THE INSIDE JOB
WORKING AS AN IN-HOUSE LAWYER
Published by NuBooks, an imprint of Oak Tree Press, 19 Rutland Street, Cork, Ireland
www.oaktreepress.com
© 2013 Patrick Ambrose
A catalogue record of this book is available from the British Library.
ISBN 978 1 84621 164 5 (PDF)
ISBN 978 1 84621 165 2 (ePub)
ISBN 978 1 84621 166 9 (Kindle)
All rights reserved. No part of this publication may be reproduced or transmitted in any form or by any means, including photocopying and recording, without written permission of the publisher. Such written permission must also be obtained before any part of this publication is stored in a retrieval system of any nature. Requests for permission should be directed to Oak Tree Press, 19 Rutland Street, Cork, Ireland or info@oaktreepress.com.
To Caitriona
Tu mihi sola places
CONTENTS
Introduction
PART 1: From the outside looking in
1: The Grimm reality of the fairy-tale job
2: Making in-house your home
3: Do you have what it takes to pull off the inside job?
PART 2: The view from inside
4: The 7 habits of highly-effective in-house lawyers
5: Crowning the in-house customer
6: Caveat auditor: Phrases in-house lawyers should be wary of
PART 3: Privilege and ethics
7: A life of privilege
8: Under oath: Towards an ethical oath for in-house lawyers
9: The perils of wearing too many hats
PART 4: Legal risk and compliance
10: A risky business
11: The Janus effect: The relationship between legal and compliance in the modern organisation
12: Game-changer: The strategic importance of in-house lawyers
PART 5: Soft skills are hard to beat
13: A word to the wise
14: Under the influence
15: Writing to be read
About the Author
INTRODUCTION
I undertook this book first and foremost to improve my own understanding of the role: what it really meant to be an in-house lawyer, what were the unique aspects of the role that differentiated it from private practice, and what challenges in-house lawyers faced that would not be transparent to colleagues in other parts in the organisation or in law firms. The intention of this book, therefore, is to share thoughts, create awareness about the role and generally to promote the function of in-house lawyer.
In this book the term ‘in-house lawyer’ is used in the broadest sense to include also corporate counsel and lawyers employed in government, public sector, charities and other non-corporate entities. For the same reason reference is made throughout to ‘organisation, ‘entity’ or ‘employer’ rather than ‘company’, while the term ‘business’ is used in the broadest sense to refer the activities of the organisation in pursuit of its objectives.
This book is aimed at corporate counsel and in-house lawyers in public sector by whatever title, not only General Counsel and experienced in-house lawyers but also those new to an in-house role. It will be of interest also to those in private practice who wish to learn more about the challenges their clients face and, in particular, those considering a move in-house. And some of the chapters in this ebook will be of interest to legal executives, company secretaries and those in associated functions, such as compliance.
Many of the concepts referred to in this book have been applied for many years by my contemporaries and, indeed, those who have preceded us, but where possible I have sought to adapt, modify and extend those concepts specifically to the role of the modern in-house lawyer. In expressing these views, however, I humbly acknowledge that I am standing on the shoulders of giants.
The metaphors, similes and allegories used in this book serve a dual purpose. First, they assist in presenting serious subject matter in an intentionally light and engaging way and, second, they act as a form of mnemonic to translate information into a form that the human brain can retain better than mere instruction.
This book is structured in five separate parts so that chapters on a similar theme are grouped together; however, the chapters do not need to be read in order. Similarly, the chapters are not intended to be read at one sitting and, despite their light tone, the concepts behind them merit pause for further contemplation by the reader.
Some of the chapters in this ebook have been published as articles in professional journals and others are scheduled for publication. Those that have not been published were written as their own reward.
Patrick Ambrose
Dublin
May 2013
PART 1:
FROM THE OUTSIDE LOOKING IN
1: THE GRIMM REALITY OF THE FAIRY-TALE JOB
For most Western readers, Jacob and Wilhelm Grimm are considered the founders of the modern fairy tale. Their first edition of Kinder und Hausmärchen (Children’s and Household Tales) was published in 1812 as a collection of enchanting tales, some of which had very brutal storylines. However, by the seventh and final edition in 1857, the stories had been toned down to suit a respectable middle-class audience, and today the Disney versions of these tales that are universally familiar have been bleached of the impassive horror of the originals.
Many lawyers hold the view that an in-house role is a fairy-tale job of 9 to 5, stability, and work-life balance. The reality can be very different and, like any role, there are drawbacks that may make it an unsuitable career path for some. This chapter dispels some of the myths about going in-house and highlights points to consider before deciding whether it is the right career move for you.
Poisoned apples and oranges
In the tale of Snow White that we are all familiar with, a wicked stepmother orders a huntsman to kill Snow White and bring her heart back as proof, but the huntsman cannot bring himself to do the evil deed and returns with the heart of a boar. However, in the original Brothers Grimm version, the huntsman is sent by Snow White’s jealous mother (not her stepmother) to bring back her lungs and liver, which she plans to cook and eat. The original tale also includes her mother’s punishment: she is forced to dance at Snow White’s wedding in red-hot iron shoes until she drops dead.
