In-House Counsel

Respect, Request, And Reiteration

Corporate law departments are starting to get the respect they deserve.

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Comedian Rodney Dangerfield (Google him) always claimed that he never got any respect. Since the establishment of in-house legal departments, the same was said about them. Comments included statements like “a place where attorneys couldn’t make it in Biglaw,” “second-rate or third-rate lawyers in the department,”  “9 to 5 lawyers,” and other derisive remarks. Now, finally, with apologies to Mr. Dangerfield, corporate law departments are starting to get the respect they deserve.

Better late than never, I suppose, but outside firms don’t really get what in-house counsel do and unless they decide to go in-house, they never will. There are certain skills that in-housers need that outside counsel don’t necessarily have: the ability to switch gears on a moment’s notice depending upon the crisis du jour or even the crisis of the hour, knowledge that is wide but not necessarily deep aka what I call “saucer knowledge,” the ability to spot issues and figure out the best way to handle while spinning a dozen plates in the air, clients waiting to see you, phone calls to be returned as the client often lurches from one crisis to another. Just another normal day in house, with emails yet to be answered within the 30-second time limit that some clients demand.

One author suggests that rather than joining in the great resignation, now might well be the time for the great negotiation, that is, staying put where you are but negotiating better terms than what you currently have. Since lawyers are good negotiators, at least are purported to be, what better way to practice those skills than for your own benefit?

Right now, given all that is going around, you may have more power than you think, and starting conversations with your boss may make sense. You don’t want to blow up the relationship if you care at all about staying put, but there’s nothing wrong in discussing what you might like to see changed: learning about a different practice area, more remote work, trading hours for more time to do what you want to do. If ever there was a time when there is receptivity to such discussions, now is the time. (Of course, you may not want to have such conversations if there’s a possibility that any anticipated bonus could be jeopardized by those talks. Just like everything in practice, timing is everything.)

Incivility just doesn’t seem to go away among us. A recent report from a California Civility Task Force reinforces that incivility is still alive and well, even after the 2014 change to the attorney’s oath that requires striving to be civil, that is to conduct oneself with “dignity, courtesy and integrity.” The task force has made four proposals to improve civility.

1. Require one hour of MCLE devoted to civility training, included in the total number of MCLE hours currently required. Approved civility MCLE programs should highlight the link between bias and incivility and urge lawyers to eliminate bias-driven incivility.

2. Provide training to judges on the need to both curtail incivility and model civility, both inside and outside the courtroom, explaining the tools available to them to do so.

3. Enact meaningful changes to State Bar disciplinary rules, prohibiting repeated incivility and clarifying that civility is not inconsistent with zealous representation; and

4. Require all lawyers, not just those who took the oath after the 2014 rule change, to affirm or reaffirm during the annual license renewal process that: “As an officer of the court, I will strive to conduct myself at all times with dignity, courtesy and integrity.”

Here’s my pet peeve: the language “will strive.” It’s wishy-washy. Just like there’s no crying in baseball (Thank you Tom Hanks, in the movie “A League of Their Own”), there should not be any striving. Striving means to devote great energy or effort. Phooey. You either treat counsel with dignity, courtesy, and integrity or you don’t. Half measures don’t work. What if opposing counsel is a jerk? Does that give you permission to be a jerk as well? Is this like “… but he started it?” Remember when we used that excuse as kids? How far did it get it with the parents?

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The way to start enforcing civility lies with the courts. Judges need to be willing to bring the sanctions hammer down on those counsel. Penny-ante sanctions don’t get attention. Sometimes the only way to change behavior is through sanctions, that the uncivil conduct will not be glossed over or excused. If civility needs to be a pocketbook issue for lawyers for at least a while, then that’s OK. The only way that some peeps get the message is when they must write a check and/or report the amount of sanctions to the state bar and/or their malpractice carrier. Sometimes, a short leash, or even a choker leash is the only way to get attention. Why are so many courts so reluctant to use the power they have? The adage that actions speak louder than words applies here.

The task force’s very existence shows that not much has changed in the seven-plus years since the attorney’s oath added the “striving” for civility language. I wonder if anything will now change. Place your bets.

Jill Switzer has been an active member of the State Bar of California for over 40 years. She remembers practicing law in a kinder, gentler time. She’s had a diverse legal career, including stints as a deputy district attorney, a solo practice, and several senior in-house gigs. She now mediates full-time, which gives her the opportunity to see dinosaurs, millennials, and those in-between interact — it’s not always civil. You can reach her by email at oldladylawyer@gmail.com.

 

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