Having worked as an in-house lawyer for nearly half of his professional career, there are many things Richard O’Sullivan wished he’d known when he first moved in-house. Here are some of them
The August/September 2016 Gazette (p20) reported on a RED C poll conducted for the Law Society that noted that nearly 20% of all solicitors work in an inhouse role in Ireland. For many of us, in-house legal has become like a third branch of the profession. Some people might argue that there are now three distinct types of lawyer – solicitor, barrister, and inhouse. Those poll figures had real results. More than ever before, the Law Society is recognising and supporting the unique requirements of in-house lawyers.
In-house legal can be a very rewarding career. As a lawyer in a commercial law firm, you are likely to be a specialist, or even a micro-specialist, in one area of law. As a general practitioner, you have to spread yourself across many different areas, from probate and conveyancing to litigation. As an in-house lawyer, you become what I call a ‘specialist generalist’. While you will often have an in-depth knowledge of a small number of areas (for example intellectual property, data protection, and contracts), you will also be expected to know enough about most other areas of law to at least spot legal issues and provide some preliminary advice.
In-house lawyers are an integral and indispensable part of their companies. Mark H McCormack, renowned businessman, author and Yale-educated lawyer, uses the analogy of a car. Business executives are like the accelerator pedal. The in-house lawyer is like the brake pedal. Too much accelerator and the car lurches forward and crashes. Too much brake and it never gets going at all. It is when the two work well together that the business is able to drive forward. That teamwork is what all in-house lawyers should aim for.
Top of the pops
With that in mind, my list of things I wish I had known seemed ripe to be converted into a top-ten list. This list reflects some of the key issues that any solicitor wanting to move from private practice into an in-house role should bear in mind. Some of the items on the list are really touchstones – they are points that every in-house lawyer should think about at least once a day. Others are pointers and are the result of practical experience. Hopefully, this list will guide new and prospective in-house lawyers and provide a sanity check for those of us who have been around for a while.
Remember, you are a support service
As a private practice lawyer, you are used to being the goose who lays the golden eggs. You are a fee earner in your firm, and everything is structured to support you to earn money. When you move in-house, the dynamic changes radically. You change from being the star of the show to being a support service for the other people (sales, operations, R&D) who make the money.
A corollary to this is that, when you move in-house, you also become a cost to the business, in the same way that stationery or electricity is a cost. This change in dynamic means you must continuously ask “what am I doing to justify my cost?” It pays to never be complacent in an in-house role.
You only have one client
In private practice, you have many clients. Clients come and go. You might see one client several times a year and another client just once. When you move in-house, you have just one client, and you need to know that client intimately. You need to know your client’s business in a level of detail that would never apply in private practice. You need to know the people, the personalities, and the politics. If your client is a software company, you need to understand everything about what that software does. If your client makes widgets, you need to become an expert in widgets.
Take proper instructions
Every in-house lawyer has stories of conversations in corridors, or in the canteen, that are later quoted back as formal legal advice. Be mindful that what you might think is an informal chat can often be seen as a legal consultation by your business colleagues. It is often a good idea to summarise these informal conversations afterwards in a short email to your colleague. Tell your colleague that if she wants more formal legal advice, you can arrange that. It is also a good idea to have a legal advice policy in place, setting out who can ask you for advice (for example, managers and department heads) and what the process is. This helps the business to use you most efficiently and is a good cost-control measure.
Don’t become a crutch for the business
In many businesses, particularly regulated ones, there can be a temptation to send everything to the Legal Department for ‘legal sign-off ’. You should be clear with your colleagues as to what ‘legal sign-off ’ actually means. It is not a universal blessing that immunises their decisions from any future criticism. It is, at best, the considered opinion of you, as a lawyer, on the relevant legal issues involved. In some cases, business colleagues can become overly reliant on having legal sign-off before they make a decision. That is not good for you, for them, or for the business. Watch out for those people who use your legal advice to give them cover for their own decisions: “Well, I checked with legal and they said it was okay”. Consider putting a legal advice policy in place that sets out what legal advice is, and what it is not.
