The Grass Is Always Greener: Life As In-House Counsel

As a private practitioner, sitting at a paper-smothered desk getting rapid-fire e-mails and phone calls from multiple clients, each of whom needs something yesterday, filling out time sheets and reviewing mountains of billing, it is easy for those in private practice to envision life as an in-house attorney as the better ' or at least less stressful ' choice of career paths. This article reacts to that vision, highlights some of the different issues facing those in-house, and discusses the manner in which some of the same issues faced by all attorneys translate in an in-house environment.

Dangerous to Generalize

It is, of course, as inappropriate to generalize about “in-house practice” as it is about private practice. Just as with law firms, there are in-house legal departments ranging from one to hundreds of lawyers, with greatly varying levels of staffing, practice areas, responsibility and reporting. Many in-house attorneys are required to bill their time just like those in law firms in order for expenses associated with their employment to be allocated to the appropriate company division, transaction or other cost center ' while others do not have that burden or may only for isolated transactions.

There is a myth that when you work in-house, managing your workload is much simpler since you have only one “client.” It may perhaps be true that one entity pays you and ultimately benefits in some form from your services, but in most in-house positions, you have scores of different developers, leasing agents, accountants, managers and others competing for your time and attention. Even if we assume you can theoretically ask your fellow company employees to help prioritize your in-house work, such requests are not generally well received; just as with clients, each person coming to you for legal support has his own deadlines and pressures and does not want to jeopardize his performance for your convenience or to accommodate the needs of another co-worker. Just as with private clients, there are serious risks to offending a business person with your prioritization, perhaps more serious than in private practice: if a lawyer in private practice does not please a particular client with his work or timeliness, he may stand to lose that client or not have the opportunity to service that client in the future; if an in-house lawyer upsets the wrong co-worker in that same manner, he may be looking for a whole new job.

Goals and Objectives

While every counsel likes to see his or her clients accomplish their business goals, the pursuit of those goals is generally more fully shared by one working in-house. The continuation of a paycheck, and perhaps its size, may be directly tied to the continued viability and profitability of the company. In-house, you live and breathe the company, and the perception that you do so is an important part of your success as counsel. Most companies will pay substantial dollars for legal advice from a big, well-known law firm for issues which they feel warrant that treatment, but from its in-house counsel, regardless of the discipline or the complicated nature of the issues, they want practical advice and expect counsel to find a way to get done whatever the business side has determined needs doing. Even when legitimate legal issues with the proposed action or transaction exist, in-house counsel is wise to introduce them in a way that still creates confidence that he or she shares the company goals and is doing his or her part to accomplish them. Exactly how that is done depends on the personalities involved and the nature of the issues, of course, but keeping an “eye on the prize” is important.

Attorneys in private practice are often frustrated by working only on discreet parts of a deal and not getting to ride with it start to finish ' and perhaps not even know if it makes it to fruition. Generally, the in-house lot is better on this score, but not without exception and not without paying a price. Many big in-house legal departments get the same piecemeal involvement in company transactions, although their access to information about the transaction's progress and completion may be a little better. In-house, the client, after all, is right next door and pays your salary. It is also unfortunate, but seems often true, that the lawyer on the “team” is held to a higher standard than most of the other players, many of whom do not miss a lunch, never mind a vacation, to do their part.

If all goes well and counsel is even invited to the ribbon cutting (or closing dinner, corner bar toasts or similar celebration), the in-house counsel can unfortunately expect to have everyone thanked but him or her and the counterpart on the accounting side. If things go bust, however, counsel will get his or her share of the blame and perhaps the taint that develops in years ahead over deals gone bad. There are exceptions, of course; business people who truly appreciate the work done by the whole team and the pivotal role good legal counsel often plays. Expecting little going in will at least minimize your disappointment. Bottom line: If you are in need of regular ego gratification, an in-house position is not likely in your best interests.

Conflicts of Interest

Much is written about the guidelines and steps a private practitioner should follow to avoid conflicts of interest, but very little that addresses those issues for in-house counsel, where they take on a somewhat different spin. Affiliates of the company may have varying ownership structures, some of which may include third-party interests, yet transactions may be bundled together in a way that helps the weak and disadvantages the strong. Different divisions may be striving to accomplish things that cannot all be accomplished and something will have to be conceded along the way. A business person may be prioritizing based on his or her vacation schedule or incentive bonus, and may be directing an attorney's workload in a manner inconsistent with what the attorney otherwise believes to be in the best interests of the company. A department of the company wants to structure a deal in a manner that pumps certain published reports, giving a skewed, “good news only” perspective to the disadvantage of another division of the company. Do these represent conflicts of interest for the in-house attorney?

