In-House Counsel

Inside Straight: On Clients Who Can’t Tell Good Work From Bad

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I recently got a lift to the airport from a lawyer at a mid-sized firm who I’d met only earlier in the day. “It must be a pleasure to work for you,” he said.

On the one hand, that seemed strange, since I work so hard to establish a public persona that I’m a pain in the neck. (Frankly, that’s not much of a charade.) On the other hand, this seemed not at all strange, since I’ve now grown accustomed to lawyers at firms sucking up to me.

But I figured I’d play along: “Why would it be a pleasure to work for me?” I asked, innocently. “I’m pretty tough on our outside counsel.”

“Because you can tell good from bad. You worked in private practice for 25 years, and you’ve labored in my field. I suspect that, back when you were playing the game, you could write a pretty good brief. When an outside lawyer sends a bad brief to you, you may criticize it, but at least when a lawyer sends a good brief to you, you’ll recognize that it’s good. I work with an awful lot of clients who can’t distinguish good work from bad.”

Ha! Here’s an issue that I’d noticed when I was in private practice, but never really thought about. And it’s an issue that arises frequently in-house, because an in-house lawyer’s clients typically are not lawyers. My chauffeur may have thought that he was currying my favor by flattering me, but in fact he was doing something much, much better — he’d given me fodder for a blog post.

What should lawyers do when their clients can’t tell good legal work from bad?

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House Rules: Meta-Networking

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One of the benefits of presenting to large groups of in-house lawyers is meeting large groups of in-house lawyers. I am happily ensconced here in my job, but I have never stopped networking. I never miss an opportunity to make a connection, or to make a friend. I try very hard not to burn bridges, and I always examine job opportunities when they come to me. You read that right. Look, things happen, things change, and things can go bad. If you haven’t kept up your networking simply because the economy sucks and the job market stinks, you’ve been doing yourself a huge disservice. I’ll say just two words: Kodak and Dewey. It sounds like a bad horror film ad but “no one is safe.”

When I started practicing law, the paradigm of one job for one career was already long gone. Most commercial lawyers today engage in a sort of pinball training, bouncing from one gig to the next, and picking up whatever knowledge they can before settling into a position with some semblance of permanence. I am very fortunate to have landed here, but even so, I am a much better in-house counsel now than when I started.

Let’s say that it takes a year to two to become fully capable of handling the job you have. If you have been practicing more than ten years, as I have, that’s around five or six years of hard core ability. I am not referencing simple knowledge of the rule against perpetuities, but the ability to use the RAP like Ginger Rogers — backwards and in heels. But, that’s the actual practice of law, and networking experience should only get better by the year. So, I have about twice as much experience networking as I do practicing. And so should you….

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Moonlighting: What Is It Like To Do Social Media Work As A Lawyer?

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I had mentioned a while ago in my very first ATL post that some of my work involves marketing. Well, some of that marketing involves social media. As the main social media lawyer for my business unit, I work with our strategic teams to figure out how to make the best use of social media technologies (e.g., Facebook, Youtube, blogs, smartphone apps, etc.). All within 140 characters at a time.

What’s it like? As lawyerly work goes, it’s fast-paced and feels kind of risky and cutting-edge. Kind of like Mission Impossible. You know, like if the movie had a lawyer character whose job it was to make sure that the Tom Cruise character signed a waiver every time he got a pack of explosive chewing gum. Really, even non-lawyers think this social media lawyering work is cool. Granted, the non-lawyers I’m talking about are sixty-year-old gamers who live at home with their mothers. But still!

There isn’t really a standalone body of “social media law,” so a lawyer who covers this area ends up being a sort of jack of few trades. Instead, law in social media involves work which falls into the following basic categories….

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Village Voice GC Stands Up for Everyone’s Favorite Online Prostitution Ads

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If you’ve ever wandered over to Backpage.com and spent a few minutes reviewing the classified ads there, you probably realized that you had just discovered the seedy underbelly of the internet. Rife with ads for adult services — which is arguably just an elegant way of saying prostitution — the website, owned by Village Voice Media, has come under fire for its association with human trafficking.

Leave it to the company’s general counsel, Elizabeth McDougall, to take a stand for these scandalous online ads. After all, it’s great business! Backpage reportedly has a 70% market share for prostitution ads in the United States, generating millions in revenue.

This week, McDougall is taking additional heat from state attorneys general for her statements in an off-color op-ed column published in the Seattle Times. What could she have said that was so controversial?

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Inside Straight: On EUSLAs, Depositions, And Trials

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I got caught.

In a column last week, I criticized a brief for using the alphabetical short form “EUSLA” to signify “end user software license agreement.” Depending on the circumstances, I suggested, one might shorten the name of that contract to “agreement,” “license agreement,” or “software license agreement,” but “EUSLA” just doesn’t work — it’s meaningless alphabet soup that doesn’t help the reader of a brief.

As I said, I got caught: The lawyer who had drafted the brief read my column, cleverly figured out who I was criticizing, and called to take issue with me. (Serves me right for using real-world examples in this forum, I suppose.)

“You’re wrong, Mark,” my outside counsel said. “We called that contract an ‘EUSLA’ in all of the depositions in the case. When we quoted deposition transcripts in the summary judgment brief, those quotations called the contract an ‘EUSLA.’ We would have confused things if we called the contract an ‘EUSLA’ in the deposition excerpts and a ‘software license agreement’ in the rest of the brief. ‘EUSLA’ was the right choice.”