Every career choice involves trade-offs; this is true whether you move in-house or stay in private practice. Certainly, there can be gruelling demands on practitioners in private practice, with long working hours, time recording, and a pressure to generate business that is only likely to increase the longer you stay at a firm. However, law firms are increasingly open to flexi-time, reduced hours, or telecommuting for valued lawyers and, just as being in private practice does not necessarily mean an unreasonable grind, an in-house position does not necessarily mean a life free from pressure. Today, lawyers with sophisticated practices work hard whether in private practice or in-house, and, increasingly, many in-house departments are run like law firms where different departments within the organisation are considered clients and in-house lawyers must record how they spend their time. And, with budgets being squeezed, more pressure is being put on in-house lawyers to keep work in-house rather than to seek external legal advice.
One of the biggest challenges for the novice in-house lawyer is learning to tailor advice to fit the business, as this will go against many years of training at your law firm to advise clients cautiously. Unless you move to an organisation with a large legal department, you may need to become a generalist, as opposed to the specialist you may have been at the law firm, and, as a result, moving back to a law firm can be difficult. In addition, unlike law firms where the lawyers are the producers, in-house lawyers are a cost to the business and it can be a difficult task to explain your value, particularly where protecting the organisation’s best interests may mean telling business people that they cannot do what they want to do.
Does the shoe fit?
The beautiful Cinderella is swept off her feet by a handsome prince, despite the efforts of her wicked stepmother and ugly stepsisters. In the more sinister version by the Brothers Grimm, the stepsisters are told by their mother to cut off their toes and the heels of their feet until the slipper fits, but the plan is discovered when blood pours from the shoe.
Not all in-house jobs are the same. You may be working in a large legal department with a wide range of lawyers or you may be in a small organisation as the sole point of contact for all legal queries, but it is largely a matter of personality and working style as to which suits you. There is likely to be more mentoring in a large legal department but, on the other hand, you may not have as much responsibility as you would like or can handle. Conversely, in a smaller legal department, a junior lawyer may be given substantially more responsibility and may interact more regularly with senior executives, but may not have to deal with legal issues that are very complex or interesting.
Whatever the in-house role you take, leaving a firm to go in-house means accepting a significant change in work environment. At a firm, you may be used to spending time with other lawyers, and you may have become accustomed to delegating tasks to support staff, but in an in-house environment it can be a shock to find you now have do many of the tasks you once delegated. In smaller organisations, you may no longer have access to the same array of legal research materials as you did in the law firm, so the size of the in-house legal department may dictate how much experience you should already have.
Fool’s gold
In the modern tale, Rumpelstiltskin spins straw into gold for a young girl who faces death and, in return, he asks for her first-born child. She agrees, but when the day comes to hand over the child she cannot do it. Rumpelstiltskin tells her that he will call off the bargain if she can guess his name, and when she does so, having overheard him singing his name by a fire, Rumpelstiltskin goes into a rage, driving his right foot so far into the ground that he sinks up to his waist and then he disappears forever. In the 1857 Brothers Grimm version, however, his rage concludes with him seizing his left foot with both hands and tearing himself in two.
Law firms have defined stages of career advancement that can be attained by performance, but many in-house law departments have a flat reporting structure with the entire legal staff reporting to the Head of Legal or General Counsel. Although there may be opportunities for promotions in large law departments, generally speaking opportunities for advancement are limited and may involve a lateral move into a non-legal position, or moving to a new organisation. Even if you do not plan to move, in-house legal departments can be downsized and companies can go out of business, and in searching for your next in-house legal job a private practitioner competing for the same role is arguably more employable than in-house colleagues.
Keeping legal skills from deteriorating is also a significant challenge. For some organisations, a large portion of the responsibility of an in-house lawyer is to manage the outsourcing of challenging work to law firms, and you may be involved in little, if any, sophisticated legal work. For some, this is the ideal job, but others may feel frustrated at not using skills they have worked hard to obtain in the law firm.
The timing of a move in-house depends largely on your career objectives also. If your desire to go in-house is driven by an interest in switching to the business side of an organisation, it may be best to make the move as a relatively junior lawyer, as once you have been practicing for a while it will be more difficult for business people to see you as anything other than a lawyer. If your objective is to become an in-house senior lawyer or General Counsel, then staying at a law firm until you are at least a senior associate will maximise your opportunities.
Paying the piper
In the tale of the Pied Piper, first published in the Brothers Grimm Deutsche Sagen in 1816, a piper offers to rid the town of Hamelin of rats. The villagers agree to pay a vast sum of money if the piper can do it, but when he does so they refuse to pay. In most modern variants, the piper plays a tune that draws the children to a cave out of the town, but he sends them back when the villagers pay up. In the darker original, the piper leads the children to a river where all but one lame boy who could not keep up are drowned.
Remuneration at a large law firm generally aligns with the stage of your career, with bonuses paid depending on performance. The average salary for a private practitioner still far exceeds those of their in-house colleagues and, at some of the biggest firms, partner-level remuneration can be immense. While not all law firms are the same, generally speaking the longer you stay at a law firm, the more likely it is that you will become financially independent.
Goldilocks and the Three BearsThe Little Mermaid
Fairytales of old sought to introduce people to the dark side of life, while keeping the horror at a safe distance. Over time, the more chilling aspects of these tales have been discarded and, in the same way, the tales private practitioners have heard about life in-house may not reflect the potential downside. The reality is that going in-house is one of the most significant career decisions a lawyer will ever make: for some, it may be a job they do happily ever after, but others may regret ever fleeing the highest room in the tallest tower of the law firm. But, by doing your research and finding a role that is the right fit, you may be one of the lucky ones who find that the fairytale can come true.