This is probably the most important. Even if you join the large in-house legal department of a mega-corporation like Exxon, there will be an enemy. While the enemy might be individual, it might also be a group. You are in competition with anyone who enters at the same time you do. Contracting departments often are at war with the legal department and if they are successful in getting you fired, it’s one for their team.
Failure to identify your enemy means your tenure will be short. Legal ethics will only help as a sword, not as a shield. Someone may invite you to get involved in a matter or try to assign a case to you that is a battlefield where many have fallen. If others have failed, it’s for a reason. “I can’t get involved in that matter because of conflicts.” Sun-Tzu is your friend.
Many matters that cross your desk will appear to be routine. Review of a contract; a non-disclosure agreement, updating corporate forms in view of new legislation or a court decision. Beware of those matters that while appearing routine contain only partial facts and only part of the story.
In a dispute between members of a joint venture, as the calendar year rolled around approving the company’s financials and renewing registrations is considered routine.
Your counterparty asks if these routine matters can be resolved, notwithstanding the parties’ disputes. You agree because of statutory requirements only to find that a not-so-bright light on your team has refused to cooperate on routine matters in a misguided effort to obtain an advantage over the substantive dispute.
“Oh no,” the genius said, “we can’t agree to paying the annual registration fee.”
“If you don’t the company will be delisted,” you respond.
“Then that will be their fault,” he claims, “because blah blah blah.”
Consider every matter a minefield, no matter how minor. Even when you know the backstory.
An in-house legal department may be a new animal for many within the organization. Before your arrival if they only dealt with outside counsel who weren’t part of the organization and subject to the company’s chain of command. They dealt with lawyers like they might deal with any other supplier or customer. Initially, they will not know how to deal with you. Attorney-client confidentiality is one area of confusion, because your client is the organization. No non-lawyer will understand this.
Win allies by going the extra mile and helping your colleagues outside the legal department meet their deadlines, even if it means goodbye to that 9 to 5 that you dreamt of before going in-house.
Every time anyone in the organization praises you, make a note if the praise is oral and a copy if written. These encomia should go into an “attaboy file.” You will need this information when it comes time for salary review or when someone in the organization, unhappy with your legal advice and tired of filing reclama after reclama, tries to get you thrown out the door. See “Identify your Enemy” above.
The bane of lawyers is the requirement to keep detailed time records so that bills can be prepared for clients. One of the advantages of in-house practice, supposedly, is that there is no need to keep such records. Don’t believe it. You still need to keep them for a host of reasons, but here are four:
—identifying people present at a meeting if this becomes an issue (it will)
—justifying your salary (and value to the organization)
—aide-memoire for those off the cuff oral legal opinions
—keeping a follow-up to your to-do list
—proving corporate legal expenditures in court for fee reimbursement
Plaintiff lawyers, or any lawyer taking a fee on a contingency fee basis often believe that there is no need to keep time records. This belief evaporates the moment they are ordered to prepare a bill of costs in a matter where the client is entitled to attorneys fees.
Reconstructing time spent is a task for novelists because it is properly called narrative fiction.
Contemporaneous records are admissible in court. Reconstructions might be admissible, but then again, there is a high risk that they will be cut by the presiding judge if disputed. And they will be disputed.
Unless your superiors are old court hands, they will not understand that there are certain activities that are a necessary part of lawyering. One example is talking to opposing counsel.
Your superiors may foolishly believe that this is some kind of betrayal and that no quarter should ever be given. The opponent should be met on the battlefield only. This attitude is stupid.
Even the most contentious cases require cooperation from opposing counsel and without communication there is no cooperation.
A factory of a certain size may have an in-house medical facility; a clinic or even a physician on call. No corporate officer would question an in-house physician as to why he prescribed Tylenol instead of aspirin to an employee who reported a headache but the same officer will feel privileged to question why you served standard form interrogatories or Requests to Admit to an opposing lawyer.
A little knowledge is a dangerous thing; explain generally that conduct in litigated civil disputes is governed by the Rules of Civil Procedure. Offer to send a copy to the offending corporate officer. He will say yes, not read what you send him and in the future hopefully will keep his nose out of court business.
Even though you are working in-house for a company and not a law firm, in reality you are still working for a law firm. That firm reports to the chairman or CEO of the company. You want him to think of your department as “his” law firm; you want the law department to be his first and most trustworthy stop for legal advice.
This means you must operate the law department as if it were a law firm. This will be difficult, because unlike other corporate divisions the law department will be seen as a cost, and not a profit center.
Don’t let anyone think of the law department in that way. Keep close track of the savings you bring to the firm, whether compared to the costs of outside counsel or simply as to areas where your law department has saved the company money.
Different divisions within the company will fight for resources, profits and the attention of the chairman. Promotions will be granted on merit, but they will too often be awarded to the less-worthy who has made it seem like a different division was less successful.
Invariably, the different sectors will come to you and ask you to take a side, suggesting, without actually denouncing, that programs or processes engaged in by a different division are not in the best interest of the company. They will ask you to back them up.
Don’t be tempted. You never get the whole story in this fashion and there is always more to the story. Try to remain neutral for as long as possible, unless an until the chairman raises the matter with you. If he doesn’t, it’s best not to get involved.
Of course, if someone comes to you with a story of fraud or other wrongdoing, you must report this to the chairman. Never forget who is your client.
While in the rush to complete a transaction there will still be many days where your work long hours, for the most part the ten or twelve—or more—hour days common to associates at Big Law firms will be a thing of the past.
This is nothing less than a gift of time.
Don’t waste it.
You are in a position to help bring in the best lawyers for the company. But be careful: doing so means stepping on toes.
Long-term relationships with ensconced firms are disturbed at your peril. Lawyers at these firms can and will go over your head to claim that bringing in a new firm is a sign of immaturity (even if you’re over 50), ignorance (even if you know the case backwards and forwards) or incautious (even if the proposed selection was made after a rigorous tender process).
You can’t ignore these whispers because you will not always be there to hear them. Bring others in the firm—not just the law department—in on the decision. They will be your internal advocates, for they know the details better than you do. Tell the firm you’d like to make the award to where the opposition lies: they may have some useful comments.
In the end, don’t make it your decision. It’s the chairman’s decision, and if he decides to overrule your team and go with his golfing buddy, so be it.
Don’t complain or sulk, even if you feel a great error is being made.
Unless you have an MBA or ran a business prior to becoming a lawyer (managing a law firm doesn’t count) don’t try to offer strategic suggestions for the future of the business.
You are not a businessman.
Look what happened to Citibank’s Charles Price. If you want to move into management, get an MBA.