The Lawyers Weekly - In House Counsel, Spring 2012

Afew years ago, I went from private solo practice to a position as general coun- sel for a public company. It was an intriguing challenge: I had acted as a kind of “ outside” general counsel to companies, and I now had the opportunity to do that work from the other side of the fence. I would be exchanging all of my clients for one, reporting to a board of directors and getting a regular pay-cheque and a variety of other benefits. I was a firm believer in the adage that in-house counsel “had it easier” than their counterparts in private practice.

I stayed with the company for about a year and a half, and don’t regret my experience at all. It was a fascinating challenge. There were things to which I needed to get reacquainted: co-workers, technology protocols and procedures (having ignored my own for most of the previous decade), and the meetings. Lots. And lots. Of meetings.

At first, my time was spent familiarizing myself with a lot of the policies and procedures that had been adopted since the company was founded. Like many new, small companies, they had taken a stab at drafting their own policies. They then hired consultants to redraft and implement new ones. Part

of my new responsibilities consisted of revising and updating these consultants’ policies. Suffice it to say: the word “boilerplate” kept reverberating in my head.

Small companies pride themselves — rightly — on eschewing nameless/face-less policies in favour of ones that are more flexible, adaptable and personalized. Problems occasionally arise ensuring that these policies (which have been flexed, adapted and personalized multiple times) are applied uniformly, and that they comply with existing legislation. Another problem lies in explaining why uniformity and legality are critical to people unfamiliar with such lawyer-inspired encumbrances.

You are no longer the legal advisor providing advice and letting the client decide what to do with it. You are now the chief legal advisor who is tasked with providing the advice and ensuring compliance with said advice while remaining mindful of your place as part of a much larger team. The team dynamic is not regularly touted at law school (or in solo practice).

“Ensuring compliance” can also prove challenging. As outside counsel, it’s easy to provide advice, strongly urge compliance, and then let the chips fall where they may. You’re convinced

of the soundness of your recommendations. You’ve strongly advised that your client adopt a particular course of action. You have that warm, secure feeling of your backside being covered.

However, now that you’re “part of the team,” compliance takes on a more challenging dynamic. Compliance now becomes subject to budgets, executive (and, sometimes, board) approval, and implementation protocols. It’s no longer merely an opinion. It’s now an “ action Item” (along with other choice, MBA-inspired terms).

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