In-House Counsel: 'No Ordinary Lawyer'

When asked to pen the first column for this new publication, I was grateful for the privilege but daunted by the responsibility. What could I add to the discourse about “company lawyers?”

Although I have spent my legal career to this point in the service of corporate entities, I was uncertain my experience was either unusual or unique. It wasn’t until I received a phone call from a young lawyer who was aspiring to be an in-house counsel looking for advice that I realized the majority of lawyers who work in private practice, regardless of their seasoning, do not have a clue of what we do.

I believe it is important for both inside and outside counsel to understand the nature of the other’s work environment. I will attempt here to describe the practice of law as an employee of a corporation.

‘No Ordinary Lawyer’

My first observation is that all names for lawyers in companies are compound: In-house counsel. Company lawyer. Corporate Counsel. Staff Counsel. Legal Counsel. Assistant General Counsel. Associate General Counsel. General Counsel.

It is an appropriate coinage for corporate counsel to have two names as they are not just lawyers (as if that alone isn’t sufficient). The job titles announce to the world that this is no ordinary lawyer. This lawyer is part of a larger entity. This lawyer has to provide legal advice while assisting in the conduct of a business.

Often, in-house lawyers have the additional titles of vice-president and secretary, or may have responsibilities for pure business functions of the corporation, such as risk management, compliance, and human resources.

But why is this type of practice so different? The fact that a company lawyer is both the participant and an observer of the corporate activities supported makes this brand of lawyering unique. William F. White ably described the tension and unpredictability of the participant/observer relationship in his seminal sociological study, Street Corner Society — a valuable read for in-house counsel who perceive themselves at times on either side of the fence separating corporate actor and legal advisor.

Navigating The Course

The best occupational analogy to the function of a company lawyer is to a navigator on board ship. The navigator must know the capabilities of his vessel, much like the corporate counsel must be intimately familiar with the resources and attributes of his organization. The navigator needs to assess the hazards of the course the captain has proposed. The in-house counsel has to understand and evaluate proposed business activities by management for inherent dangers or pitfalls.

The navigator is just the navigator, however. She is not the captain. The captain may decide to accelerate the voyage and the navigator must perform her function to the best of her abilities even when the captain’s decision may increase the risks to the vessel.

The company lawyer takes direction from management. She can provide advice and warn of hazards but ultimately must apply her skills and talents to support management’s business decision. To be viewed as an aid to the enterprise and a collaborator with management, business lawyers should recall Andrew Carnegie’s view of his own counsel: “I pay my lawyers not to tell me what not to do, but to tell me how to do what I want to do!”

Not being in charge does not mean the navigator blankly watches the vessel run aground nor does it mean the corporate counsel silently supports a dangerous business practice. The navigator is expected to stand in front of the ship’s wheel and to wrench it from the captain’s hands if the craft is headed for disaster.

The company lawyer must know not only when to make a noisy withdrawal, but also when to commence a cacophonous engagement with management to stand in the way of a perilous decision. Both professions — navigator and in-house counsel — require their practitioners to challenge their commanders when the enterprise is threatened by a proposed action. Their obligation is to safeguard the vessel and crew or the company and its assets, even at the risk of insubordination.

Know The Business From Top To Bottom

How do you become an effective corporate counsel? Knowledge of your company and the markets it competes in is your first task. Next, in order to provide competent legal advice to your fellow employees, you have to intimately understand the broad range of job functions in your company.

Know what the credit manager’s issues are as well as the engineer’s and information technology specialist’s. You need to speak their language in order to help them. Senior management is skilled in the language of business and accounting and you need to acquire these skills if you expect to make a contribution and to be seen as a business partner.

You will be asked to supply counsel on all matters of concern to the corporation. There are myriad areas of law that the in-house counsel has to be proficient in. The specific legal knowledge requirements of the position directly reflect the business and its markets. An understanding of government, regulations, customs, transportation, safety, immigration, taxation, securities (if a public company) are but a few of the topics you will be solicited about.

Commercial activities require familiarity with the UCC, the antitrust laws, and knowledge of the underlying national and international laws governing intellectual property. Typically, you will need a working understanding of the federal and state laws governing employee relations.

To do your job, you must read everything about the multiple areas of law affecting your company. Continuing legal education is a necessity. Participation in groups of in-house counsel such as the New England Corporate Counsel Association, the American Corporate Counsel Association, or the state bar association’s committee for corporate counsel are invaluable sources for information and resources. As the average corporate department is small, these activities may be your only contact with legal professionals performing similar work.

Building Constituencies

The company lawyer must be accessible at all members of the organization. This access can bring the first information about smoldering issues or potential problems. It is the best opportunity to address difficulties before they get out of control.

By providing access to everyone, the in-house counsel can see issues early and from all angles. Remember, your constituency is everyone. The corporate counsel works across departments and can be effective at bringing disparate parts of the company together. She can function as the corporate memory of how things are done.

As an attorney governed by a Code of Professional Responsibility, the corporate counsel can be the touchstone of ethical behavior and proper business practices. The in-house lawyer is observed by all members of the company and represents the company to outside consultants and business partners so her reputation must be beyond reproach. The absence of any appearance of impropriety is not the same as being a risk taker.

Company lawyers are part of the larger business entity that manages risk every day. They need to supply counsel in a manner that acknowledges risks and handicaps outcomes as that is what their business associates demand.

In addition to the requirements of understanding the company, its business, and the laws affecting its operations, the in-house lawyer must have knowledge of how to implement procedures within the company to reduce risks. This can take the form of compliance programs to address government regulations to routing and traffic documents to force matters through a sign-off process of required corporate personnel.

Benefits need to be articulated prior to the implementation of any new processes and buy-in by the affected parties is the only sure way to make it work. The in-house lawyer is constantly building constituencies for change but can ill afford to alienate other members of the organization upon whom she relies for information and support.

What is the attraction of an in-house practice? Perhaps it’s the opportunity to embark on a voyage of unknown destination with a crew of knowledgeable individuals of a variety of disciplines, or the chance to practice an honorable profession in the support of a business. Or maybe it’s the allure of continual learning in the law and immersion in a competitive enterprise, or having the good fortune to be asked to pull out your maps and instruments to plot a course for the next port-of-call.

Andrew D’Amico is president of New England Corporate Counsel Association and is general counsel and vice president of Brookstone Corporation based in Nashua, N.H.