There are hundreds of other examples where what is good for the goose is not for the gander, yet in-house counsel works for the company that owns, employs or contracts with both of them. Viewing the company as “the client” does not resolve the internal conflict, and venturing into the minefield of company politics by trying ' no matter how diplomatically ' to bring disparate forces together is not only regularly unsuccessful, but is likely to alienate certain individuals who will work with that attorney differently, if at all, in the future. In a law firm setting, conflicts of interest are usually managed professionally and the issue is respected; in a corporate setting, they are generally viewed as legal mumbo-jumbo and indicative that the attorney is not a real team player, or is trying to avoid work to manage his or her own workload. Attempts to protect oneself with “CYA” memos will likely have the same effect.

Role Playing

In an in-house setting, it is far more likely that counsel will from time to time play a business role in certain transactions, while at the same time serving the legal function. The lines between business and legal blur substantially, particularly in areas that are inherently business-oriented (such as development and leasing). Until there is a problem, the crossover is generally viewed as efficient and effective since the company engages in many similar transactions and every employee is pressed for time and support. If it is hard to identify the client when there are multiple business people with occasionally conflicting interests, how is the client identified when the lawyer is directing some of the business decisions? Assuming that is not a concern going into the deal, how will it appear upon reflection on a deal gone sour? Clients of a private practitioner spending big money on legal fees appear willing to tolerate not only engagement memos and conflict letters, but those “CYA” memos or letters, whether as qualifiers to opinions or concluding paragraphs in correspondence.

None of this is meant to imply that any lawyer should ' or would ' commit any unethical conduct or compromise personal integrity. It is more difficult to categorize these things, however, when the person who may be pushing you to handle a negotiation in a way you find distasteful is the one who decides your year-end bonus or next year's raise. The best preventative medicine for that foul tasting stuff is first to research the company and the role of counsel before accepting an in-house position. Once there, it is helpful to develop meaningful, friendly relationships with the people with whom you work. You will not lose any prestige or lessen their confidence in your legal ability by making the effort, when the time is right, to talk sports, kids, travel or whatever interests you and them. Having a more personal relationship enables you to have off the record conversations about conflicts and concerns more easily without waiving flags or causing undo alarm. You will gain more credibility than you realize by letting your co-workers know, in a natural and easy way, that you not only have a great brain on those shoulders, but an evil sense of humor or a soft spot for the home team. You will also be less threatening to the business side if they know you a little better, foibles and all. Private practitioners have pressures to market their services to potential clients; most in-house counsel should impose pressure on themselves to continually market themselves and their services throughout the company.

In-house, it is also important to be selective with your issues. No matter who you are or what you do, most people will have some stereotypical expectations of the lawyer, many of which may not only be valid, but traits of which you should be proud. In a law firm, a certain level of professionalism is expected and usually delivered by the lawyers and the staff. In a corporate environment, however, you may find yourself surrounded by a somewhat different standard, and few will be receptive to your commentary on that. Picking the right time and the right issues is a creative, somewhat hit-and-miss process. Decide what is most important and preserve whatever political capital you may have for those issues. Save your most stern tone for those times, if they come, when you have to take a strong stand to protect your ethical standards or keep the company from making a shortsighted legal error.

Expertise and Contacts

We are all guilty of asking our friend the doctor about something ailing us even if we know it is well beyond his area of expertise. A company co-worker, given the choices of proceeding without legal advice, paying the costs of outside counsel, or asking for your help, will often try you first. If the matter is beyond the expertise the company hired you for, the win-win is not to turn your co-worker away empty handed (thus violating that “team” concept), but to offer to help identify the issues with him or her and then find him the legal expertise he or she needs elsewhere in the department or the community. Being equipped with a good network of people to call is a valuable contribution and one that will be appreciated, even if grudgingly.

Similarly, your value to the company increases substantially if you know as many of the lawyers working at other companies as possible ' both those engaged in your same slice of the business and those often on the other side. The benefits of having a broad network of contacts are many: you may be more efficient at your job by being able to cut through the posturing that often accompanies new relationships; the company is more likely to support your participation in industry conferences where you can make and reinforce those connections; and you are more likely to be included in face-to-face meetings with third parties when their counsel is asking for you by name. Valuable professional connections can provide precious political capital for the in-house counsel.

Greener Grass

Finding the right legal environment to suit your personality, skills, economic needs, lifestyle and interests is a very personal matter and in-house functions are as varied as the lawyers who fill them. What is right for you at the beginning of your career may be very different from what works later on, once you have not only honed your expertise, but also developed your tastes, people skills and work style. Before making any change or any assumptions about another type of practice, ask a lot of questions of others and of yourself. The grass is not generally greener over there, but whether you wiggle your toes in Bermuda or Zoysia is your choice to make.

