A Different Shade of Green(er Grass)

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Article by Unknown Featured Author

Posted in 2016

During our last CABA newsletter committee meeting, someone suggested an article on the transition from private law practice to an in-house legal department. I was the only in-house lawyer in the room, so it didn't take long to realize I was going to be the subject matter — and author — of the article. With few good options to quickly exit the room or hide, I said yes.

It's always a little scary to publish your personal thoughts on any topic, particularly your job. But the person suggesting the article had a point: the in-house legal world is a topic that lawyers in private practice seem to have a lot of questions about. I certainly did during my 15 years in private practice prior to moving. I was always curious, and I was usually envious. When I run into lawyers I know these days it's almost inevitable that there will be questions at some point in the conversation about life on the "other side."

Once I endure the typical jokes about a "cushy" job and forgetting how to find the courthouse (it isn't and I haven't), I've had some really interesting and thought-provoking discussions with private practice lawyers. With an abundance of material and no real good place to start, here are some of those questions, along with some of my own thoughts and observations on the transition from private practice to a corporate in-house legal department.

[Jokingly] "Do you miss the billable hours"?

Of course I don't. But to this day — almost three years in — I still find myself occasionally thinking about tasks, meetings, calls, etc. in terms of time increments. At this point, I think it's ingrained in me to the point I might never get my sanity back. But at the same time, I've found it helpful to maintain some frame of reference in that world for reviewing outside counsel bills and working through budgets for cases.

But to get back to the question: yes, practicing law without that constraint has helped me realize that maybe I enjoy the pure practice of law more than I thought. One of the first things I did at this job was sitting in an all-day teaching session with an electrical engineer on the fundamentals of electricity and investigating incidents involving an electrical contact. This was an 8-hour day that that has been invaluable to me for what I do in this job day-to-day. But had I still been billing hours, this would have been a non-billable day that I would have had to replace somewhere, even though learning this material was beneficial to my practice. It was a good feeling, and I try to remind myself to use that latitude to participate in more professional development and learning opportunities now that a time sheet is not lurking in the background. My employer encourages pro-bono and community involvement, so it's also nice to invest time in those kinds of activities without having to make up the hours to keep the firm's lights on and Westlaw subscription paid.

Being away from of billables has also reiterated for me some of the inherent flaws in the billable hour system for legal work (not that I have a better suggestion). Even with the best intentions, the billable hour system sometimes lets the tail wag the dog when deciding what to do, and not to do, on a client's legal matter. I think I've always known that, but practicing law these days without a timesheet has made it clear to me.

"Do you like having just one client?"

Sure. Doesn't feel like it, though. On any given day, I could be dealing with a personal injury case in the Delta with engineers and linemen, pursuing a property damage matter for our damage recovery group, handling a bankruptcy deposit issue for the credit and collections department, discussing public relations or political considerations with regulatory and management on unpaid usage by a small city or business, enforcing pole-sharing agreements against a rural cable company, or working with the procurement group on a vendor contract. That's 6 different departments just off the top of my head—all of them with different people, personalities, legal needs, and expectations. And usually, these departments are not day-to-day interacting with one another. So some weeks I feel like I have many different clients and cover a broad swath of legal needs in which I may, or may not, have much experience.

However, the good thing is that the legal work I do for these different parts of the company ultimately benefits that one client's interest. That's something I try and keep in mind, and the more I think of it that way, the better lawyer I become. What I mean by that is if I'm one of the few employees that coordinates with all of these different departments, I'm in a better position to spot problems or instances where the departments need to better coordinate on something, do things differently, etc. Knowing the different issues facing the various departments allows me to be proactive and try to solve problems before they become bigger problems (i.e. litigation). In-house lawyers are often the first responders to a crisis with legal implications, and over time (with some trial and error, of course), that will help put you in the position to be on the lookout for legal potholes that can be avoided. While an outside lawyer is usually insulated from some critical internal functions and processes, being in-house allows you to be immersed in the nuances and puts you in a position to serve your clients at a higher level.

Being in-house also seems to change the attorney-client dynamic, at least for me. Rather than seeing you as a hired gun charging by the hour, I like to think my clients look at me as a strategic and long-term partner as opposed to a by-the-hour expense to the company. I'm a free phone call to my clients these days to help solve a problem or provide advice. Does that mean those clients call you more often? Yeah, probably so, but I think this dynamic puts me in a better position to address my clients' legal issues.

"Is there anything you miss about private practice?"

