not acted independently, the protection of legal professional privilege should not be denied merely on the ground of the in-house counsel’s status as an employee. It is true that, in the common law system at least, legal professional privilege belongs to the client. However, legal advisers (including in-house counsel) can discharge their duties effectively only if those who depend on them for legal advice can consult with them in confidence. The ability to obtain effective legal advice, whether from external counsel or in-house counsel, makes for a better legal system. AC