The Employee-Lawyer: A Candid Reflection on the True Roles and Responsibilities of in-House Counsel

Abstract

This article1 is an examination of the variety of real-world roles and characteristics which are the hallmarks of valuable, and well-balanced, inhouse counsel. As the number of employee-lawyers has steadily increased over time, the expectations, needs, demands, and complexities of representing client-companies “in-house” have also increased. The traditional approach to, and the practice of, law leaves significant gaps in the preparedness of lawyers to join in the employee, and executive, ranks of businesses. While a substantial body of literature focuses on specific issues, such as a privilege preservation, or on specific roles or nuances of roles, such as serving as general counsel, few resources discuss the practicalities of an in-house lawyer’s responsibility to make sure his or her contribution to a client-company—combined as legal counsel and as an employee or executive—is valuable, productive, and appropriate. Much of what this article discusses is based on anecdotal experiences and observations. Opinions and experiences may certainly vary, but the fact remains, in-house counsel are increasingly responsible for adding value to, and becoming more involved in the business strategy of, their organizations. This heightened need for employee-lawyers to understand and fulfill roles outside of the mere practice of law means that successful in-house counsel must be willing and able to wear many more hats than an advocate’s wig. * Assistant Professor of Business Law and Ethics, Emporia State University. 1 With permission, certain portions of this article are adapted from a book, authored by Steven Lovett, and published by ABA Publishing. STEVEN L. LOVETT, CORPORATE COUNSEL GUIDES: PRACTICE BASICS (2013). 114 JOURNAL OF LAW AND COMMERCE [Vol. 34:113 Vol. 34, No. 1 (2015) ● ISSN: 2164-7984 (online) ● ISSN 0733-2491 (print) DOI 10.5195/jlc.2015.99 ● http://jlc.law.pitt.edu TABLE OF CONTENTS I. The Increasing Presence of, and the Need for, In-House Counsel ............................................................................................. 115 II. The “Simplicity” of a Single Client .................................................. 119 III. General Counsel ................................................................................ 120 A. Advisor, Counselor, and Pundit ................................................ 121 B. The Managerial Role: “O Captain, My Captain!” ..................... 125 C. Working as an Executive Crewmember .................................... 127 D. Emissary, Agent, and Proxy ...................................................... 131 IV. In-House Counsel .............................................................................. 136 A. Adaptability ............................................................................... 139 B. Dedication ................................................................................. 140 C. Dependability ............................................................................ 141 D. Mission Orientation ................................................................... 142 E. Preparedness .............................................................................. 144 F. Remedy Orientation .................................................................. 146 V. Outside Corporate Counsel ............................................................... 148 A. Loyalty ...................................................................................... 149 B. The Independent Voice ............................................................. 151 C. Specialization ............................................................................ 152 D. Standard-Bearer ......................................................................... 153 VI. Final Remarks ................................................................................... 155 Chart 1.1 Responsibilities Corporate Lawyers Found Most Challenging ....................................................................................... 156 Chart 1.2 Largest Occupations in Legal Services, May 2014 ................... 157 Chart 1.3 2014 Chief Legal Officers’ Report on Their WorkRelated Activities .............................................................................. 158 Chart 1.4 2014 Report on Most Sought After Non-Legal Skills Among Legal Department Staff ........................................................ 