An Inside View of Corporate Counsel
Although misconceptions linger, the stature of corporate counsel has
taken a leap forward since the 1980s, when many corporations began to
revamp their legal departments. In-house positions can no longer be
dismissed as the "slouch" jobs.
By Dianne Molvig
In the past, in-house lawyer positions were thought best suited to
two groups of attorneys. Those nearing retirement could go to work for
corporate legal departments, where they'd find a quiet place to while
away the final phase of their legal careers. Other lawyers who had
failed to progress along the partnership track in private law firms
could take refuge in the less demanding in-house environment. The word
"in-house," when applied to lawyers, became synonymous with "out to
pasture" or "out of the running."
Tied to those stereotypes were misguided perceptions about what
in-house lawyers did. Descriptors like "gatekeeper" and "traffic cop"
popped up often. People assumed that in-house lawyers tended only to
mundane legal tasks, contracting the substantive work to outside
attorneys. Many corporate counsel will tell you those old images are far
from dead.
"To some extent a corporate lawyer is still seen as a second-class
attorney," says John Higgins of Nationwide Enterprise, the
Milwaukee-based trial office of the Nationwide Insurance Group, "not
only because we're perceived as not practicing 'real' law, but also
because we represent a corporation rather than individuals."
Although misconceptions linger, the stature of in-house attorneys has
taken a leap forward since the 1980s, when many corporations began to
revamp their legal departments. Complex legal work came back in house,
rather than being farmed out. Big-name national companies succeeded in
luring top-quality lawyers away from private law firms. In-house
positions can no longer be dismissed as the slouch jobs.
Corporate Counsel Connections
The American Corporate Counsel Association and its Wisconsin chapter
aim to meet the professional needs of attorneys working in the corporate
setting. Membership is open only to lawyers who practice law as
employees of organizations in the private sector, and who do not engage
in any private practice of law.
"The main benefit," notes Dean Zakos, president of the Wisconsin
chapter, "is the opportunity to meet and work with other corporate
counsel who are essentially doing the same kind of work you're doing."
Both the national and state groups host meetings and seminars that are
"put on by corporate counsel for corporate counsel," Zakos notes.
For additional information, contact the American Corporate Counsel
Association at (202) 296-4527 or Zakos at (414) 636-1200.
At the same time, lawyers working for corporations shed the "in-house
lawyer" term, with its old baggage, and replaced it with a new name:
"corporate counsel." (That's not to be confused with "corporation
counsel," which refers to attorneys who work with a government unit,
such as a county or municipality.)
Still, "corporate counsel" is an umbrella term. The lawyers who stand
under it are as diverse as any other attorney subgroup. Some do nothing
but litigation work; others never step into a courtroom to argue a case
but work closely with outside litigators. Some concentrate in one area
of the law, such as real estate or environmental law; others are
generalists. Some work daily alongside dozens of legal colleagues in
their corporate offices; others comprise one-person legal
departments.
"Just as I wouldn't paint all lawyers in private practice with the
same brush, neither would I do so for all corporate lawyers," says
Kathleen Rivera from Northwestern Mutual Life in Milwaukee. "And while I
think outside lawyers sometimes are inclined to be dismissive of us,
those we encounter - whether they're lawyers we're working with on a
case or those on the other side - quickly learn that we know our stuff.
We know our clients. We know the substantive areas of the law. We're
working lawyers."
The Corporate Attraction
Why have some Wisconsin attorneys been attracted to corporate counsel
positions, and what holds them there? One strong plus for many is the
chance to do preventive law.
"I see that as the key difference between inside and outside
counsel," says Mike Mulcahy of the Gehl Co. in West Bend. "As outside
counsel working with a company, you normally get a legal problem after
the shoe has dropped. You work on damage control. I'd be less than
candid if I were to say that in 23 years that hasn't happened to me,
too. But it's something outside counsel has to deal with much more
often. An inside lawyer is able to be familiar enough with the business
to prevent legal issues from becoming problems."
Mulcahy's preventive tactics include giving presentations to Gehl's
employees in the sales and service divisions, and to staff in Gehl's
credit company. He familiarizes them with proper procedures up front.
Another way to ward off problems is a matter of "just being here,"
Mulcahy says, "in the same building or a telephone call away. People
don't feel reticent about calling me, whereas if they had to call
someone on the outside and they knew the meter was running, they might
wait until the other shoe drops."
That ability to spot potential legal trouble and steer clear of it
not only benefits the corporation, it's also the source of professional
satisfaction for corporate counsel. "I feel I am more fully a business
counselor," says Ron Mc Cray who came to Neenah-based Kimberly Clark in
1987 after four years of practicing corporate law in a private law firm.