As a private practitioner, sitting at a paper-smothered desk getting rapid-fire e-mails and phone calls from multiple clients, each of whom needs something yesterday, filling out time sheets and reviewing mountains of billing, it is easy for those in private practice to envision life as an in-house attorney as the better ' or at least less stressful ' choice of career paths. This article reacts to that vision, highlights some of the different issues facing those in-house, and discusses the manner in which some of the same issues faced by all attorneys translate in an in-house environment.

Dangerous to Generalize

It is, of course, as inappropriate to generalize about “in-house practice” as it is about private practice. Just as with law firms, there are in-house legal departments ranging from one to hundreds of lawyers, with greatly varying levels of staffing, practice areas, responsibility and reporting. Many in-house attorneys are required to bill their time just like those in law firms in order for expenses associated with their employment to be allocated to the appropriate company division, transaction or other cost center ' while others do not have that burden or may only for isolated transactions.

There is a myth that when you work in-house, managing your workload is much simpler since you have only one “client.” It may perhaps be true that one entity pays you and ultimately benefits in some form from your services, but in most in-house positions, you have scores of different developers, leasing agents, accountants, managers and others competing for your time and attention. Even if we assume you can theoretically ask your fellow company employees to help prioritize your in-house work, such requests are not generally well received; just as with clients, each person coming to you for legal support has his own deadlines and pressures and does not want to jeopardize his performance for your convenience or to accommodate the needs of another co-worker. Just as with private clients, there are serious risks to offending a business person with your prioritization, perhaps more serious than in private practice: if a lawyer in private practice does not please a particular client with his work or timeliness, he may stand to lose that client or not have the opportunity to service that client in the future; if an in-house lawyer upsets the wrong co-worker in that same manner, he may be looking for a whole new job.

Goals and Objectives

While every counsel likes to see his or her clients accomplish their business goals, the pursuit of those goals is generally more fully shared by one working in-house. The continuation of a paycheck, and perhaps its size, may be directly tied to the continued viability and profitability of the company. In-house, you live and breathe the company, and the perception that you do so is an important part of your success as counsel. Most companies will pay substantial dollars for legal advice from a big, well-known law firm for issues which they feel warrant that treatment, but from its in-house counsel, regardless of the discipline or the complicated nature of the issues, they want practical advice and expect counsel to find a way to get done whatever the business side has determined needs doing. Even when legitimate legal issues with the proposed action or transaction exist, in-house counsel is wise to introduce them in a way that still creates confidence that he or she shares the company goals and is doing his or her part to accomplish them. Exactly how that is done depends on the personalities involved and the nature of the issues, of course, but keeping an “eye on the prize” is important.

Attorneys in private practice are often frustrated by working only on discreet parts of a deal and not getting to ride with it start to finish ' and perhaps not even know if it makes it to fruition. Generally, the in-house lot is better on this score, but not without exception and not without paying a price. Many big in-house legal departments get the same piecemeal involvement in company transactions, although their access to information about the transaction's progress and completion may be a little better. In-house, the client, after all, is right next door and pays your salary. It is also unfortunate, but seems often true, that the lawyer on the “team” is held to a higher standard than most of the other players, many of whom do not miss a lunch, never mind a vacation, to do their part.

If all goes well and counsel is even invited to the ribbon cutting (or closing dinner, corner bar toasts or similar celebration), the in-house counsel can unfortunately expect to have everyone thanked but him or her and the counterpart on the accounting side. If things go bust, however, counsel will get his or her share of the blame and perhaps the taint that develops in years ahead over deals gone bad. There are exceptions, of course; business people who truly appreciate the work done by the whole team and the pivotal role good legal counsel often plays. Expecting little going in will at least minimize your disappointment. Bottom line: If you are in need of regular ego gratification, an in-house position is not likely in your best interests.

Conflicts of Interest

Much is written about the guidelines and steps a private practitioner should follow to avoid conflicts of interest, but very little that addresses those issues for in-house counsel, where they take on a somewhat different spin. Affiliates of the company may have varying ownership structures, some of which may include third-party interests, yet transactions may be bundled together in a way that helps the weak and disadvantages the strong. Different divisions may be striving to accomplish things that cannot all be accomplished and something will have to be conceded along the way. A business person may be prioritizing based on his or her vacation schedule or incentive bonus, and may be directing an attorney's workload in a manner inconsistent with what the attorney otherwise believes to be in the best interests of the company. A department of the company wants to structure a deal in a manner that pumps certain published reports, giving a skewed, “good news only” perspective to the disadvantage of another division of the company. Do these represent conflicts of interest for the in-house attorney?

