I was recently reminded of this article on the role of contract managers, as well as this follow-up article prompted by the recession. Both were written by Tim Cummins of the International Association for Contract and Commercial Management (IACCM).
These articles caught my eye because my public seminars and my in-house seminars at companies are attended by both lawyers and contract managers. Given that my background is that of a lawyer in private practice, I have only indirect knowledge of the role of in-house lawyers in the contract process. And I know even less about what a contract manager does—much of what is in IACCM newsletters is outside my bailiwick.
I get the sense that when it comes to drafting and negotiating contracts, at many companies lawyers create the contract language and give contract managers little discretion to tinker with it. That’s why I encourage companies to send not only contract managers to my seminars but also at least a lawyer or two—it must be a bit frustrating for contract managers to learn of the shortcomings in mainstream contract language yet not be able to effect real change.
But many contract managers have law degrees, which muddies the distinction between the two functions.
At any rate, I know my readers come from both camps. I’d welcome any comments regarding the respective roles of lawyers and contract managers, bearing in mind that my principal interest is contract language and the process by which contracts are created.
Good question, Ken. The functional line is blurred but should be quite clear.
The simple explanation is that there are three distinct groups of “contracts folks” – some are lawyers, some aren’t, and the fact that no one has standardized the titles has really confused things, too.
First up (and usually lowest on the ladder) are Contract Administrators. These individuals are usually in charge of all of the post-contract-execution activities… making sure that people follow the letter of the agreement, hit deadlines on time, pay promptly, etc. In some organizations, these individuals get to close small deals w/o making changes to template agreements (filling out forms, for example).
Next up are the Contract Managers. In most organizations, these individuals are managing contracts, not people – performing many of the same tasks as Contract Administrators (and sometimes, this title is used interchangeably with Contract Admin, too). But for most, this is an entry-level contract reviewing/negotiating role. They’re not drafting whole agreements, but they have some latitude in decision making (ie: they can change the state for governing law… or can suggest language modifications to be approved higher on the chain).
At the top of the Contract Professionals ladder are the Contract Negotiators. These folks typically have the full faith of their respective legal departments to make any and all language modifications to their negotiated deals. They’re seasoned enough to have seen a lot of the various contractual permutations to generally know what’s what… and they’re smart enough to call for help when they know they’re in over their heads.
Lawyers can be any of the these three types – and in this economy, you see them looking further down the ladder all the time. But generally speaking, like myself, I found a great niche in using my legal education and combining it with my technical background to excel at tech-related contracts… and then expanded my skills over time.
But true Contract Professionals, especially those that happen to have a legal education, NEVER muddy the water between contracting and being a lawyer. For example, I never represent myself as counsel and will sometimes even tell the other side that I have to speak with our counsel for approval of some sort.
The problem is that many organizations don’t have (or don’t want to have) attorney contract specialists on staff… and believe that their Contract Professionals should be able to handle it all. Depending on the level of the employee, they might… but not always. Even experienced professionals need help for something eventually. :)
However, a corporate General Counsel without contracting expertise might not be qualified to review contracts, much less draft them. So the task falls to the Contract Professional. And over the years, I’ve found several non-attorney Contract Professionals to be exceedingly more qualified at drafting and negotiation than their on-staff attorneys, simply because of the nature of the expertise.
For you and your seminars, then, the best person to attend is that with the responsibility of reviewing, drafting and negotiating agreements (lawyer or non-lawyer alike). At the end of the day, it’s more than lawyers that need your help.
Ken, I found Tim Cummins’s articles very interesting. Thank you for flagging them up on your blog.
My perspectives are those of a Legal English Trainer and Lawyer :
I train legal staff both in groups and 1-1. As a preliminary comment: Jeff’s comments were very interesting. However, I haven’t trained Jeff’s distinct (from category 2) third category ‘Contract Negotiator’, as such. Sometimes people will attend from a sales team, saying that they are CMs but that they negotiate contracts.
Contract Manager delegates attending Drafting or other Legal skills courses tend to belong to one of two groups:
1. Delegates from companies with no in-house legal who have to liaise with the Sales team (or are attached in some way to that department) and have little formal legal education, if at all. Yet, although they understand the importance of well drafted Warranties, Indemnities, Liquidated Damages etc., they feel that by not being lawyers, they lack the confidence to challenge the sales people. In addition, they feel intimidated by the jargon and archaic language. They also feel disadvantaged when coming to respond to commercial emails.
2. Delegates in a company which has a legal department. They feel that the legal department acts as a brake on the deal and they don’t always understand why. They feel too insecure to question (not challenge necessarily) the legal department on certain drafting issues because they, by default, bow before the legal people. Not only because of what they perceive to be lack of technical knowledge but because of the corporate hierarchy and internal responsiblities.
Sometimes, it is frustrating when training CMs without formal (or other) legal knowledge to obtain their understanding without having to give a whole legal lecture, the whole shebang. I know that my experience is common. However, this could be due to the grey area that separates Contract Language as such as distinct from Contract Law.
Just some random thoughts.
Ken,
As you have observed, the contract manager may or may not have discretion on drafting (I have worked in companies with both extremes). But in general, the Contract Manager has a wider remit than the lawyer, because they are overseeing a bigger range of company policy and practice (as you know, many law departments do not see their remit as determining the feasibility of a commitment, only the legal implications of failure). Many contract managers therefore report in a different functional line (eg Finance, Sales, Operations) because they are considering operational and fiancial outcomes, as well as possible legal risks. Just to add to yoru dilemma, the differences between industries can be significant – and those between countries even more so. This is reflected in job titles – our recent research revealed almost 60 variants of çontract manager’job title, with limited bearing on the differences in role!