The Backstage Pass

At the climax of the movie, “The Devil’s Advocate,” Satan, who has assumed the guise of law partner John Milton, explains to Keanu Reeve’s character why he chose to be a lawyer; “Because the law, my boy, puts us into everything. It's the ultimate backstage pass. It's the new priesthood, baby.”

I don’t find the devil’s reasoning entirely persuasive; I mean, wouldn’t a power-hungry demon rather be a rock star, sports hero, CEO, local despot, or some other more notorious celebrity. Frankly, I can’t imagine the Antichrist shepardizing case law or cite-checking law review articles. (I could be wrong on that point, perhaps the devil really is into the details?)

That said, the line makes a valid point that lawyers have “the ultimate backstage pass.” Lawyers see the inner workings of a corporation from a different angle than the main actors and can take on the role of a coach and critic for the benefit of the business. Moreover, a certain sense of “behind the scenes” detachment is useful to in-house counsel, both for keeping calm when dealing with the occasional barrage of human foibles, and also for discerning trends and patterns and using that learning to manage future risks.

Because lawyers can, and should, see the entire sweep of the production, rather than one narrow part, they are in a unique position to offer value based on that holistic view. This is an especially useful perspective in the highly-regulated, litigious, global, complex modern business environment, and, in my opinion, is why so many general counsels have been called on recently to assume the mantle of CEO.

Hmmm, perhaps the devil had a point after all.

Real Law

Every type of lawyer believes that they are the ones who engage in the true practice of law. To litigators, law is the theater of the courtroom and those who engage in other practices are paper-pushers or desk-jockeys; to M&A specialists, real law is the art of the deal; to appellate practitioners, genuine lawyers are those whose verbal jousting leads to reported decisions; to criminal lawyers, law is exonerating the innocent. All of these perspectives are valid, but for me the in-house practice suits my preference for “applied” law, that is to say the practical application of legal theory to real life business problems in furtherance of maximizing the value and efficiency of an enterprise- that’s the part of law that calls to me the most.

A desk job. Is that all you can see in it? Just a hard chair to park your pants on… Just a pile of papers to shuffle around, and five sharp pencils and a scratch pad to make figures on, with maybe a little doodling on the side. That's not the way I see it... To me a claims man is a surgeon, and that desk is an operating table, and those pencils are scalpels and bone chisels. And those papers are not just forms and statistics and claims for compensation. They're alive, they're packed with drama, with twisted hopes and crooked dreams. A claims man… is a doctor and a blood-hound and a cop and a judge and a jury and a father confessor, all in one.

-Edward G. Robinson as Barton Keyes, Double Indemnity (1944)

Substitute “general counsel” for “claims man” in Edward G. Robinson’s quote and you may understand why I enjoy the practice of in-house law. A corporation houses the world-challenging dreams of management, the wide-eyed hopes for sky-rocket careers, the earnest plans for a stable income, as well as a multitude of other ambitions and desires held by employees, customers, vendors, and shareowners. To be fair, most of these hopes and dreams are neither twisted nor crooked, but they are packed with drama, and this is the theater that in-house lawyers are privileged to be part of.

Everyone's a Lawyer

In house counsel can’t monitor every aspect of an enterprise on their own. One of the additional benefits of creating sophisticated consumers of legal services is that you can leverage the help of all employees to act as an extension of the law department.

I like to say that “everyone’s a lawyer.” By this, I don’t mean that all employees should feel free to dispense legal advice, but rather that all employees should understand the connection between their daily duties and the legal issues that are likely to arise from their jobs. Employees empowered with this knowledge will act as a distant early warning system to sound an alert when the missiles of new legal issues are headed your way.

In an environment where proactivity and “seeing around corners “ is at a premium, a little advance notice can be the difference between needing an ounce of prevention or a ton of cure.

Sophisticated Consumers of Legal Services

What if you had to consult a physicist before you performed any household chores to ensure that your efforts would comply with the laws of nature? You would certainly respect the advice; you might even have a general understanding of the laws of gravity and the theories of dark matter, but you may also be left with a vague skepticism and mounting frustration about whether such esoterica should be allowed to interfere with your intended plans.

So too it often is with in-house lawyers and their colleagues.

As such, one of the most critical aspects of a successful in-house practice is making sure that you turn your colleagues into sophisticated consumers of legal services. While lawyers take for granted the incredible value that they add to any transaction, most people view lawyers with a mix of skepticism, deference and confusion. They see attorneys as alchemists and are dubious that lawyers have found the philosopher’s stone to turn their business stratagems into gold.

Even experienced senior managers often have a narrow view of the value their legal department brings. Sales VP’s sometimes see lawyers as mere wordsmiths, Finance VP’s often see a compliance function, even lawyers themselves detract from their value by demurring on “business” issues.

To be most successful, it is imperative to teach colleagues that the legal department, and each lawyer in it, brings to the table a wide spectrum of experience and savvy advice that can add value to the business, manage corporate risk more thoughtfully and help the business processes of the company run more smoothly. Don’t forget that most non-lawyers have only a vague notion of what an attorney does and many of those notions may be colored by legal shows they have seen on television. An educated client is a powerful ally- so take the time to make your coworkers more sophisticated about the value lawyers offer and reap the benefits with richer, more collaborative relationships with colleagues.

Flag Day

The things that the flag stands for were created by the experiences of a great people. Everything that it stands for was written by their lives. The flag is the embodiment not of sentiment, but of history.
- Woodrow Wilson

For an excellent history of Flag Day, please visit http://www.usflag.org/history/flagday.html .

This week, the General Counsel Diary will begin its summer schedule with new postings each Monday and Friday.

Thanks for visiting.

Rhythms of Law

Outside my office is a tidal marsh. It’s a calming influence on my day because no matter what frenzies and frictions may occur in the office, the marsh steadily follows its own pace, breathing the tides in and out at an unvarying cadence.

It occurs to me that the various disciplines of law also have their own internal tempo, and the job of the General Counsel is often like that of an orchestra conductor- to harmonize the internal rhythms of the in-house practice.

The commercial practice has a tidal pace, with the flow of deals arriving in (reasonably) predictable waves at the end of a month or quarter, and then ebbing at other times.

Litigation and disputes are like thunderstorms; we can hear their rumbles before they reach us, but they arrive with a sudden lightening fury, and usually pass quickly after soaking us with their downburst of activity.

The corporate governance practice has a metronomic beat; the schedule of this practice is measured by the days of the calendar- two days to file Form 4’s, four days to file 8K’s, dividend notice dates, proxy filing dates- same time each year, annual meeting to follow.

The goal, I imagine, is to keep pace with the beat of the company’s business, manage the occasional syncopated timing, and in so doing, support the harmonious workings of the enterprise.