Biglaw, In-House Counsel, Partner Issues

If The Issue Is Too Hard, Just Send It To Law!

In-house columnist Mark Herrmann describes behavior from outside counsel that he finds very frustrating.

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When you work at a law firm, you must actually solve problems.

If you’re paid to win a case, you must identify the route to victory and develop the facts that take you there. (“They don’t pay us $15 a minute to lose.”) If you’re arguing an appeal, you must anticipate every possible question and figure out a persuasive answer to it.

There’s no place to hide and no one to whom you can push hard issues.

Not so in a corporation: If an issue is insoluble, just send it to the law department! That puts the matter to rest, and you didn’t have to figure out the answer!

Remarkably, I’ve seen this solution proposed not just by folks who work in-house, but by outside counsel, too . . . .

First, the in-house example: An overseas regulator will be questioning employees about how the company manages a particular line of business. Those questions might not be answered easily; creepy-crawlies are lurking under the rocks of data privacy, antitrust, conflict of interest, or whatever else you care to imagine for purposes of this hypothetical. The compliance department is preparing business folks for their questions and, to this end, conducts mock interviews.

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One mock interviewer poses an unanswerable question — one that makes clear just how untenable the company’s position is. Stumped, the business guy scratches his head: “That’s quite a hard question. How the heck am I supposed to answer that?”

“Just tell the regulator that you send questions like that to the Law Department!”

“But how would the Law Department answer that question?”

“I don’t know. I don’t think there actually is an answer to that question. But, for purposes of this interview, just tell the regulator that you’d ask the Law Department to resolve this.”

I guess there’s a chance this kind of preparation will help the business guy survive his interview, but wouldn’t it be better to wrestle the issue to the ground and gin up an answer? “I’ll send it to the Law Department and pray for a miracle” just doesn’t seem too satisfying.

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Here’s an example involving outside counsel: “We need a draft policy addressing a very tricky issue. Can you take a look at the federal and state laws involved and then take a crack at drafting the policy?”

“Absolutely! We’ll have it back to you in two weeks.”

And then the draft policy arrives: “For easy issues A through D, the business unit will say yes. For easy issues E through H, the business unit will say no. For the one hard issue [which was the reason the company retained outside counsel in the first place], the business unit will refer the issue to the Law Department.”

“That’s pretty good guidance for many of the issues. What about the hard one? When the Law Department is asked the hard question, what’s the answer?”

“Your lawyers will have to think about it and respond appropriately.”

“But what’s the appropriate answer?”

“Damned if I know. If I knew what the answer was, I’d have written it into the draft policy.”

“Why did we hire you again?”

The problem with hard questions is that they’re so darned . . . hard. That’s why you get paid the big bucks to solve them.

So solve them. It really isn’t an answer to say that we’ll send the insoluble questions to the Law Department, and hope that the folks there are smarter than you are.

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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