Legal Research

?IN-House Counsel, They Have It So Easy?

By Brian Maude

Almost a year ago, I closed my private practice and accepted a position as in-house counsel. It was an intriguing challenge: I had acted as a kind of ?outsourced? in-house counsel to a number of companies, and I now had the opportunity to do that work full time. I was swapping all of my clients for one, and giving up being my own boss in exchange for having one (accompanied by a regular paycheque and a number of extra benefits).

I don?t regret the decision at all. It?s been a fascinating challenge, and I?m relishing all of the new opportunities. Notwithstanding that, there were a number of things to which I needed to get (re-)accustomed. I now had co-workers (I had run my own office ? solo ? for the past 7 years). There were technology protocols and procedures (I had drafted, implemented and ignored my own for most of the previous decade), and there were meetings. Lots. And lots. Of meetings.

At first, the time spent as in-house counsel (in my case) was on reading and familiarizing myself with a lot of the policies and procedures that had been drafted and implemented here since the company was founded. Like many new, small companies, this one had taken a stab at drafting policies. They then hired a consulting firm to draft a number of them and oversee their implementation. My new role consisted (in part) of revising and updating them.

Suffice it to say the word ?boilerplate? kept reverberating in my head.

Small companies pride themselves ? rightly ? on eschewing institutional, nameless/faceless policies in favour of ones that are more flexible, more adaptable, and more personalized. The problem lies in ensuring that those policies (which have been flexed, adapted and personalized, over and over again) are applied in a uniform fashion, and that they comply with existing legislation. Another problem lies in explaining why uniformity and legality are critical benchmarks to people unfamiliar with such lawyer-inspired encumbrances.

Case in point: we rent living quarters for our employees who work on isolated (and not-so-isolated) job sites. For awhile, these arrangements were, to be charitable, ?informal?. Ensuring that proper leases were in place became a bit of a hobby-horse of mine. Resisting my legalese nonsense became a bit of a hobby-horse of some of our living-quarter-procuring staff. In the end, we agreed on a suitable compromise that saw that my (and the company?s) needs were met and that their jobs were not made more difficult.

The point being: not only are you now the legal advisor (accustomed to providing advice and letting the client decide whether to follow it), you are now the legal advisor who is tasked with providing the advice, ensuring compliance with said advice, and all the while remaining mindful of your place in a much larger team. The team dynamic is not one that is regularly touted at law school (or in solo practice).

The ?ensuring compliance? aspect can also prove challenging. As outside counsel, it?s easy to advise in writing, strongly urge compliance, and then let the chips fall where they may. You?re convinced of the soundness of your advice. You?ve provided it in writing, and in a timely manner. You?ve strongly recommended that your client adopt a course of action. You have that warm, secure feeling of your backside being properly covered.

However, now that you?re ?part of the team?, compliance takes on a much more challenging role. Compliance now becomes subject to budgetary constraints, senior management (and, sometimes, Board of Directors) approval, and implementation protocols. It?s no longer merely an offered opinion; it?s now an ?Action Item? (along with a few other, choice, MBA-inspired terms).

As in-house counsel, you gain a better perspective on the frustration of a client who questions the feasibility of a lawyer?s advice. You gain a certain sympathy for the client who resists a legal strategy, thinking it too convoluted, too costly to implement, unrealistic. If only those lawyers spent some time in industry, you begin to think, perhaps they?d appreciate the true difficulty of what it is they?re suggesting.

?Outside counsel?, you find yourself musing, ?they have it so easy?.

Full post as published by Slaw.ca on March 18, 2011 (boomark / email).