Biglaw, General Counsel, In-House Counsel

If It Goes To People Above Me, Then It Goes To Me, Too

Columnist Mark Herrmann offers some advice for in-house newbies, in-house oldbies who don't understand, and lawyers at firms who might want to consider whether these instructions make sense at law firms, too.

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I never heard these words before I went in-house: “If you send something to a person above me in the hierarchy, then send a copy to me, too.”

Now I hear (or speak) those words all the time. And those instructions seem pretty easy to grasp.

Remarkably, a fair number of people don’t seem to understand what those words mean.

I offer this column for the benefit of in-house newbies, and in-house oldbies who don’t understand, and lawyers at firms who might want to consider whether these instructions make sense at law firms, too.

If you’re sending something to someone above me in the hierarchy, then send a copy to me, too.

Why?

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Because folks above me in the hierarchy assume that I know what’s happening in my department. If you send secret messages to folks in the upper echelons of the corporate structure, then that won’t be true; I’ll be ignorant of the secrets you shared in my absence.

Perhaps examples best illustrate the point. Here’s a first example: The CEO will be chatting with some regulators next week, so you send the CEO a small package of materials for her to read before the meeting. You don’t copy me.

The CEO sees me in the hallway and asks: “So, do I really have to read the materials that Boswell sent to me, or can I pass on that?”

How am I supposed to answer that question if I never saw the materials?

And somehow it doesn’t seem right to ask the CEO, “What materials?”

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People above me in the hierarchy assume that I know what’s going on. Don’t cause that not to be true.

Here’s a second illustration: You send a note to the CFO saying that a recent regulatory investigation, or piece of litigation, or whatever, may become significant, and the finance department should monitor it.

The CFO swings by my office: “What’s the story on that new investigation that’s disturbing Boswell?”

My answer can’t be, “What investigation?” Or even, “Which of the many investigations is bothering Boswell?”

My answer has to be knowledgeable. I have to know which investigation is bothering you, and why, and that you’ve decided to raise it with the CFO. Otherwise, I’m not doing my job (and I look like a moron, which happens all too often even without your help).

The same rule applies to outside counsel communicating with a corporate client. If you’re talking to the general counsel about a lawsuit, don’t mention stuff that you haven’t already mentioned to the head of litigation. (Or, if you do, immediately tell the head of litigation about your conversation.) The general counsel will assume that the head of litigation knows what’s happening in his department. You can’t make that untrue.

Does this rule — if it goes to people above me, then it goes to me, too — apply at law firms?

I never thought about this during the decades that I worked at a firm, but I may have naturally followed the rule anyway. When I was an associate, I wasn’t typically communicating about significant stuff with clients without copying the partner (or at least mentioning the issue to the partner).

This wasn’t because partners were beating on me not to hide stuff from them, but just a matter of common sense: If something matters enough to raise it with the client, then it probably makes sense to keep the partner in the loop.

Don’t get carried away here. If you’re talking to some low-level person at the client about the format in which you’ll gather electronic documents, have at it. No one will ever ask more senior people about that stuff, and no one particularly cares about the issue.

But for stuff that matters, loop in the senior guy.

It’s easy for the senior guy to delete unnecessary emails. It’s impossible for the senior guy to read your mind and discern things that he’s never been told.

So that’s today’s rule: If you’re sending things to people above me in the hierarchy, then send a copy to me, too.

Nothing to it, right?

Mark Herrmann is the Chief Counsel – Litigation and Global Chief Compliance Officer at Aon, the world’s leading provider of risk management services, insurance and reinsurance brokerage, and human capital and management consulting. He is the author of The Curmudgeon’s Guide to Practicing Law and Inside Straight: Advice About Lawyering, In-House And Out, That Only The Internet Could Provide (affiliate links). You can reach him by email at inhouse@abovethelaw.com.

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