In-House Counsel

The Many Hats We Wear As In-House Counsel

Today’s in-house lawyer must also serve as the company’s guardian.

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Businesswoman working on paperwork at her desk in shared officeIn May 2020, I self-published my very first article on LinkedIn for the in-house lawyer. In that article, I emphasized the importance of the in-house lawyer serving as more than just a legal advisor. Specifically, I emphasized the importance of the in-house lawyer serving as a strategic business partner. While being the company’s legal advisor and strategic business partner are important facets of the in-house lawyer role, it is important to note that these are not the only roles in which an in-house lawyer must serve. Today’s in-house lawyer must also serve as the company’s guardian.

In his book “The Inside Counsel Revolution: Resolving the Partner-Guardian Tension” (Ankerwycke 2016), Ben W. Heineman, Jr. points out that the “greatest challenge for “inside lawyers is to reconcile the dual — and at times contradictory — roles of being both a partner to business leaders and a guardian of the corporation’s integrity and reputation.” According to Heineman, “[s]uccessfully resolving this tension is essential if a company is to attain the fundamental goal of fusing high performance with high integrity.”

Successfully serving in the chief in-house lawyer (general counsel) role is definitely not for the faint of heart. The chances of success are increased when the company provides the general counsel with the right environment to achieve success; the general counsel understands and is prepared to deal with the challenges associated with the role; and the general counsel is able to maintain a strong sense of independence.

Resolving The Tension

According to Heineman, there are things a company can do to support its general counsel to resolve this tension. Heineman recommends that:

  • The general counsel not only has a direct reporting line to the company’s CEO, the general counsel has ‘unfettered access’ to the company’s board of directors.
  • the general counsel has the explicit authority to act as both partner and guardian “to help create value, protect integrity, and manage risk.”
  • The general counsel has a broad scope of duties and responsibilities cutting across the company’s operational units.
  • The general counsel has knowledge of high-level and high-priority issues facing the company.
  • The general counsel has a seat in meetings with the CEO and executive staff.

Heineman also acknowledges that, even with this structure in place, the general counsel still has challenges to overcome. It is important for the general counsel to be aware of these challenges and be prepared to deal with them.

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What Are These Challenges?

  • Overcoming a lack of understanding about law and policy from internal business partners
  • Pushing past negative attitudes about lawyers at the top and bottom of the company
  • Resisting pressure from the group in decision meetings
  • Resolving conflict that may arise when advising the CEO as business leader and advising the board as representatives of the company as a whole
  • Overcoming fear of financial loss; status; demotion; or injury to reputation

Lastly, the general counsel must exercise independence and resist external pressure. To do this, the general counsel must never forget that the client is an entity. The client is not any one person.

It is critical for the general counsel to always remember that the general counsel must provide advice and counsel that is in a company’s best interest. It matters not whether that advice is in the best interest of the chief executive officer or the board member who serve on the company’s board. It is the duty of the general counsel to work to ensure that the company’s chief executive officer and the company’s board comply with a “fair and reasonable interpretation” of the law. As Heineman so aptly states, “it means an unyielding insistence on putting the ‘is it right’ question front and center in all decisions and actions.” It also means making sure the general counsel’s judgment is free from personal self-interest.

In my experience, no one ever sets out to do the wrong thing. As former President Lyndon B. Johnson once said, “Doing the right thing is not the problem. Knowing what the right thing is, that’s the challenge.” Remember who your client is, what your client needs, and communicate with courage and candor. When you do these things, it will go a long way to resolving the tension of being both a partner and a guardian.

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Lisa Lang is an in-house lawyer and thought leader who is passionate about all things in-house.  She has recently launched a website and blog Why This, Not That™ to serve as a resource for in-house lawyers.  You can e-mail her at lisa@lawyerlisalang.com, connect with her on LinkedIn, or follow her on Twitter.

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