Rees Morrison’s Morsels #112 – additions to earlier posts and short takes

Independent counsel to a Board of Directors. Even when a company has a legal department, Board members sometimes retain outside counsel (See my post of July 25, 2005: costs of Boards retaining independent counsel; Sept. 13, 2005: Carey International; Sept. 27, 2005 #3: Arizona Electric Power Boards retain independent counsel; Oct. 30, 2005 #2: especially if there are allegations of managerial misconduct; Nov. 16, 2005 #1: Raytheon’s Board; Nov. 24, 2005 #3: two years of non-use allows a firm to be “independent”; Feb. 18, 2006 #2: more than 35% of Boards had retained their own lawyers since Sarbanes-Oxley passed; Feb. 19, 2006 #2: Rite-Aid Board also hired forensic accountants; and July 25, 2007: payment by a company of Board members’ fees of outside counsel.).

Metaphors from physics for general counsel. A number of metaphors applicable to legal departments and their management suggest themselves from the discipline of physics. Without management, legal departments can unravel into entropy (See my post of Sept. 10, 2005: larger law departments combat entropy and the second law of thermodynamics.). Sometimes management initiatives unleash a quantum leap (See my post of Dec. 21, 2005: jargon of “quantum leaps.” Plus, Heisenbergian uncertainty rules.

Percentage of GCs are among the five highest paid executives. The many studies that describe general counsel compensation never say what percentage of the general counsel are in the select group of corporate executives. I wish we knew (See my post of Aug. 12, 2008: handsomely rewarded GCs.).

In-house responsibility for direct briefing a barrister. A blogger in Australia raised a question: might in-house counsel be personally liable for barrister’s fees if they direct brief. What does it mean to “direct brief”? It means that in-house counsel send a brief to a barrister directly, and do not involve a solicitor as a middle-man. Ah, now we know that much, but not the ultimate answer

Three general counsel who spent their entire legal career in a single department. Tom Sager, the general counsel of DuPont, joined that legal department straight from Wake Forest University School of Law in the early 1970s. He never left. Likewise, Gloria Santona of McDonalds went from law school to law department (See my post of June 24, 2007: Santona’s career.) as did Catherine Lamboly of Shell. There may be others, but it is a rarity for a general counsel of a major law department to have spent his or her full career as a lawyer in that department.

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