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Intractables for law department managers: clients’ appropriate use of in-house lawyers

Three tensions stand out for me between what clients want and what in-house should provide. No solution will ever emerge for these intractable management problems, a subset of the insoluble issues general counsel face that I wrote about in my article on intractables.

Clients want an unlimited, free good; lawyers fear over-use and low value tasks. The tension struggles between “call me but don’t abuse me.” No market force allows for discrimination between what’s valuable and what’s not. Quasi-legal tasks manifest this imbalance. In-house lawyers are torn because they seek client satisfaction but they also have only so much time. This intractable puts the burden on the law department to sift through work requests and obligingly determine priorities.

Clients want counsel only when needed; in-house lawyers want early involvement to avoid legal messes, but not to be buried with premature time-wasters. A constant lament in-house is that “lawyers don’t have a seat at the table” – they are not involved in high-level executive discussions – and they don’t get a chance to offer legal advice until it is late in the decision’s day. When lawyers point out problems with a project that is near approval, clients turn on them as deal breakers.

Two points here: one has to do with access to C-suite executives, the other point has to do with weighing in timely on decisions. We might dub these points executive-level involvement compared to ground-level involvement. A previous post discusses obstacles to law departments being “aligned” with clients (See my post of March 31, 2007 regarding road blocks to alignment.). One path to alignment is to sit next to your client every minute, but that wastes hours and hours of time. No law department has solved this give and take.

Clients mostly want legal advice; lawyers see the value of the business experience they have. It is impossible to draw bright lines that separate business advice from legal advice. After all, all legal advice derives from underlying business facts. The risk is that a lawyer who transgresses and gives what a court deems to be business advice whereby sacrifices the attorney-client privilege related to that advice. It is far beyond this blog’s reach or competence to do more than note this perpetual tension.

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