Thursday, June 25, 2015
In my final post on the subject of “respectability” of lawyers (the first four can be found here, here, here and here), I’d like to tie my thoughts together, discussing what the various parties can do to make Bird and Orozco’s thesis of assimilation of lawyers into corporate business teams the “new normal”. This should give lawyers more career opportunities in the future, slow the loss of influence of the legal profession in businesses, and make legal education a more attractive choice. Much of the discussion in academia has ignored the in-house counsel approach as being a viable option for the woes of the legal industry. Below the fold, this post will discuss the roles that academia, in-house counsel, and business firms each may play in increasing the potential for success of a new model for business lawyers.
Law schools, as some are already doing, can coordinate classwork with business schools so that each type of student can gain an appreciation for the other in a professional setting. Combined projects, workshops, and lectures with business students and their professors can give law students greater comprehension of advanced business processes and business students more familiarity with the analytical approach of lawyers. More law schools can develop, in the second or third year, a specific series of integrated courses that allows for closer examination of legal issues that are important to a general business law practice, which are critical to in-house counsel, such as employment law, insurance, or business governance. Creation of specialized centers in law schools for the study of in-house counsel issues might make those schools more competitive for interested students, lead academic research in the area, and garner extended support from corporations. Active corporate sponsorship could lead to greater partnership with the business community, and the increased possibility of hiring students directly into businesses.
This is not to say that law schools need to become legal clinics. Obviously, the need to “think like a lawyer” and the students’ exposure to doctrinal rules and theory across the legal spectrum is paramount. However, higher focus on legal reasoning, doctrine, and theory will not be as helpful for law students if the jobs for pure legal work in private firms are no longer widely available. More practical application courses, as the ABA has required in their new standards, will be necessary for businesses to begin widely accepting students directly out of law schools. Many business leaders will not see the immediate value of a purely doctrinal legal education, at least until influential in-house counsel can demonstrate the potential advantages. Some “clinicalization” will have to occur if this corporate integration model is to gain ground and provide a broader field of opportunity for law school graduates.
Current in-house counsel can encourage this transformation (which should also mean more opportunity for them as the acceptance of lawyers grows) by doing several things. First, they can be the best lawyers they can be. The days of learning one thing well and repeating it over and over for 25 years should be done. Value cannot be added (or shown) if current in-house lawyers take the easy way and simply complete tasks without true engagement in the business. Industry certifications, volunteering for temporary management positions, and perhaps specialized LL.M. degrees should become the norm, not the exception. With corporate tuition assistance programs often available, LL.M. programs should be affordable and help in-house counsels be a more effective conduit to outside counsels, both in respect and industry knowledge. For current in-house lawyers that did not have the advantage of the legal mentoring and training in law firms, much of this learning (at least initially) will have to be self-motivated. In-house lawyers will not have the luxury of being reactive, relying on a degree from decades ago, and making vague pronouncements in meetings, figuring that the business managers will not know the difference. They will have to keep up legally and learn the business as it evolves.
For the business firms, they need to hold their in-house counsel accountable but also be willing to think of lawyers as part of the business team, not simply a tool to accomplish a defined end. Management should treat the in-house lawyers with the same respect that they show to other employees and try to not to undermine the lawyers’ efforts. But management also should make the lawyers show their math. Legal and business research regarding the issue and potential solutions not only keeps in-house lawyers sharp, it also can alleviate management concerns about the “trust me, I’m a lawyer” factor. Lawyers are intelligent people and should be able to respond to these challenges in their work. If they cannot adapt to being a part of the business, rather than merely a service resource, they should be replaced. Firm management should make sure in-house lawyers are compensated fairly and should abandon the view that “a lawyer is a lawyer.” Instead, management should value specific legal talents or expertise. This will help ensure that corporations are not the refuge for those lawyers that simply want a job, as is sometimes the case today.
As Orozco and Bird have discovered, businesses using their internal legal talent to secure a competitive advantage will thrive in a future filled with increasing regulation. The law and lawyers need not be a constraint on managerial decisions. Rather, they can play an active role in these decisions. Transforming business management philosophies to the point of understanding the value of collaboration with their lawyers and executing on the synergy potential between legal departments and management can benefit all in the future. Moreover, this possible evolution could enhance in-house counsels’ reputation in their respective businesses and in the business community at large, increasing the viability of in-house positions as career paths.
I appreciate the opportunity to complete this five-part series. I hope it furthers some conversation about the future of in-house practice of business law and provides some potential solutions to existing and perceived future problems for businesses, lawyers, law school faculty and staff, and law students. Thanks to everyone for their help and thoughts*.
*Especially you, Father.