Chambliss on Law Firm In-House Counsel

Posted by Jeff Lipshaw

Elizabeth Chambliss (left, New York Law School) has posted The Professionalization of Law Firm In-House Counsel on SSRN.  Here is the abstract:

This Article examines the structural evolution of the firm counsel position from a volunteer, part-time position filled by an existing partner to a specialized, often full-time position increasingly filled by career in-house counsel. Based on focus groups and interviews with firm counsel, as well as participant observation at meetings and conferences aimed at firm counsel, I examine how the professionalization of the firm counsel position affects: (1) the definition of the firm as the client; (2) the authority of firm counsel with partners; and (3) firm counsels' professional commitments and attitudes about ethical rules.

I find that, from a regulatory standpoint, the professionalization of firm counsel is a positive development. The increasing formalization and specialization of the firm counsel position has helped to clarify the identity of the firm as a client without compromising the authority or commitment of lawyers who serve in that role. Although ?professional? firm counsel - that is, full-time firm counsel and those appointed from outside the firm - tend to draw on different sources of authority than part-time firm counsel who grew up in the firm, most respondents report that their role is expanding and that they have sufficient authority to be effective. I argue that professional networks among firm counsel are likely to play a critical role in defining the future standards for law firm regulation and urge legal ethics scholars to collaborate with firm counsel in promoting the vibrancy of such networks.

This is an interesting article!  I served for a short time as a member of what was called the "counsel committee" in my law firm in the early '90s.  The firm did not have a general counsel in the sense of a person responsible for all the legal affairs of the firm (say, negotiating a new lease arrangement, or the merger agreement with another firm).  Those were doled out to the partners on an ad hoc basis.  "Counsel committee" was euphemistic for "loss prevention committee" which itself would have been euphemistic for "malpractice committee." 

I skimmed the article quickly, and many of its insights ring true to my experience.  But as a big regional firm:  (1) we were far more concentrated in one or two big offices with a few outlying offices; and (2) our malpractice insurer was Attorney Liability Assurance Society (ALAS), a law firm cooperative which I believe excluded New York City firms.  It looks like the bulk of the firms interviewed were "east coast," and most of the anecdotal evidence appears to come from NYC-based firms.

One of our primary duties on the counsel committee was to act as liaison to ALAS whose staff was very, very active in proactive loss prevention.  As Professor Chambliss' interview results indicate, one of the big issues was getting lawyers to come to us early on in the problematic situation.  The chair of the committee was also the head of the commercial litigation group, and his expertise and trial skills were unquestioned.  When he spoke, people listened.  And the hallmark of the committee was complete confidentiality, so as not to chill early communication.

Interestingly, on my quick read, it looks like most of the issues faced by the "professional" firm general counsel are intake and conflict issues.  I think the reason for the ALAS decision to exclude the NYC firms had to do with the issuance of opinions in securities offerings - a big deal back then.  But I didn't see a lot of discussion of "opinion issues" in the article.  But the question whether law firm partners would view a professional general counsel as peer, and not "administration" is a good one.