In-House Counsel

House Rules: Privileged Correspondence

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My work life revolves around email. Because of the size of our company, and the geographical locations of my clients, I spend a majority of my day on email. Like many of you, I have a disclaimer below my signature stating that the correspondence is attorney-client privileged, and so on. But is it really? Many times, the answer is no. I know enough to use the disclaimer in an abundance of caution, but my clients often have no idea whether what they send across email is indeed privileged.

Like Susan Moon, I am often referred to as “council.” That’s fine, it doesn’t really bother me, and is rather innocuous. Sometimes however, a client will take it upon themselves to write in bold, ATTORNEY-CLIENT PRIVILEGED, within the subject line. And that does bother me. Folks with just enough legal knowledge to be dangerous, are often just that — dangerous. Now, the email may indeed be seeking my advice, or concern a legal matter within that client’s region, but the client should not assume that to be the case. The misunderstanding of the privilege could lead to problems in the future, say, in a discovery period….

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Inside Straight: Creating A Unifying Mind

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For every matter that we handle, we need one “unifying mind.” We need one person at the helm; that person must either personally know everything that’s happening in the matter or, at a minimum, know where the knowledge lies. (Extraordinary cases may be beyond the capacity of a single unifying mind and may require two or more. But those situations are exceptional, and they pose challenges beyond what I’m thinking about today.)

The unifying mind might be found anywhere in the hierarchy, depending on the type of matter involved. At a law firm, the unifying mind can be a partner, if the matter is large and the partner a hands-on type. Or the unifying mind can be an associate charged with monitoring and tracking all events. But everyone on the team should know who’s at the helm, so everyone knows the person who should receive copies of correspondence, alerts about upcoming events, and reports about how things are going.

At an in-house law department, we, too, must have a unifying mind for every matter. In the litigation world, a corporation may have several line lawyers whose job is to supervise cases on a day-to-day basis. The line lawyer primarily responsible for overseeing a particular case should typically serve as the unifying mind for that matter. Outside counsel should communicate with that person, and everyone in-house should know that’s the lawyer to call if they need detailed information about a lawsuit.

That’s all fine in theory, but two things often screw this up in practice. What two things?

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Inside Straight: Doing Business In Corrupt Places

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Suppose you’re doing business in a country that is perceived as being corrupt. For example, Myanmar, North Korea, and Somalia take the bottom three slots in the 2010 Corruption Perceptions Index.

Okay, let me rephrase that: Suppose you’re doing business in a country where it’s actually lawful to do business, but the country is perceived as being corrupt. Cambodia or Zimbabwe might fit the bill. (On reflection, it strikes me that my own company may actually do business in those two places. If we do, then I, naturally, love the judicial systems in Cambodia and Zimbabwe. If my company is ever in court in one of those places, please don’t hold this column against us. It’s just that terribly unfair perception of corruption that gives you guys a bad name.)

How do you conduct business there?

Very carefully, of course.

As a matter of compliance, your company must implement policies that forbid payments that are customary in the corrupt place, but forbidden by U.S. law. And your company must enforce those policies, perhaps by having a regional group that approves third parties with whom you do business or otherwise strives to comply with the law.

But that’s the front end. What do you do at the back end, if you find yourself in a dispute in the corrupt place?

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House Rules: Fieldwork

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It is no secret that I work for a supply side corporation. While my position largely requires legal advice and support to the “field,” I am thankfully separated from sales by ethics and obligations to the company. I know from email correspondence that many of you also support sales in your companies. I have received several questions related to dealing with the conflict between assisting clients in meeting their, and the corporation’s, quarterly and annual revenue targets, and Legal’s ultimate obligation to the company.

In baser terms, the dichotomy may be viewed as attempting to rein in Mario Williams after a B-12 shot late in the fourth quarter….

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Inside Straight: An Open Letter To The University Of Chicago Law School

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Dear University of Chicago Law School Admissions Committee:

I write to advise you that you can remove my name from the waitlist for admission to the University of Chicago Law School.

I deduce that my application has posed an extraordinarily challenging decision for you. After all, I applied for admission in the fall of 1978, was placed on the wait list some time that winter, and am still awaiting your final decision. I certainly appreciate the effort that you have invested in considering my application during the intervening decades.

