In-house counseling

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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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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Goodie Two-Shoes

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Ed. note: This post is by Will Meyerhofer, a former Sullivan & Cromwell attorney turned psychotherapist. He holds degrees from Harvard, NYU Law, and The Hunter College School of Social Work, and he blogs at The People’s Therapist. His new book, Way Worse Than Being A Dentist, is available on Amazon, as is his previous book, Life is a Brief Opportunity for Joy (affiliate links).

You’re different. You disdain the crass blandishments of Biglaw. You have a soul. Let the giant firms seduce your naïve classmates with their shameless wheedling. You’re made of sterner stuff.

Your ultimate goal? Something better. A place where you might actually do good. Few lawyers receive that opportunity. Many, exposed to goodness, would burst into flames.

That’s why you’re taking the high road, escaping the pervasive cynicism and greed. You’ve got your sights set on a not-for-profit institution, dedicated to the promise of a better tomorrow.

Will it work? Can a lawyer escape pervasive cynicism and greed?

Seems unlikely….

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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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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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House Rules: Leverage Abuse

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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….

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The ‘It Gets Worse’ Project

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Ed. note: This post is by Will Meyerhofer, a former Sullivan & Cromwell attorney turned psychotherapist. He holds degrees from Harvard, NYU Law, and The Hunter College School of Social Work, and he blogs at The People’s Therapist. His new book, Way Worse Than Being A Dentist, is available on Amazon, as is his previous book, Life is a Brief Opportunity for Joy (affiliate links).

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….

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Inside Straight: ‘Litigation Highlights!’ And Law Firm ‘Annual Reviews’

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An in-house lawyer receives an email from a law firm with the subject line, “Litigation Highlights!” Does she pop it open?

Probably not; it sounds like an advertisement.

Is there a subject line that stands a better chance of success?

Yes: Something that specifically identifies a subject that might matter to the recipient. Maybe: “The Constitutionality of ‘ObamaCare’: A Preview of the Arguments.”

The recipient might or might not care about that subject, but, if she does care, at least she knows to open the email.

My not-so-hypothetical “subject” line — “Litigation Highlights!” — is off-putting enough, but, if you made the mistake of opening that email, the substance could be even worse….

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Moonlighting: If You Think Domestic Pow-Wows Are Challenging…

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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….

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Inside Straight: Loving The Ignorance, Part II

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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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