There are hundreds of other examples where what is good for the goose is not for the gander, yet in-house counsel works for the company that owns, employs or contracts with both of them. Viewing the company as “the client” does not resolve the internal conflict, and venturing into the minefield of company politics by trying ' no matter how diplomatically ' to bring disparate forces together is not only regularly unsuccessful, but is likely to alienate certain individuals who will work with that attorney differently, if at all, in the future. In a law firm setting, conflicts of interest are usually managed professionally and the issue is respected; in a corporate setting, they are generally viewed as legal mumbo-jumbo and indicative that the attorney is not a real team player, or is trying to avoid work to manage his or her own workload. Attempts to protect oneself with “CYA” memos will likely have the same effect.

Role Playing

In an in-house setting, it is far more likely that counsel will from time to time play a business role in certain transactions, while at the same time serving the legal function. The lines between business and legal blur substantially, particularly in areas that are inherently business-oriented (such as development and leasing). Until there is a problem, the crossover is generally viewed as efficient and effective since the company engages in many similar transactions and every employee is pressed for time and support. If it is hard to identify the client when there are multiple business people with occasionally conflicting interests, how is the client identified when the lawyer is directing some of the business decisions? Assuming that is not a concern going into the deal, how will it appear upon reflection on a deal gone sour? Clients of a private practitioner spending big money on legal fees appear willing to tolerate not only engagement memos and conflict letters, but those “CYA” memos or letters, whether as qualifiers to opinions or concluding paragraphs in correspondence.

None of this is meant to imply that any lawyer should ' or would ' commit any unethical conduct or compromise personal integrity. It is more difficult to categorize these things, however, when the person who may be pushing you to handle a negotiation in a way you find distasteful is the one who decides your year-end bonus or next year's raise. The best preventative medicine for that foul tasting stuff is first to research the company and the role of counsel before accepting an in-house position. Once there, it is helpful to develop meaningful, friendly relationships with the people with whom you work. You will not lose any prestige or lessen their confidence in your legal ability by making the effort, when the time is right, to talk sports, kids, travel or whatever interests you and them. Having a more personal relationship enables you to have off the record conversations about conflicts and concerns more easily without waiving flags or causing undo alarm. You will gain more credibility than you realize by letting your co-workers know, in a natural and easy way, that you not only have a great brain on those shoulders, but an evil sense of humor or a soft spot for the home team. You will also be less threatening to the business side if they know you a little better, foibles and all. Private practitioners have pressures to market their services to potential clients; most in-house counsel should impose pressure on themselves to continually market themselves and their services throughout the company.

In-house, it is also important to be selective with your issues. No matter who you are or what you do, most people will have some stereotypical expectations of the lawyer, many of which may not only be valid, but traits of which you should be proud. In a law firm, a certain level of professionalism is expected and usually delivered by the lawyers and the staff. In a corporate environment, however, you may find yourself surrounded by a somewhat different standard, and few will be receptive to your commentary on that. Picking the right time and the right issues is a creative, somewhat hit-and-miss process. Decide what is most important and preserve whatever political capital you may have for those issues. Save your most stern tone for those times, if they come, when you have to take a strong stand to protect your ethical standards or keep the company from making a shortsighted legal error.

Expertise and Contacts

We are all guilty of asking our friend the doctor about something ailing us even if we know it is well beyond his area of expertise. A company co-worker, given the choices of proceeding without legal advice, paying the costs of outside counsel, or asking for your help, will often try you first. If the matter is beyond the expertise the company hired you for, the win-win is not to turn your co-worker away empty handed (thus violating that “team” concept), but to offer to help identify the issues with him or her and then find him the legal expertise he or she needs elsewhere in the department or the community. Being equipped with a good network of people to call is a valuable contribution and one that will be appreciated, even if grudgingly.

Similarly, your value to the company increases substantially if you know as many of the lawyers working at other companies as possible ' both those engaged in your same slice of the business and those often on the other side. The benefits of having a broad network of contacts are many: you may be more efficient at your job by being able to cut through the posturing that often accompanies new relationships; the company is more likely to support your participation in industry conferences where you can make and reinforce those connections; and you are more likely to be included in face-to-face meetings with third parties when their counsel is asking for you by name. Valuable professional connections can provide precious political capital for the in-house counsel.

Greener Grass

Finding the right legal environment to suit your personality, skills, economic needs, lifestyle and interests is a very personal matter and in-house functions are as varied as the lawyers who fill them. What is right for you at the beginning of your career may be very different from what works later on, once you have not only honed your expertise, but also developed your tastes, people skills and work style. Before making any change or any assumptions about another type of practice, ask a lot of questions of others and of yourself. The grass is not generally greener over there, but whether you wiggle your toes in Bermuda or Zoysia is your choice to make.