In-House Counsel

Inside Straight: Loving The Ignorance, Part II

When you're at a law firm, it's likely that you sell in part substantive expertise. When you move in-house, you're no longer selling anything. Will you lose your expertise?

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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….

Let me say at the outset that in-house jobs vary. If you’re a technology licensing lawyer and you move in-house to handle only technology licensing for a corporation, you may in fact improve your substantive skills. As you move up through the corporate legal ranks, however — or if you join the corporation at a fairly senior level — you’ll ultimately become a generalist.

That’s true for more in-house people than you’d think. The general counsel will scramble minute-by-minute from proxy statements to executive compensation to corporate secretarial duties to mergers and acquisitions. The GC may have been a fine M&A lawyer when she was in private practice; after five years in-house, those skills are likely to be less finely honed. (I’m not making judgments here; I’m stating facts. There’s much to be said for being a specialist; there’s much to be said for being a generalist; but those skill sets are different.)

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A head of litigation may have been a relatively specialized person in private practice, perhaps deeply knowledgeable about class action procedure or the defense of pharmaceutical product liability cases. Heck, that head of litigation may have blogged daily about drug and device cases and written a book (affiliate link) about defending those cases. That would be a heckuva guy, don’t you think?

But you move in-house and suddenly you’re handling a vast range of litigation, ranging from employment matters to real estate disputes to bankruptcy preferences to claims for negligence or statutory violations. By moving out of a single substantive space, you’re giving up the chance to maintain your specialized knowledge.

And it’s worse than that: Outside counsel will be researching the law, poring over the cases, and arguing the motions and appeals in your employment cases. You will have “graduated” from handling those tasks to the greater — or, at a minimum, different — glories of selecting outside counsel, negotiating fee arrangements, keeping people in assorted business units comfortable that their matters are being tended to, and ensuring that the folks in finance are never startled to learn at the last minute about a proposed settlement or adverse judgment. That doesn’t leave much time for reading new cases as they come down and otherwise monitoring a particular field of law.

What are the implications of that loss of specialized knowledge?

First, on any particular topic, you will no longer be the best informed person in the room. Specialists know stuff; generalists do not.

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Second, if you’re foolish enough to speak publicly about legal issues — perhaps on a widely read blog — you’ll choose to steer clear of substantive matters. Care to write about Sarbanes Oxley or Dodd Frank? As an in-house lawyer, you’re likely to know the basic requirements of those laws and the general parameters of what they require. As soon as you move to any particular subtopic, however, the outside lawyers who specialize in that particular issue — and who monitor it daily and advise many companies about that specific nuance — will be way ahead of you. A generalist shouldn’t pretend to be a specialist.

Third, you may miss actually knowing things. It’s a comforting feeling to know stuff, and it’s disconcerting to be adrift at sea.

Fourth, if you were ever to return to law firm life, you’d have to re-learn your old specialty or acquire a new one. Impressive “deal lists” and “case lists” are not mere decorations; they do, in fact, give clients a sense of what you know. It’s unlikely that a future client would hire a partner at a law firm who was widely knowledgeable about how corporate law departments operate, but no longer possessed current knowledge of, say, M&A practice.

That last point prompts two thoughts: First, how do folks fare when they move to law firms after an extended period of in-house practice? The in-house lawyers likely have contacts at corporations, business people who respect them, and a wide-ranging knowledge of corporate legal affairs. But the in-house lawyers were also probably forced to abandon the specialized knowledge that can help partners at firms make rain. I’ll be curious to hear from knowledgeable readers about how former senior in-house lawyers have fared when they chose (or were forced by, say, an acquisition) to return to law firm hunting grounds. (Note to my colleagues: I’m not thinking of bailing out on you guys. I love you. I’m just wondering aloud.)

On the other hand, perhaps the concern about losing expertise is simply howling at the moon. Once upon a time, I knew an awful lot about the reviewability of federal trial court remand orders; by the early 1990s, that knowledge was gone. At other times in my life, I knew the intricacies of harvesting timber for a sustained yield, the nuances of corporate standing under the Dealers Day in Court Act, and the operation of the “innocent decision-maker exception” to corporate complicity claims. Gone; gone; all gone. Perhaps for those of us who have chosen not to specialize in a particular field of law, life is just a series of learnings and forgettings, and all one can do is to enjoy the journey without regretting the ephemeral nature of knowledge.

Mark Herrmann is the Vice President and Chief Counsel – Litigation at Aon, the world’s leading provider of risk management services, insurance and reinsurance brokerage, and human capital and management consulting. He is the author of The Curmudgeon’s Guide to Practicing Law (affiliate link). You can reach him by email at inhouse@abovethelaw.com.

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