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….
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….
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….
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….
By the time I made the switch to in-house work, I was burned out on litigating. Some of my friends and colleagues live for the fight, or as Wallerstein recently said, “have a fire in their belly.” In my case, I just couldn’t draft yet another motion to compel, interrogatory, etc. I had been doing it so long that it had become mundane. Appearing in court was always a kick, and depositions could be entertaining, but the day to day fun had dissipated.
Due to the economy and firm billing practices, I found myself at times resorting to noting “.1s” on my time sheets. So, when my bio says I don’t miss litigation, I really don’t. And what I don’t miss most of all is the bluster of the powerful down to the less leveraged.
In litigation, bluster can begin as soon as the adversary reads your bio and decides that you are not quite a peer. This inappropriate elitism only worsens when one side gains the upper hand for whatever reason; the bluster ends, and the bludgeoning begins….
A visit to my office has evolved into something akin to the road to Lourdes. Pilgrims arrive red-eyed and defeated, faces etched with misery, searching for a way out of a trap.
The standard story is some variant of the following: You are either out of work or loathe your work. You have $180k in loans. You have either no income or an impermanent income paid to you in exchange for any joy life might offer. You see no hope.
Let me spell out the critical element here: You are one hundred and eighty thousand dollars in debt.
Just to fully drive the point home: that’s bankruptcy-proof debt.
You’ve yelled at your parents, but it’s not really their fault. You’ve wept and wailed and gotten drunk and stoned and consumed a scrip of Xanax. You’ve tried sleeping and pretending you don’t have to wake up.
Then comes the pilgrimage. Perhaps I can heal with a laying on of hands….
Companies are doing more business internationally and dragging their lawyers along with them. As you can imagine, doing international work has obvious challenges — foreign law, culture and language, time zone issues, cardboard that airlines call “food,” etc. These next couple of Moonlighting posts are going to delve into some of the nitty gritty of practicing in a global arena by examining one very basic, but essential, part of the in-house practice that I’ve discussed before — a meeting.
But first, a clarification of terms. People often use the terms “international” and “global” interchangeably. However, in-house lawyers who practice in these areas may disagree. Assuming the terms are used by Americans, an “international” U.S. business refers to a business that is headquartered in the United States and operates individual businesses in other countries that focus on the market in each of those countries. In this structure, each business in each country focuses on its own business and does not often coordinate with the others — communicating primarily with the U.S. headquarters in a hub and spoke kind of structure.
On the other hand, a “global” U.S. business is one that’s headquartered in the United States and builds businesses in other countries that focus on how the market in those countries could support cross-border business growth. In the global model, businesses in the other countries often work directly with each other. For the sake of simplicity though, I’ll use the term “global” for the rest of this post to refer to both international and global work. Now that you’re sufficiently confused, we can move on….
I wrote last week about how an in-house lawyer overwhelmed by volume should stop worrying and learn to love the ignorance. Talking about ignorance plays to my strength, so I’m choosing here to expand the discussion.
When you’re at a law firm, it’s likely that you sell in part substantive expertise. You’ve assembled a “deal list” to prove that you know more about technology licensing than any other person on earth, or your “case list” shows that you’re better able to handle 10b-5 class actions than all those other pretenders. You may be selling certain things beyond substantive expertise — experience, relationships, presence — but substantive knowledge is part of the package.
When you move in-house, you’re no longer selling anything, because your poor corporate client is doomed to work with you, no matter what your state of ignorance. You’ll no longer polish your deal or case lists, because no one cares anymore.
But it’s worse than that: You won’t simply stop polishing your deal and case lists. You’re actually likely to lose some chunk of your substantive expertise….
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Ed. note: The Asia Chronicles column is authored by Kinney Recruiting. Kinney has made more placements of U.S. associates, counsels and partners in Asia than any other recruiting firm in each of the past six years. You can reach them by email: firstname.lastname@example.org.
Deal flow has clearly picked recently up for most US associates, counsels and partners in Hong Kong/China and Singapore. We are on the phone with a lot of these folks on a daily basis, many of whom we have known for years. Further, the head of our Asia team, Evan Jowers, and Kinney’s founder and president, Robert Kinney, frequently meet in person with leading US partners in Asia to assess their needs and keep on top of the inside scoop at as many firms as possible. The need for legal recruiting help in Asia from experienced recruiters appears to be live and well. In March, Evan and Robert were in Beijing at such meetings, in April, Evan was in Hong Kong, and for half of June Evan will be in Shanghai and Hong Kong. Thus its pretty easy for us to tell when there has been an across-the-market pick up in capital markets and corporate work.
On an average day in Asia when Evan and Robert visit firms, they typically have 5 to 9 meetings a day, mostly with US partners in the market. The reason they have these meetings is not simply because Kinney makes a lot of US attorney placements in Asia and that a particular firm may have openings; instead these are just visits with friends. After years of working together as business partners, the folks at Kinney are actually these peoples’ friends. The firms Kinney work closely with in Asia (which is just about every law firm – call us if you want to know the one firm in the world we will never place anyone with again, ever, and why) look forward to the visits, or at least act like they do. After seven years in the market, many of the client partners are former associate candidates. Also, these US partners see Kinney as a very good source of market information as well, because they know how deep their contacts are in the market and how frequently they are speaking to counterparts at peer firms.
In a land that is right here and in a time that is right now, a technology has arisen so powerful that it can replace basic human document review. Is it time to bow down before our new robot overlords?
First, here’s a little story about me: my life in the legal world began as a paralegal. My first case was a GIANT patent infringement case that was already six years old and had involved as many as five companies, multiple US courts, the ITC and an international standards committee. I knew nothing about any of this.
On my first day, my supervisor (a paralegal with at least eight other cases driving her crazy) sat me down in front of a Concordance database with a 100,000+ patents and patent file histories. “Code these,” she said. I learned that “coding”, for the purposes of this exercise, meant manually typing the inventor’s name, the title of the patent, the assignee, the file date, and other objective data for each document. I worked on that project – and only that project – for at least the first six months of my job. After a week or so, time began to blur.
What I know, in retrospect and with absolutely certainty, is that as time began to blur, so did my judgment. So did my attention to detail. If you could tell me that I did not make at least one mistake a day – one inconsistent spelling, one reversed day and month, one incorrectly spaced title – I frankly would need to see your evidence. I would not believe it. The human mind is trainable but it is not a machine.
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