159 2015] THE EMPLOYEE-LAWYER: A CANDID REFLECTION 115 Vol. 34, No. 1 (2015) ● ISSN: 2164-7984 (online) ● ISSN 0733-2491 (print) DOI 10.5195/jlc.2015.99 ● http://jlc.law.pitt.edu I. THE INCREASING PRESENCE OF, AND THE NEED FOR, IN-HOUSE COUNSEL In 2006 there were approximately 18,000 companies in the United States that employed between 49,000 and 61,000 in-house lawyers.2 If those figures remained unchanged in 2014, it would have been reasonable to estimate that thirteen to sixteen percent of all persons whose occupation is practicing as a “lawyer” does so as in-house counsel: lawyers who are in management and/or who are employed by companies.3 This estimation does not take into account the more recent upward trend of in-house counsel positions.4 As a consequence of this massive professional demographic, most state bar associations, as well as the American Bar Association, maintain committees and sections dedicated to the nuances of practicing corporate law, or as it is interchangeably called, “business law.”5 Independent professional organizations have also sprung up to augment traditional barassociated affiliations. The Association of Corporate Counsel, dedicated to “serving the professional and business interests of lawyers who practice in the legal departments of corporations,” currently boasts the active membership of “a diverse mix of more than 35,000 in-house lawyers who represent more than 10,000 companies in the United States and 85 countries around the world.”6 Inside Counsel, a monthly magazine “published 2 Association of Corporate Counsel, Profile of In-House Counsel 4 (Dec. 2006), http://www.acc.com/vl/public/Surveys/loader.cfm?csModule=security/getfile&pageid=16297&page=/le galresources/resource.cfm&qstring=show=16297&title=ACC%202006%20Census%20of%20Inhouse% 20Counsel%20. This is a one-time study performed by Cogent Research (www.cogentresearch.com) for the Association of Corporate Counsel. 3 This estimation is based on a comparison of the figures provided by the Association of Corporate Counsel’s survey (supra, note 2) and an occupational chart provided by the U.S. Bureau of Labor Statistics. See U.S. Bureau of Labor Statistics, LARGEST OCCUPATIONS IN LEGAL SERVICES (May 2014), http://www.bls.gov/oes/current/ind_emp_chart/ind_emp_chart.htm (last visited Apr. 23, 2015). 4 Interview conducted by John Okray & Diana Li, Hiring and Compensation Trends for In-House Counsel, THE FEDERAL LAWYER (Mar. 24, 2014), available at http://www.mlaglobal.com/ community/thought-leadership/hiring-and-compensation-trends-for-in-house. 5 See, e.g., the Corporate Counsel Committee of the ABA’s Business Law Section, http://apps.americanbar.org/dch/committee.cfm?com=CL240000 or the Corporate Counsel Committee of the ABA’s Section of Litigation, http://apps.americanbar.org/litigation/committees/corporate/ about.html. 6 Association of Corporate Counsel, Membership, http://www.acc.com/membership/faqs.cfm (last visited Mar. 5, 2015). 116 JOURNAL OF LAW AND COMMERCE [Vol. 34:113 Vol. 34, No. 1 (2015) ● ISSN: 2164-7984 (online) ● ISSN 0733-2491 (print) DOI 10.5195/jlc.2015.99 ● http://jlc.law.pitt.edu specifically for in-house counsel,” has a circulation of 40,000, including chief legal officers, vice presidents, and general counsel.7 The world of business is increasingly complex. In an effort to remain competitive and to grow, companies face a dizzying array of challenges: employment issues, regulatory compliance, litigation risks, transactional concerns and relationships, multijurisdictional interests, intellectual property rights, media relations, and an ever-evolving, rarely satisfied, demand-side consumer. Lawyers have increasingly become a key participant in this environment, and businesses more than ever before recognize the tactical importance of obtaining and retaining competent, effective, and efficient legal counsel.8 Many businesses have taken the step of internalizing their lawyers by hiring in-house counsel to join their management and operations teams and including them within the decisionmaking matrix of their companies.9 In 2007, when Steve Jobs, the iconic founder of Apple, was struggling to find someone to build the right kind of legal department within Apple Inc., he found Daniel Cooperman, who was then the General Counsel of Oracle Corporation.10 Once Mr. Cooperman set up shop at Apple (with the blessing of Larry Ellison, the CEO of Oracle), he led the way to building a legal department that is now “integral to the company’s $300 billion business—from protecting its signature logo and 7 About Us, INSIDECOUNSEL, http://www.insidecounsel.com/pages/aboutus.php (last visited Mar. 5, 2015). 8 A remark contained in the Association of Corporate Counsel’s “Chief Legal Officers 2016 Survey” provides an approximate idea of how many lawyers work as in-house counsel. The ACC describes itself as “the lead organization serving the needs of more than 40,000 corporate lawyers at more than 10,000 organizations in 85 countries[.]” ACC Chief Legal Officers 2016 Survey 1 (Association of Corporate Counsel ed., ACC 2016), http://www.acc.com/vl/public/Surveys/loader .cfm?csModule=security/getfile&pageid=1422254&page=/legalresources/resource.cfm&qstring=show= 1422254&title=ACC%20Chief%20Legal%20Officer%20CLO%202016%20Survey%20%20Executive %20Summary&recorded=1 (last visited Feb. 5, 2016). The report also reflects “significant increases (greater than 10 percent) among in-house lawyer positions” in 2015. Id. at 31.