"When you're in the private practice setting," Mc Cray points out, "you
tend to be a step or half-step removed from complete understanding of
the business milieu. You don't have as good a feel for where the
business is, where it's going, why it's going there, who the people are,
what the appetite for risk is and what the corporate culture is."
Being in the thick of all that appeals to Mc Cray and, like Mulcahy,
he finds it professionally rewarding to be involved "early in the
business goings-on," he says, "so I have the opportunity to develop
legally friendly approaches to business endeavors. I prefer to do it
right the first time than to be the one who has to try to fix it
later."
For Sigrid Dynek, working with business issues was a key factor that
drew her to a corporate counsel career right out of law school. (That's
rare today, she notes. Most corporate legal departments hire only
experienced attorneys.) Dynek went to work for A.O. Smith in Milwaukee
in the early 1970s, at the height of the "in-house lawyer as gatekeeper"
era. Even so, "I never wanted to be a gatekeeper," says Dynek, now an
attorney for Kohl's Department Stores in Menomonee Falls. "I wanted to
practice law." What made her think that would be possible, given the
image of in-house lawyers at the time? "I guess I was optimistic," she
says, "I felt that I could, if given a chance, provide a value-added
product."
Over the course of her career in two different companies, Dynek says
she's been regarded as part of the management team - just like human
resource or finance managers - who come to the table to build business
solutions. She, too, finds it more rewarding to be an architect of legal
strategies in the early stages, rather than being called upon to fix
legal trouble after the fact. Plus, Dynek finds other gratification in
her corporate counsel role.
"There's no question that if I've made a mistake in judgment and
haven't advised the company properly, I'm going to be asked why," she
notes. "I have to live with my advice. And I never say 'I told you so.'
That's also the intriguing part of this job for me. I like the
continuity. This company is much more complex today than it was when I
arrived in 1991, and a lot of work of a legal nature has gone into that
transformation. So not only do I have to live with my advice, but I can
also grow with it."
One Client, For Better or Worse
A corporate attorney has only one client, already built in. No need
to hustle to build up your client base. No need, usually, for
malpractice insurance, as the client's (that is, the corporation's)
retribution for malpractice is simply to fire you.
Michelle Behnke expresses the sentiments of many corporate counsel
when she says she's glad to have left client-generation duties behind.
She joined the legal department of Madison-based CUNA Mutual Insurance
Group four years ago after five years with a private law firm. "When I
was in private practice, I did not mind the obligation to participate in
client-generation activities," she notes. "But in today's climate,
clients bounce around. They hire you for one project and go to someone
else for the next. That doesn't mean they don't like your work, but
they'll go to the lowest bidder. So (as a corporate attorney) I'm glad I
don't have to wake up and say, 'Who am I going to network with today or
who will I get a referral from?'"
Even so, corporate counsel practice also has a "sales" side, but of a
different nature, points out Rivera, who was a private practice attorney
for 11 years before joining Northwestern Mutual Life. "You still have
client development challenges," she emphasizes. "As a corporate counsel,
you have to make sure people in the company know how you can add value
and understand what your role is."
The unique client-lawyer relationship for corporate counsel also is
the source of ethical dilemmas that differ from those of private
practitioners. For one, corporate counsel often wear two hats: legal
advisor and business advisor. "Ethically you have to draw a line between
business advice and legal advice," explains Dean Zakos of Modine
Manufacturing in Racine. "If you don't draw that line and then later
attempt to assert attorney-client privilege or attorney-work-product
privilege, the opposing counsel may try to argue that the privilege
doesn't apply because you were providing business advice, or mixing
legal and business advice. So if you're not careful, you could lose your
right to claim the usual privileges that shield your work."
Another type of ethical quandary can be especially difficult for
corporate counsel. Because the corporation is the client, corporate
counsel's job is to represent the company's interests. But that entity
consists of numerous individuals who sometimes come up with ideas or
decisions that, in corporate counsel's judgment, pose unacceptable risk
for the company. "When that happens, as corporate counsel I have an
obligation to protect the corporate interest not simply do what the
business person wants. This can be very difficult," Behnke notes.
"Not only can that be an uncomfortable situation," Behnke adds, "but
maintaining a good rapport with the business people helps you do your
job. If you have a good rapport with the client, the client is more
likely to tell you what's going on. Without that information, it's hard
to protect corporate interests." (Please see a review of Legal
Ethics for Management and Their Counsel in this month's
Book Reviews column.)
