What you are not taught at General Counsel School

Too much is written about the move from private practice to in-house.

Brett Farrell
Brett Farrell

I want to be closer to the business. I don’t want the hours in private practice, etc. You’ve heard them all. Missing, however, are articles about becoming a general counsel for the first time – the first time that the buck stops with you. I’m going to write a few blogs that deal with that from my experiences.

The often and usually only quoted reason to leave private practice for an in-house role is to be “closer to the business”. Undoubtedly that is more fulfilling than answering discrete abstract questions without all the facts. It’s even more fun when you are the company’s general counsel – your opinion matters and you advice is informed and relevant to the business; You’re close to the business. Only that it’s not and you’re not either.

Working in-house comes at a cost – it’s not all long lunches with private practice firms. The price you pay is career accountability where you will actually live and die by your decisions and you will be forced to make them. Your CEO or Managing Director is thinking that “you are paid enough bloody money to have an opinion, damn well give me one!”

Giving an opinion is the single most important way for any in-house lawyer to add value to any business. Assess the situation, apply the law and give an opinion. If you’ve been trained to give clients information and then let the client make a decision, then, up front, in-house is not for you. You will be asked for an opinion based on your legal experiences. You did, after all, want to be closer to the business didn’t you?

Please do not expect everyone in the business to accept your pronouncements as law and act as such because you will just be disappointed. Everyone is, of course, entitled to an opinion – that doesn’t mean that everyone is entitled to offer an uneducated legal opinion. But they do. The “business” all are perfectly comfortable debating the nuances of legal advice given and challenge you at every step of the way. Don’t dare try to opine about their business roles – that is not permitted.

The difficulty is that they are not lawyers, but that doesn’t stop them and they debate commercial points as legal experts – that is – they seek to argue that risk is low (it’s always low, ever noticed that? A “business” person never seems to have a deal that has any risk?) and that you, as a lawyer, are worried about nothing.

We are not and we never are worried about nothing – we’re usually worried about legal risks occurring from ill-thought out commercial deals that inevitably occur long past the “business” persons protestations that “we never exercise that [unfavaourable to you] clause”.

Lawyers need to bridge the gap between probability (business-speak) and possibility (legal-speak).  It’s generally more profitable and less painful for lawyers to learn about probability than it is for business people to accept the world as possibilities.

I usually start that process by asking myself how much I really care about an ill-thought-out clause impacting us. Low risk of happening? Low level of consequences? Low financial impact? Poorly drafted? Accept it and move on.

I also ask the business people, with more serious clauses, how much they care if the clause triggers causing the impact that flows from that. Asking how much they care reframes the question into consequences which the business person will easier understand and the lawyer will get a more considered instruction from the answer – even if you still think it bone-headed.

You will be giving opinions and they will be challenged. Giving opinions aligned with the business goals & strategy and finding many different ways to make the business listen to advice are the first two skills that you will need to make in-roads in-house.