In-House Counsel

House Rules: Responding to Guesty

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I very much appreciate reader feedback on my columns, whether received via email or in the comments. Here’s one of the better critiques from the comments section last week, from “Guesty”:

“David — you need to decide what you’re trying to accomplish with this column rather than just describing negotiating a form contract with a customer in vague terms. Every corporate attorney negotiates contracts; you aren’t telling us anything interesting when you say you consider the risks to your client in each provision. For example, if you explained the degree of autonomy you have in negotiating (and why), that might be interesting (you might also describe your level within the legal group and who you’re answering to when you make a legal decision). Are you just playing CYA games within your company or do you really need the input of lots of different specialists? You imply it’s all a BS CYA game to make auditing happy — if that’s true, it’s kind of a depressing way to make a living.”

There are some worthwhile points made by this commenter. Let me try and address some of them….

The above comment was signed anonymously, by “Guesty,” but the person claims to be a fifth-year associate moving in-house at a bank. The comment reflects some of the difficulties of writing a column addressed to an audience as large as Above the Law’s; it’s challenging to draft something that is interesting to everyone, all the time. In fact, it’s impossible.

In my prior columns, I’ve tried to throw out a mix of topics within the realm of contract negotiation, which is my specialty. I know for a fact that many in-house attorneys work in very small shops or by themselves, and there are a boatload of new in-housers who read this column, as well people who aren’t in-house yet but are thinking of making the move. I wrote my last column with such readers in mind — readers who might welcome the chance to learn about or review the basics of contract negotiation. But I can see how someone who has been doing Biglaw transactional work for five years, plus a summer, might find some of this a little banal.

One general observation: commenter “Guesty” apparently seeks some details that are frankly too political to deal with on a public, widely read industry website. In hindsight, I suppose I could have written under a pseudonym, in order to provide juicier tidbits. But I decided to use my real name and company in an effort to shoot for credibility, and to remain approachable for folks who want to reach me at my Gmail address. Each approach has its advantages and disadvantages; these should be kept in mind when reading the column.

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To answer some of the specific questions of “Guesty”: yes, some of an in-house lawyer’s job is indeed playing “CYA” to keep within the bounds of auditing — but that’s the case in any corporate structure (as I suspect “Guesty” will learn after moving in-house). As far as autonomy to make decisions, I have as much autonomy as is warranted, and if I push the boundaries too far, I answer for it when the auditors come around. It doesn’t chill my decision-making; rather, I try to inform future choices with the experience of what might get passed, and what absolutely won’t. I know from speaking with enough in-house attorneys that the battle between legal and accounting is not only fought at my place of business. Among corporate counsel, it’s an inside joke (pun intended) that we really work for the accountants.

And yes, I do require input from a host of subject matter experts. It saves me from wading into dangerous territories such as tax, insurance, and the like. At my company, we are fortunate to be big enough to enjoy the luxury of emailing an SME and receiving advice back within 24 hours that would have taken me much longer to ascertain on my own.

As far as my position here, I am senior counsel, with approximately three strata above me in the corporate hierarchy until reaching the general counsel. There are numerous senior counsels here; some have been here many years, and some just four or five. So in terms of attaining GC status at this company, it would be a long journey. But that’s fine with me, since I don’t yet have nearly the experience necessary to take the reins of an OGC as large as ours. It is a huge responsibility, and my career thus far could benefit from additional exposure in such areas as compliance, securities, and M&A. That doesn’t mean I have given up, just that I have a long way to go.

(Of course, many GCs of smaller companies take on these challenges every day without the experience necessary to answer to the board of a $16 billion corporation, and they do just fine. I assume that trial by fire is a bit more palatable when you’re responsible for a much smaller enterprise.)

So, keeping in mind the limits placed upon me as an in-house lawyer writing under his real name, I’d now like to request suggestions for future columns. Understanding that Above the Law’s audience is diverse, please email me your requests for information, and I’ll try to use some of them in future columns. Thank you for reading and for your story ideas, which I look forward to receiving.

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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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