I wrote about these contractual issues the week before Thanksgiving. I received so many emails that I thought it best to flesh these topics out a bit more. Also, some of these headings are from the anonymous “comments” section on this site, so I can’t attribute them (and I’ve also edited them for language).
1) “Real life example: Company A hired to refurbish shipping vessel owned by Company B. Contract obligated Company B to indemnify Company A fully, worded broadly enough and specifically enough to require indemnification for Company A’s own fault. Company A sets the boat on fire through clearly negligent actions and then tries to put it out with a garden hose. Fifth Circuit Court of Appeals tells Company B that yes, Company A was at fault; yes, you are out quite a bit for the value of the boat and the lost income, but you must eat it as you have to indemnify Company A for your own claim.”
Why on Earth someone would agree to indemnify a Customer for their own negligence is beyond me. I have been through this scenario many times, and I always inquire as to how I am expected to indemnify my Customer for its own negligence. In the B2B arena, indemnity should be limited (if possible) to third party claims against the potential indemnitee, at which point the indemnitor would take on the payment.
This raises another point: even if I indemnify you, who is going to defend you?
While practically every attorney is familiar with the market rate for Biglaw salaries, not as much is known about salaries for in-house lawyers. Unlike Biglaw’s lockstep salaries, in-house salaries vary widely depending on a broad range of factors such as industry, size of legal department, years of experience, etc. Additionally, since in-house salaries are often negotiable, in-house attorneys tend to avoid discussing their individualized pay with one another.
ALM Legal Intelligence has helped to demystify in-house salaries through its 2011 Law Department Compensation Benchmarking Survey. This comprehensive survey analyzed compensation data from 4,951 lawyers employed at 225 corporate law departments. The 2011 median salaries for various management and non-management law department positions are reported in the tables after the jump, along with their changes from 2010….
Here’s a puzzle for you. What decade am I discussing in the following paragraphs?
I’m doing something a little different here. The entire text of this column appears before the jump. I’ve hidden only the citations after the jump. Ponder while you read these paragraphs when the source materials supporting these words were written:
The excessive cost of legal services is not a function of the economy that will abate as the recession finally fades. In the words of one recent report, “Don’t fool yourselves that when the recession passes things will return to normal.” That report quoted the general counsel of a major financial institution as saying, “The way we are now is the way it is now, not a temporary situation . . . . [I]n the [decade omitted] we’re going to see straight hourly billing die.”
Surveys confirm the concerns about the high cost of legal services. For example, in a [year omitted] general counsel survey conducted by [the firm you know as PriceWaterhouseCoopers], a majority of the 350 respondents agreed that “legal fees have gotten out of control and are crippling businesses,” and pressure to reduce costs was a “major theme” of the survey responses. Surveys of corporate law departments conducted by Endispute, Inc. in [two years omitted] reveal that a third of the respondents faced actual cuts in their legal budgets and that, as the size of the legal departments increased, so too did the pressure to reduce legal costs. A [year omitted] Louis Harris survey of executives and legal officers of Fortune 500 service corporations reveals cost containment as a top priority for law departments, and a survey of major corporate clients in the United Kingdom demonstrates that this is now a worldwide issue.
The pressure to move away from standard billing, based on the billable hour, is likely to increase. Indeed, [name omitted], the recently appointed general counsel of [company name omitted], is leading an intense campaign to adopt alternative billing mechanisms. Her efforts have been broadly publicized and resulted in a highly visible panel at the [year omitted] ABA meeting.
In what years did these things occur? What decade are we discussing? And who the heck was the recently appointed general counsel of what company? Those citations and more after the jump….
Specialty bar associations can be great opportunities for in-house lawyers to grow their network and develop their careers. Unlike some mega bar associations, they tend to feel more intimate and collegial, even if their membership numbers are pretty large, because the members share a common interest.
A couple of weeks ago, I attended the NAPABA (National Asian Pacific American Bar Association) convention in Atlanta. This organization represents the interests of over 40,000 attorneys and about 65 local bar associations. And let me tell you, they had a lot going on at their annual gathering. And I don’t just mean the after-hours partying….
Suppose your firm has one incompetent partner, and our joint has the misfortune to be working with that person.
This guy consistently misses important issues. He sends us briefs that read (as did one draft I recently received): “In response to ALR’s motion to dismiss the OC, [plaintiff] added an allegation in the FAC that . . . .” We comment, over and over again (as we did recently), that briefs on our behalf must be written in English, not gibberish. Even if you’ve set up short forms, no reader sees “OC” and “FAC” and thinks “Original Complaint” and “First Amended Complaint.” Use words, not alphabet soup.
To no avail.
We suggest that the partner include on the litigation team a gifted writer (because we’re too nice to suggest that the partner include on the litigation team “a lawyer who’s worth a damn”). But nothing ever changes; the partner never hears us. Confronted with an avalanche of criticism and suggestions, no law firm partner has ever said to us, “Why, thank you. Now that you mention it, I realize that I am in fact inept. To better serve your legal needs, I’ll replace myself with a real lawyer.”
