In-House Counsel

Ex Post Facto... Not A Good Time For Edits

Never forget to expressly ask for the opportunity to review your legal team’s work prior to its dissemination.

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I thought I had clearly articulated the research assignment to one of my junior associates.

Review a newly promulgated federal regulation. Audit our current business practice governed by the new regulation to ensure our compliance. And author a memo detailing their work affirming our company’s compliance, assuming we were in compliance, so we could file away for future use if ever needed.

Two weeks later, the same associate burst into my office with a copy of his memo and a grim look on his face. Before he could sit down, he bluntly said our current business practice was in blatant violation of the new regulation and we must correct it immediately.

I was taken aback.

I thought I had assigned the associate a fairly straightforward and perfunctory task. In fact, prior to assigning it to one of our team’s junior associates, I conducted my own preliminary research into the regulation and our current practices and was certain we were in compliance.

What I needed from the associate was a proverbial rubber legal stamp of approval I could file away if ever asked. I did not think I had handed him an assignment which could result in demands for widespread programmatic changes across our company. Yet here we sat.

After meeting with my associate and reviewing his memo, several honest mistakes in his approach began to emerge.

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However, my internal celebration quickly turned to angst after my colleague shared that he had taken the proactive step of distributing his memo to the impacted department heads so that they may begin to correct their errors. While his efforts to ensure prompt compliance were laudable, they left me in a difficult position. Either continue with his recommended, but unnecessary changes, or issue a reputation-staining mea culpa to those the associate had already contacted.

His recommended changes, while significant and not needed, were relatively easy to implement. Furthermore, it did not appear that implementing them would negatively impact our business operations. Staying the course was possible.

On the other hand, his recommendations were wrong, his memo and legal reasoning flawed. But in his defense, I never expressly demanded to see his memo prior to talking with impacted parties. To attempt to amend his memo ex post facto could harm the reputation of our in-house team.

Ultimately, our team opted to proceed with the associate’s recommended changes. His recommendations were thoughtful, they did not disrupt business practices, and arguably they brought us more inline with the intent of the regulation even if they were unnecessary.

To attempt to amend his memo and recommendations after the fact could have harmed the tenuous trust we had established with our non-legal colleagues and called into question any of our future recommendations.

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To those of you managing your own teams, continue to lean on them. Count on their legal reviews as you would your own. But never forget to expressly ask for the opportunity to review their work prior to its dissemination.

Because even though they may be possible, ex post facto edits are a difficult pill to swallow.

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.

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