Professional Puzzles
Besides their special brand of ethical considerations, corporate
counsel grapple with other perplexities. "One of the toughest issues
I've always struggled with," Mc Cray points out, "is how to know that my
skills are where they need to be for my experience level. When I was in
private practice, I had five or six people I could talk to to get a
sense of where I stood. But here in the corporate environment, I don't
have several people at my level in my areas of expertise. I don't have
that basis for comparison. How do I keep myself challenged?"
Mc Cray has to answer that question not only for himself but also, as
a manager of a team of attorneys, he must make sure their skills measure
up. One of the key ways to do that is to "get out of here now and then,"
he says, "to attend seminars, to meet people who are doing trademarks or
patents or whatever your areas of law practice may be."
In other instances, however, getting out of the office may be frowned
upon, or at least not encouraged, by the corporate client. Take, for
instance, the issue of activism in the State Bar. In private law firms,
lawyers' participation in Bar functions and committees is regarded
almost as a professional obligation, and as an activity that can boost
the firm's image and ultimately attract new clients. But corporations
stand to gain little or nothing when their attorneys are active in the
Bar.
"People kind of scratch their heads and ask, 'Why do you do that?,'"
says Behnke, who's a member of the Bar's Board of Governors and the
Diversity Outreach Committee. "In a corporation, your clients expect you
to be available during the same business hours that they are working.
From the corporation's perspective, participating in Bar activities
doesn't necessarily boost the company's image or attract 'new clients'
as may be the case when you are in private practice. Therefore, Bar
activities may not be viewed as valuable. I use my personal vacation
time to participate in Bar activities."
Behnke admits many of her corporate counsel peers don't understand
why she's so active in the Bar, either. "Many corporate counsel don't
participate in Bar activities because they see the Bar as irrelevant to
them, as not meeting their needs. But if you don't participate, how can
the Bar know it's not meeting your needs? It's a chicken-and-egg."
By being active in the Bar, Behnke feels she serves as a reminder
that corporate counsel are part of the profession. When she's at a
meeting and reacts to an idea from the corporate counsel's perspective,
"People will say, 'Oh yeah, there is that group out there,'" she notes.
In turn, that counters "the perception I think a lot of people have that
we don't really practice law ... that we're not really peers."
Tradeoffs - Professional and Personal
To outsiders, corporate counsel appear to have a cushy, nine-to-five
existence. If only that were true, lament corporate attorneys. They,
too, sometimes put in long days, lug work home at night and come into
the office on weekends. And when extra hours are called for, those don't
translate into a fatter paycheck.
But corporate counsel also see a bright side: Compared to other
lawyers, they find it easier to strike a balance between work and the
rest of their lives. In fact, that's what drew many corporate attorneys
to their chosen careers in the first place. Take Marv Strawn of the
Milwaukee-based Firstar Corp., who worked as a litigator for seven years
in both private practice and government positions before switching to
corporate practice in 1980. "Every holiday I had briefs due or deadlines
approaching," Strawn recalls of his former life. "Every Saturday and
Sunday I'd worry about what was coming up that week."
Now that he's a corporate counsel, Strawn feels he has both a
challenging job and more time for outside activities. For instance, for
26 years he's been investing lots of personal time in the National
Guard. He doubts he could do that if he were still in private practice
or government work. "People do it," he points out, "but it's more
difficult."
On the other hand, Strawn acknowledges that he's given up the chance
to make the higher salaries some private lawyers earn. "When we're
recruiting here at Firstar," Strawn says, "we tell people that if you
come to work for us, you won't make the really big bucks, but you'll be
well compensated. You won't have a steady diet of working late at night
and weekends. And your lifestyle will allow you to devote time to
interests other than your work."
Tied to the pay issue is the question of prestige within the
profession. Unlike their private practice colleagues, who notch their
way up the partnership track, corporate counsel don't have a comparable
success ladder. Their names don't end up in the company's name. Nor do
they enjoy the visibility, both in the legal community and the
community-at-large, that comes with being a partner in a firm. All of
this contributes to the still prevalent "second-class attorney"
image.
Most corporate attorneys seem to take that in stride, citing other
benefits. "I get a lot of personal and professional satisfaction,"
Rivera says, "from developing long-term relationships with people in the
client organization. Frankly, in private practice so much of the
perception of a lawyer's value to the firm is directly linked to
compensation, to what you make relative to your partners. People lose
sight of other reasons they're happy to practice law. It's not that
money is unimportant in the corporate setting. But it's less likely to
be the end-all and be-all of the way you're judged or recognized for
your contribution to the organization - and of the way you think about
yourself."
Dianne Molvig operates
Access Information Services, a Madison research, writing and editing
service. She is a frequent contributor to area publications.
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