In-House Counsel Balance Many Duties

One of the challenges of being an in-house counsel is the tension between our duties as professionals and our duties as employees and managers. Accordingly, this month I'm spelling out a variety of duties we may have and reflecting on the challenges of truly acquitting our professional responsibilities.

Duty to the Client: For in-house counsel, the client is the corporation. That shibboleth is not particularly helpful, though. When you try to dial said client, who are you going to call, Ghostbusters?

More seriously, most people would maintain that the board of directors embodies the client. That is a lovely statement in the abstract. But how often do in-house counsel speak with the board? Even the GC probably sees all of the directors only a half-dozen times per year.

And given travel logistics, multiple board committee meetings and the tyranny of meeting agendas, how much quality time is left to spend with the client? And who is exactly is that client? The chairman who is also the CEO? The lead director? The head of the audit committee?

A concrete example: Many in-house counsel are involved in preparing board materials. How often does the material sent to the board present management's efforts in the best possible light? Or contain embedded assumptions not likely to be realized? When you see those materials, what do you do?

If you're covering a committee, consider pre-scheduling a 10 minute meeting in your office with the chairwoman during a break in the agenda, just to see if she has any questions. Ensure those embedded assumptions are clear. If you aren't doing that, are you really providing professional advocacy to your client?

Duty to the Company: At its worst, legal is the "Department of No." Your sales team wants to grant a key customer relief from an indemnity cap: No. Your R&D department needs to engage with a partner who won't sign the NDA you labored to create: No.

At its best, the legal department is a business partner of the company's functional groups. Legal assists those groups in achieving their objectives; one could probably even craft a mission statement out of that. Warm, fuzzy, terrific! But again, where is the professionalism? Anyone can be a business partner. Didn't we all borrow that phrase from HR?

Consider this: Sales comes to you with a contract for approval. You read it and realize the other side doesn't understand what they're signing up for. Maybe they didn't employ legal review or the lawyer who read it was out of his depth. Or maybe you recognize the specification your side is calling for is unachievable by the counterparty.

Your sense is that the counterparty will inevitably be unable to perform. What do you do? Do you call counsel for the other side? Unless the result for them will be civil liability or more, probably not. But as a professional, don't you have the obligation to at least point out the issues to your manufacturing, supply chain, sales or other personnel involved in the project? If you don't, who will?

Duties to Non-Parties: Ever keep your BlackBerry on your chair during dinner or tell your daughter to "wait a minute" while you check the source of an incoming text? I fail that test regularly, and that's after installing custom message alerts for my CEO, CFO, their admins and my wife.

We all should consider trying harder to meet our obligations as professionals, while at the same time being fully present in non-work contexts. That's the essence of being a professional.

As one of my mentors used to say, "The problem with responsibility is responsibility."

Contributing Author

Martin Collins

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