Lexpert magazine features articles and columns on developments in legal practice management, deals and lawsuits of interest in Canada, the law and business issues of interest to legal professionals and businesses that purchase legal services.
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LEXPERT MAGAZINE | MARCH/APRIL 2018 61 | IN-HOUSE ADVISOR: SOLO IN-HOUSE COUNSEL | lawyers choosing career paths outside the partner track — not just as a fallback posi- tion but as a first preference. "Careers in-house are much more varied now than they used to be," partly because companies are starting to build larger inter- nal legal teams to handle a wider variety of issues, he says. Ties that bind Burgoyne says he was recently asked by two client firms to recommend lawyers for in-house positions. In one case, he sug- gested an Osler alumnus and in the other he didn't. Burr says major law firms have plenty of experienced, talented associates who would welcome an in-house opportunity, and an alumna who moves to an in-house position can improve communications between the client company and the outside law firm. Alumni placements, he says, also help ce- ment the relationship between his firm and client companies. But he says the first prior- ity has to be ensuring the client gets a top- notch lawyer, with extensive experience in the areas most relevant to the business. Burr says he starts by asking the client where the company feels it has gaps in its everyday legal oversight, in order to get a clear picture of the type of legal know-how they need. In smaller companies, he says, the personality of the CEO may also be a deciding factor in his recommendation for an in-house position. "A brash, impulsive CEO may need a voice of reason," but he says that could also prove to be an oil-and-water mismatch. "e best choice might be someone who can identify risk and shut up." It's a judg- ment call that tests the outside firm's knowledge of its client. The long view Outside legal advisors agree that compa- nies seeking to hire their first in-house law- yer should, in most cases, take a long and wide perspective. Companies should con- sider both the professional and leadership potential of that critical first legal hire. Put simply — can the candidate be expected to become a general counsel capable of run- ning a legal department that expands with the company? "I think you want to hire the best per- son you can hire, within your ability to pay," Burgoyne says. "A company should be looking to hire someone who can grow [as a lawyer] and grow the role itself — but that's a generalization." A company with limited legal exposure may want a lawyer who sim- ply reviews contracts, he says. "You almost always want a future lead- er," Burr says, "someone who can later oversee three people or ten people, as the company grows." e exception might be a company in a highly regulated industry, "where what they really want might be a compliance officer. In those cases, they probably don't want somebody who's par- ticularly entrepreneurial." e ACC's Guide says a company may need its first in-house counsel to be "a leader, a manager or both." A manager will concentrate on the legal process, to ensure the right systems and procedures are in place to meet narrowly defined legal needs. A leader will advise the executive and board of directors to help ensure the company is focused on the right priorities, both legally and strategically. e ACC says a company hiring its first lawyer may be looking for an immediate or future gen- eral counsel who can handle both techni- cal and strategic responsibilities. When the company's first lawyer is fi- nally chosen, the ACC Guide says, he or she will likely face an array of misplaced ex- pectations, some of which will require de management. ese frequently include: re- quests for personal legal advice from highly placed people; a belief that the new lawyer should only be consulted on strictly legal issues and excluded from broader business planning; reluctance to seek legal advice in the belief it will unduly restrict business options; expectations of legal omniscience across all areas of law; and imagining that every conversation is protected by solicitor- client privilege. e Guide advises the company's first lawyer to, at the earliest opportunity, ar- range time to speak with key clients about what an in-house lawyer can and should do. e solo lawyer should explain that in-house counsel is confined to advising on company business; working with senior management to define the role of counsel; and he or she should meet with staff groups to explain who is and is not a corporate cli- ent. e Guide also suggests that in-house counsel should provide seminars to educate clients on legal requirements, such as docu- ment retention, not least of all to avoid be- ing perceived as a nag. Abominable No-Man Burr says the perception is fairly common within small, highly entrepreneurial com- panies that the new lawyer will be a No- man, or -woman, best avoided and thereby foreclosed from saying "no" to some cher- ished business idea. But he adds that, sooner or later, that expectation will be fulfilled when the in- house counsel is forced to frown on some business proposal and when that happens the lawyer needs to be prepared. "e busi- ness people just want to get the deal done and you're going to be the person who says 'no,' so you should have an alternative," he advises. e lawyer who can propose an- other means to the same or similar end will be more trusted and far more frequently consulted than the one who simply gives the legal "no" to a business opportunity. Burgoyne says avoiding or reducing legal risk "without saying, 'You can't do that,'" is vital to the success of every in-house lawyer, and especially the new, solo legal counsel. "You build credibility with operations peo- ple by finding a way to get the deal done," he says. is approach also leaves you bet- ter positioned at the end of your first year, when it comes time to justify your exis- tence — when you can, hopefully, point to risks avoided and projects enabled. "You have to learn how to be an internal advocate, as opposed to an issues spotter or legal nay-sayer," Vesely says. "It's about identifying risks and suggesting the most appropriate way to deal with them." Sidhu says keeping the confidence of senior executives requires an understand- ing that they are oriented to assessing and minimizing risks, rather than turning away from them. "ey don't want to hear what they can't do," she says. "ey want to know what they can do." "Understanding the vision of the CEO is vital," Soccio says. "e key question is, 'How can we do this?' Becoming an in-house counsel requires a change of mindset." It means becoming comfortable emphasizing the entrepreneurial over the purely technical perspective. "Before you take the job, you have to know who you are and what you really live to do."