This conversation illustrates, first, why you shouldn’t quarrel with me while I have this nifty megaphone at Above the Law and you’ve got bupkis; I can’t possibly lose. And the conversation illustrates, second, the meaning of “digging yourself into an even deeper hole.” “EUSLA” is the wrong short-form in a brief, and your earlier mistakes don’t justify your later one . . .

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House Rules: Collegiality

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If there was ever a place where your self-esteem could be crushed just by stepping into an airport, Los Angeles is it. Being a New Yorker, I had the high-minded misconception that New York was the mecca of beautiful people, especially in summer. Wrong. I’ll end this tangent with the statement that I saw more perfectly tanned, toned, muscular, and ridiculously in shape people in the 15 minutes it took me to walk to baggage claim in LAX, than I have in my entire time in the Big Apple.

I was in L.A. to present at ACC’s Corporate Counsel University (“CCU”). CCU is a two-day nuts to bolt immersion program for folks who are new to in-house positions. It’s relatively small compared with the Annual Meeting, 200 or so attendees, but I have enjoyed presenting at this conference more than any other, because I can so readily identify with being new to in-house and feeling overwhelmed about how much I did not know….

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What’s Been Happening at Facebook Since the IPO?

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Facebook went public less than a week ago. But, not unexpectedly, a lot has happened in the few days since. As with many highly anticipated events (e.g., the Star Wars reboot and Barack Obama’s presidency) a lot of the reaction to Facebook’s IPO has been negative and filled with disappointment.

We’ve already got shareholder lawsuits against Facebook and the NASDAQ stock exchange, a privacy lawsuit settlement, and questions about how the IPO may have revealed broader problems about the way the system works. On the upside, the company’s GC, Ted Ullyot, has been making headlines in a more positive way, which is to say the dude is making mad bank for someone working in-house.

Let’s dig in….

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Inside Straight: On Crossing The In-House Rubicon And Law Firm Stupidity

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I had a cup of coffee last week with an old friend who happens to be a legal recruiter.

“Are you going to try to pry me out of my job?” I asked. “That’ll be a pretty tough sell.”

“I couldn’t place you if I tried,” he said.

“Excuse me?”

“You crossed that Rubicon two years ago. I do searches only for law firms, and they don’t hire in-house lawyers. You’re no good to me anymore.”

“Excuse me?”

“Law firms buy books of business. Not only that — they buy only past books of business. Nobody buys a story — a promise of future work — these days. Firms buy only your past successes. That’s often incredibly stupid, but it’s what they do.”

The guy had my attention: First, I’m no longer a hot commodity; somehow, that annoyed me, even though I’m not looking to sell myself these days. Second, law firms are stupid about lateral hiring; this was a blog post waiting to happen . . .

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Morning Docket: 05.21.12

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Mr. and Mrs. Zuckerberg

* With more allegations of misconduct revealed, the Canadian Judicial Council met to discuss Justice Lori Douglas’s sex scandal inquiry. Unlike her legs in her nude picture spread, this media circus will likely close in July. [Winnipeg Free Press]

* “I want to apologize. Obviously, mistakes were made.” Admitting you’ve got a problem is just the first step. Greenberg Traurig’s executive director apologized for the Biglaw firm’s apparent screw-ups in a Rothstein-related trial. [Miami Herald]

* Blind Chinese dissident Chen Guangcheng will be enrolling at NYU Law School on a fellowship. The administration is giving him a ritzy faculty apartment that comes complete with a kitchen full of Chinese food. He already knows how to eat like a law student. [New York Times]

* Facebook is being sued in an amended consolidated class-action complaint for $15B over privacy issues, but Mark Zuckerberg was too busy getting married to Priscilla Chan to let it bother him. [Bloomberg]

* “What [the f**k] comes next?” That’s what law school grads asked themselves when their commencement speakers tried to slap on a happy face and speak positively about the job market. [Connecticut Law Tribune]

* But perhaps future law school grads will be able to find jobs more easily thanks to class offerings geared toward in-house counsel lawyering skills. Keep on dreaming that impossible dream. [Washington Post]

* How does a small-time DUI attorney from California go from being an unknown to being a household name overnight? By filing a lawsuit filled with tawdry allegations against actor John Travolta. [Los Angeles Times]

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Non-Sequiturs: 05.18.12

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* This NYU Law professor’s apparent hypocrisy makes me want to chew on gravel. Seems like he has earned the digital tar and feathering he’s getting. [Inside the Law School Scam]

* So, Facebook went public today. The life of Facebook’s GC is about to change in big, big ways. [Corporate Counsel]

* The city of Boston filed a complaint against an attorney representing local firefighters for his allegedly offensive, sexist behavior at the negotiating table. How do ya like them misogynist apples? [Boston Globe]

* An allegedly intoxicated woman arrested for driving 90 miles an hour in a construction zone justified her speeding by saying she was late to her child’s birthday party. I imagine little Timmy was more upset that his mother not only missed the party but also spent his birthday in the slammer. [Legal Juice]

* Speaking of people you never want to see on the road, a Bay Area attorney was arrested today on suspicion of felony hit-and-run and manslaughter. Police say the attorney, who has two recent, unrelated speeding tickets, is suspected of striking and killing a bicyclist with his brand-new Mercedes. [San Francisco Chronicle]

* An argument as to why the United States, on a policy level, should become more “420 (and other illegal drug) friendly.” Most stoners might argue their case by saying, “Dude, just chill. Just chill bro.” But this is slightly more complex. [Volokh Conspiracy]

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