As lawyers, we often have a fascination with the minutiae of judgments and legal arguments. This fascination is usually not shared by our business colleagues. Remember, they generally want to know “can I do the thing I want to do – and, if not, why not – and what can I do to rectify that situation?” Try to answer that question simply and clearly. Use plain language – avoid Latin and legal jargon. Try to put yourself in your colleague’s position and ask: “If I had to make the decision, what advice would I want to get from my lawyer?”
A corollary to this is to try to give practical, workable solutions to your client. Avoid becoming the ‘Department of No’. If you think the business should not do what has been proposed, explain that and try to provide a positive answer as to what the business can do instead that might achieve the same goal.
Become a trusted advisor
As an in-house lawyer, you should aim to be more than the person who gives legal advice and drafts contracts. Your objective should be to become a trusted adviser to the board, the CEO, and the senior management. Aim to be the sensible sounding board for all key business decisions and the first person the CEO calls when there is a crisis. In short, you want to be the consigliere to the company. Think Robert Duvall’s character in The Godfather movies – he was the trusted in-house lawyer to the eponymous Godfather (pro tip: if you haven’t seen The Godfather movies, watch them).
Remember your independence
When you are an in-house lawyer, you are not only an adviser to your client, but also an employee of your client. However, even though you are an employee, bear in mind that you are not like everyone else in the organisation. You are a solicitor. You are a member of a separate, distinct profession with its own rules and ethics. You have a duty to be not only a loyal employee to your company, but also to be a reliably independent legal adviser to your client. This can strengthen your position in the organisation. Your independence often allows you to question decisions and to act as devil’s advocate.
Remember your integrity
As a lawyer, you are only as good as your integrity. Along with your independence, it is part of what sets you aside from everyone else. If you have thought through all the possibilities and you have to tell your client not to proceed with a particular decision, then stand by your advice. It can be very difficult to withstand the pressure from colleagues who think that the Legal Department is not being commercial, or is a blocker to the business. Resist the temptation to change your advice to keep everyone happy. Once you have lost your integrity, it is gone forever, so guard it jealously.
Remember to add value
Remember tip number 1 – you are a support and a cost. Ask yourself, on a continuous basis, “What am I doing to add value?” It is no longer enough to just give basic advice and negotiate contracts. You should try to expand your role. Become a company secretary, head of compliance or data protection officer (note: the GDPR becomes effective in May 2018). As lawyers, we are particularly suited to risk management. In-house lawyers should try to be the chief risk officer for their client where possible. It is a great way to add value, and it places you at the heart of the business.
There are some great advantages to working inhouse. There is no more ‘red clock, green clock’ time billing, invoicing, or compulsory marketing. That is not to say that in-house work is any less challenging than private practice. In many ways, it can be even more complex, with multiple business units in multiple jurisdictions. But working in-house can open up career options to move into a business management role, or even to head the business as CEO. It can be invigorating to work with non-legal colleagues who are just as eager to learn from you as you are from them. Whether you are in a start-up or an established company, working in-house can add a wonderful variety to your work life.
This is really half tip, half plea. When you first make the move in-house from the comforting and familiar environment of a law firm, it can be quite a shock to realise that you are out on your own. There are no longer any legal colleagues down the corridor. There is no one to sanity-check your ideas or give a helping hand.
As in-house lawyers, we are not in competition with each other. There is no reason why we cannot help each other or be at the other end of the phone when a colleague has a question. So remember to reach out for support and to stay in touch.
Here is the plea – be open to taking cold calls from other in-house lawyers who need advice, and be open to making those calls yourself. Consider setting up an informal network of in-house lawyers in your area. You could meet for coffee once a month and share experience, advice, and maybe the odd template document. We have everything to gain by extending a helping hand to each other.
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This article was first published in the Law Society Gazette (July 2017, at www.gazette.ie) and is reproduced with permission.