Holidays and Seasons, In-House Counsel, Litigators, Travel / Vacation

House Rules: Year-End Press

In-house columnist David Mowry mentioned in a past column that the year-end press can lead to some very interesting requests: field reps asking for things that they (should) know to be questionable ethically, absurd customer demands (funny thing how the customers know it’s year-end and try to use that leverage), and the like. It is times such as these, when the pressure is on to assist the Field achieve their targets, that in-house attorneys must be most vigilant in their duty to the corporation....

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Fiscal year end for us is officially this coming Saturday. Until then we’re expected to be on call 24/7. While it might seem draconian, we’re a sales-based technology company, and the push is on for the “Field” to get their year-end orders completed. I readily admit that being “on-call” just four times per year (three quarter ends and one year end), rather than “all year all the time,” is not a bad deal.

When I was in private practice, you were expected to respond top clients ASAP, if not sooner. It didn’t matter where you were or what you were doing, you had to respond. I brought that attitude with me when joining my current employer. This not only took many of my clients by surprise, but by putting myself out there as a go to attorney 24/7, I find that very few clients actually take advantage of that proposal. Truth be told, I am able to “disconnect” on vacation weeks, and I have forewarned anyone tempted to call me at home that if it isn’t a true emergency, I’ll just put my two-year-old on the phone and let them discuss the latest happenings in rugrat world….

I mentioned in a past column that the year-end press can lead to some very interesting requests: field reps asking for things that they (should) know to be questionable ethically, absurd customer demands (funny thing how the customers know it’s our year end and try to use that leverage), and the like. It is times such as these, when the pressure is on to assist the Field achieve their targets, that you must be most vigilant in your duty to the corporation. We all want our companies to succeed; bonuses can be tied to meeting revenue targets, ergo the more we sell, the better the bonus pool, and so on. But risk needs to be kept in check and always at the forefront of decision making. I often rely on my litigation background when assessing risk: what a judge might do if things go bad, how an adversary might react in a litigation, or even whether we would get to litigation. These are all business decisions of which I must be cognizant when deciding whether to agree to a particular request.

Some of this may be second nature, or intuitive, but reminders can’t hurt. Of course, if you work for a pharmaceutical giant and you enter into a joint venture with a small development foundation in Oklahoma, part of your business thinking might well entail the potential costs or liabilities in the event you decide to tweak the invention “just enough” and end up before a district judge. Those potential costs may be nominal in the scheme of reaping the rewards of marketing “your” invention. The point being that business decisions are centered on the type of business you’re in and the ability of your company to absorb the costs of exposure.

Year end becomes a special animal if the first three quarters have not gone as planned. The pressure to meet year-long projections and goals is attenuated in order to make up nine months of shortfall in a three-month period. Today, we’re facing an economy that is improving, albeit at a glacial pace. So, the crush is on for companies that are trying to make up their year in this last week of December. It remains tantamount for in-house attorneys to stick to their guns in the face of pressure to rubber stamp activities that could expose the company – if not in the immediate future, somewhere down the road. There is a reason that in-house counsel have a reputation as the “no” folks. However, counter that stereotype with an attitude of assistance in getting the deals done, and the times you have to say no might be relegated to year-end shenanigans.

I hope you all had a great holiday season, and here’s to a very productive, lucrative, and satisfying 2012. Of course, the world’s going to end, so here’s to an even “happier” 2012.

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After two federal clerkships and several years as a litigator in law firms, David Mowry is happily ensconced as an in-house lawyer at a major technology company. He specializes in commercial leasing transactions, only sometimes misses litigation, and never regrets leaving firm life. You can reach him by email at dmowry00@gmail.com.

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