No, no, no. Instead, the partner continues to send us bad briefs, making the same mistakes over and over, but seemingly thinking that we may not care the next time around. It’s Einstein’s definition of insanity: “Doing the same thing over and over again and expecting different results.”
Up to that point, the fault is the partner’s. But then I personally make two mistakes….
Caveat: I did not write the following dialogue. It is from the “comments” section of one of my columns where I mentioned I’d be writing about HIPAA and GLBA. Unfortunately, I cannot attribute the comments to the persons who wrote them, as they are anonymous; however they are quite apropos of today’s subject:
1) “I wish vendors would get it into their heads that indemnity for being sued on a confidentiality basis doesn’t cut it for financial institutions and other customers/clients that have affirmative obligations without being sued in the event of a breach of confidentiality.”
2) “I wish financial institution customers would get it into their heads that the ‘customer information’ they’re obligated to protect is not the sort of thing they would ever disclose to the vast majority of their vendors, and stop using their ‘affirmative obligations’ as a tool to cram unnecessarily restrictive confidentiality terms down the throats of vendors.”
Perfect. Those two comments capture the schism between vendors and customers when dealing with private financial or personal confidential information….
Popping open that box is the only compensation I’ll ever get for having written that book, because I’m no longer in the private practice of law (so I can no longer use a publication to try to attract clients) and I negotiated an advance payment to my firm (back when I was a partner at Jones Day) that basically guarantees I’ll never get any royalties from this project. That leaves as compensation only the joy of holding the book in my hands for the first time and the satisfaction of knowing that a few people will find the treatise to be worthwhile.
I’ve now held the book in my hands, so that little thrill is behind me. But the treatise is also worthwhile, and I’ll prove it….
Are your in-house working hours recently rivaling the billable hours you thought you had permanently discarded? Is your workload getting way too heavy — i.e., it’s really getting difficult to watch Glee on a timely basis? Do you find yourself working on pretty much the same form of contract over and over and over and over and over and over and over, ad infinitum?
It may be time to take a break and evaluate the problem of Low-Value Work.
What’s Low-Value Work? It’s work that has three main characteristics….
A close friend’s father passed away. He was 71, a retired school teacher and a great man. A man dying at 71 used to seem far off in my comprehension of time, but as I get older, it’s really not. I learned of his death the day after ATL had posted a story about a Morgan Lewis partner who died at his desk. That same night, Joe Paterno was fired, rightfully so, and part of a campus rioted.
All three men leave tremendous legacies in their own way. They worked diligently at their chosen careers, were long-time employees, and outwardly, at least, left behind loving families, students, mentees, and friends. (I know, Paterno isn’t dead, but he is finished). I was scanning through the comments following that ATL story, and was quite frankly amazed by how “gentle” the majority of the opinions were. Something about one of “us” dying at our desks just wasn’t worthy of snark. It was worthy of reflection….
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 seven years. You can reach them by email: firstname.lastname@example.org.
It’s that time of year again when JDs are starting to apply for 2L summer jobs and 2L summers are deciding which practice area to focus on.
For those JDs with an interest in potentially lateraling to or transferring to Asia in the future, please feel free to reach out to Kinney for advice on firm choices, interviewing and practice choices, relating to future marketability in Asia, or for a general discussion on your particular Asia markets of interest. This is of course a free of cost service for those who some years in the future may be our future industry contacts or perhaps even clients.
For some years now Kinney’s Asia head, Evan Jowers, has been formally advising Harvard Law students with such questions, as the Asia expert in Harvard Law’s “Ask The Experts Market Program” each summer and fall, with podcasts and scheduled phone calls. This has been an enjoyable and productive experience for all involved.
If you are considering a virtual law practice, you know that many of today’s solo firms started that way. But why are established, multi-attorney law firms going virtual?
Many small firms are successfully moving part—or even all—of their practice to a virtual setting. This even includes multi-jurisdictional practice spanning several states and practice areas, although solo and small partnerships are still the largest adopters of virtual law.
Can you do the same? The new article Mobile in Practice, Virtual by Design from author Jared Correia, Esq., explores how mobile technology bring real-life benefits to a small law firm. Read this new article—the next in Thomson Reuters’ Independent Thinking series for small firms—to explore how a mobile practice:
Reduces malpractice risk
Enables you to gather the best attorneys to fit the firm, regardless of each person’s geographic location
Leverages mobile devices and cloud technology to enable on-the-spot client and prospect communication
Transitioning in-house is something many (if not most) firm lawyers find themselves considering at some point. For many, it’s the first step in their career that isn’t simply a function of picking the best option available based on a ranking system.
Unknown territory feels high-risk, and can have the effect of steering many of us towards the well-greased channels into large, established companies.
For those who may be open to something more entrepreneurial, there is far less information available. No recruiter is calling every week with offers and details.
In sponsorship with Betterment, ATL and David Lat will moderate a panel about life in-house and we’ll hear from GCs at Birchbox, Gawker Media, Squarespace, Bonobos, and Betterment. Drinks, snacks, networking, and a great time guaranteed. Invite your colleagues, but RSVP fast, as space is limited.