'I’ll Defer To Legal On This One'

As in-house counsel, you may be stepping in front of more buses than you'd previously thought.

As someone who started their career in politics, I am no stranger to being thrown under the bus.

Like any good former staffer for an elected official will tell you, accepting responsibility for an issue that was not your fault or beyond your job responsibilities is part of the job. In tense meetings with stakeholders or constituents, your job is to protect the elected official by readily accepting blame for whatever the issue du jour may be.

And while this was perfectly acceptable behavior to me as a newly minted attorney in my early twenties, I can honestly say I wasn’t sad to leave this part of the job behind when I left politics and went in-house. I couldn’t wait for the day when I no longer had to take the arrows for someone else’s missteps or inaction.

Or so I thought that’s how life outside of politics might go.

Although it was many years ago, I will never forget one of the first meetings of import I was in as in-house counsel. A newly promulgated federal rule added additional reporting requirements on hospitals and a member of our leadership team wanted to know the impact to our hospital and our proposed path forward.

While the exact details of the rule now escape me, in essence, it boiled down to a simple business operations decision point. Either our hospital would need to hire several new compliance staff members at a cost of a few hundred thousand dollars a year, or we could opt to roll the proverbial dice and, in the in the off chance we were audited, our financial risk would be comparable.

After stumbling through my presentation on the rule and its associated risks, I sat down relieved my role in the meeting was done and I could wait for the executive to make the decision on next steps.

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But rather than making a definitive decision in the boardroom as Hollywood had trained me to believe would happen, he casually remarked, that “he would defer to legal” on the next steps.

Defer to legal?!?

I was puzzled and caught off guard to say that least. I thought this executive was paid to make the hard decisions and live with whatever their consequences may be!

And then I remembered my time in politics — same story, different bus driver.

As the only person in the room hired to think about risk, I immediately recommended we hire the needed compliance staff and breathed a sigh of relief when the room agreed.

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Since that first in-house meeting, I have been in countless others where an executive casually defers to legal on the appropriate next steps. And in some instances, especially when large decisions are on the line, I have found that I am stepping in front of more buses than when I worked in politics.

And while I thought I left politics to avoid this sort of behavior, I can’t say that it bothers me as much as it once did. After all, being able to recommend the safest legal course of action isn’t necessarily a bad thing as in-house counsel.

So to those who may find themselves in a similar position staring down the oncoming bus, just remember, you can always ask for forgiveness later for recommending an overly cautious course of action, but your respective company may never forgive you for failing to appropriately mitigate a known risk even if you saved them money up front.


Stephen R. Williams is in-house counsel with a multi-facility hospital network in the Midwest. His column focuses on a little talked about area of the in-house life, management. You can reach Stephen at stephenwilliamsjd@gmail.com.