Maybe a few things. Strangely, client development is one of them. It was always the simultaneous source of one of favorite parts of private practice, but also my deepest stresses. There was no greater rush to me than making a pitch to a new client, and of course, it was always much better when you the pitch worked. And continually fostering the client relationship once it began was something I really enjoyed. To this day I maintain contact with some of my former clients in different parts of the country. But in this ultra-competitive legal economy, what kept me up the night more than anything was also client development. Constantly on my mind were things like who's courting our clients, are our clients happy or are they looking, why did a certain client choose another law firm, and how can I better promote myself for future client development. So while I definitely miss that part of private practice, my burgeoning wrinkles and continued graying may have slowed down just a tad over the last few years.

Private practice life also put me in an easier position to monitor the pulse of the legal happenings locally than in-house. In a law firm it seems I was always quicker to hear about the latest talk on how certain judges were handling things, tales of recent decisions or verdicts, and what lawyers moving around. Being in-house and without an army of lawyers in every office down the hall, I'm a little more isolated from some of that. The folks I see in the coffee room nowadays won't necessarily be lawyers who like to discuss lawyer-type gossip. That said, staying plugged in can be done, but it takes a little more effort these days. I try and attend as many local legal organization meetings as I can and visit more often with the lawyers in the area that I know.

"So [whispering] … tell me about the money difference and earning potential in-house versus partnership at a defense firm."

Next question, please. Thanks.

"The legal market can be scary — being in-house seems so much more secure"

Who knows. Maybe it is, but maybe it isn't. First, when you're in private practice, identifying your "value" is easy — it's billing and collections. In law firm, when you're profitable, you're golden. Being in-house is different. As an in house lawyer, you are a cost center to the company, so showing your value is a little trickier than just showing a firm your impact on the bottom line. It can be done, of course. It just requires you to be proactive in your advice regarding potential legal problems, staying on top of what's happening at the company, and being creative about ways you can help assist the company accomplish it's mission. From that perspective, being in-house has definitely made me focus more on the dual role of a legal counsel and being a business advisor.

Second, I don't know that you can count for certain anything in today's ever-changing economy, especially in the legal world. One uncomfortable aspect of the in-house move for me was checking my clients at the door when I started here. It was always nice to think that if the firm dumped me, I could presumably still pay my bills doing legal work for my clients. It was like having a parachute, even if the parachute was not the best and you had a eat Ramen noodles every meal after using it.

"Must be nice to have standard hours, huh?"

Why don't you ask for banker friends and let me know. The truth is, the hours are a little more regimented. But we are still practicing law and with my employer, are handling many — if not most — of our matters in-house. When things are hopping, the hours are no different than they were in private practice. I don't spend less time preparing for a deposition I'm taking or a trial I'm participating in than I did in private practice. When I leave town for a trip or vacation, I don't lock my phone away and pick it up when I return. As the first responders for legal issues and crises that crop up, I've not seen anyone in our legal department raise a "sorry, I'm a 9-5 employee only" sign and walk away. I don't either. Taking care of our clients is a round-the-clock job whether you're in private practice or in-house.

And when the substantive legal work slows down, there are always plenty of administrative tasks in my role here that didn't exist in private practice: reports, budgeting, reports, various meetings, reports, community involvement and pro bono, reports, and other reports. You get the picture.

"What are some tips for working with outside counsel?"

Always difficult to answer. Everyone is different. Here are some things I think are important, some of which are my own thoughts and some of which are things I've observed:

  • Define your respective roles at the beginning — this applies to in-house folks as well. With companies doing more and more work in-house, the role of outside counsel, in some matters, has changed. Get clarity early as to those expectations such as who is handling what tasks, who will be the point person for communicating with witnesses and gathering documents, who will take the lead on major motions, depositions, etc., and when you are expected to consult with the in-house lawyer on decisions.
  • Communication — depending on the respective roles, it's also helpful to establish from the beginning the frequency and manner of communication and updates. If it's not a matter in-house counsel will be working on day-to-day with you, find out how that in-house contact prefers to receive updates.
  • Put your people in touch with my people — make sure you and your office staff are aware of how you'll function together day-to-day. For instance, it's a good idea to identify and address any incompatible technology or processing issues such as the kind of document management software to be used if any, how documents will be stored and shared between the offices, etc.
  • Budgeting — with legal spend a major consideration in the modern in-house legal department, it's always good to discuss budgeting and anticipated fees early and often.
  • Don't create unnecessary administrative problems — for example, get bills submitted timely and follow any outside counsel billing guidelines that might exist. If they aren't clear or you need exceptions, address those early in the process.
  • Help the in-house lawyer be proactive — look for opportunities to help your in-house contact be better in his or her role by passing along practice tips on helping avoid disputes, offer training to your client on preparing witnesses for depositions, and get clients on your newsletters/webcasts/educational forms about new legal issues. Some might simply ignore it, but others will appreciate it and remember it.