As you might imagine, this has not been an easy thirty years for me, either. Every day, through the changing seasons and changing seasons of my life, I have approached the mailbox with trepidation, thinking that I might finally experience the exhilaration of acceptance or the agony of rejection. But it was not to be; I never heard a word. I’ve decided it’s time to spare you the effort of further deliberation.

I’ve thought about you each fall and winter, as you’ve surely re-opened and dusted off my typewritten application and compared it to the new e-submissions that you probably receive today. How do my accomplishments from the late 1970s compare to the accomplishments of my current competitors? I’m certain, for example, that grade inflation has worked to my detriment, as my grades are stuck at the old levels and younger folks get higher grades with each passing year. It’s just not fair.

And what about external events?

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Moonlighting: You Know You Work In-House If…

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I thought it might be fun to try something different for this week’s post. A lot of people post top ten lists to give some semblance of organization to an otherwise random set of ideas, so I thought, “Well heck, we, too, can play at that game!” Thus, a top ten list was conceived for things that make us think, “Toto, we’re not in Biglaw anymore.”

That being said, You Know You Work In-House If….

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Inside Straight: When You Do Not Ask For A Better Draft

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I occasionally take advantage of my little megaphone here at Above the Law to vent about poor quality drafts. When I do, “commenters” or correspondents routinely suggest that I’m tilting at windmills: “If you receive a poor quality draft, send it back to the person who wrote it, and tell that person to make it better. There’s no reason why you, Mark, should be saddled with improving the thing.”

Wrong, wrong, and wrong again!

I’m absolutely saddled with improving the thing. It often makes no sense at all to return a bad draft to the author and ask for a better draft. In fact, I submit that there are only two situations in which it does make sense to ask the original author to improve a draft . . .

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House Rules: Data Security

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I had today’s column dealing with confidentiality provisions all set to go. However, given the Baylor Law School fiasco, I changed topics to another very contentious issue in business-to-business terms and conditions negotiations: data security. I will take some liberties with the factual scenario of the Baylor data release in order to make the issue more relevant to those of us in-house.

Let’s assume that instead of an employee of Baylor’s admissions office allegedly being responsible for the data release, it was an outside contractor who had been hired to perform data collection for Baylor. Let’s further assume that the contractor acted negligently in releasing the information. Finally, let’s assume that Baylor’s legal counsel vetted the Agreement and Statement of Work (“SOW”) between Baylor and the contractor, and included a data security provision. What should happen now that prospective students’ personal information, including LSAT scores and GPA, are in the public domain? I would begin by stanching the bleeding and assessing the damage….

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Inside Straight: Knowing That Law Wins

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Someone in the company is going rogue: The person proposes to do something brazenly illegal, or slightly illegal, or perfectly legal but sufficiently immoral that the conduct would turn any reasonable person’s stomach. The rogue is not listening to logic. The person is ignoring everything that your local in-house lawyer is saying.

When the local lawyer calls the headquarters law department for help, these are the words that headquarters must be able to speak: “Local lawyer, you win. This is not a close call; we should not be doing this. In this situation, I guarantee you that you hold the trump card. Who do you need to make a call to solve your problem? The general counsel? The chief financial officer? The CEO? Someone else? We will cause that call to be made in a heartbeat. What do you need?”

Is that what people mean when they talk about “tone at the top”?

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Moonlighting: If You Think Domestic Pow-Wows Are Challenging (Part II)

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In last week’s installment of Moonlighting, we looked into the challenges of just planning a global meeting. This post will continue the theme by examining particular practical issues that arise during global meetings.

The first few minutes of most meetings are passed waiting for people to join, whether in person or on a call. Those who’ve joined early on typically engage in casual social banter to avoid the awkward silence. But on a global call, you need to be careful as nothing says “you’re not an American company” like banter that leads with, “Say, how ‘bout those Knicks?”

Then what should you talk about — world events? Perhaps, assuming you can talk about them without offending anyone (avoid discussing the madness in Western Europe). Safer, but admittedly boring, topics are weather and vacations. And of course, be wary throughout the call of using American business jargon like “get our ducks in a row,” “circle back,” etc. These are best accompanied by a clear explanation of what the idioms mean: “As we say in America, let’s circle back when we have all our ducks in a row. This just means that we’ll give each other a heads up when we’ve got our house in order.” Wait… not that….

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