A call to arms on professional regulation

Cheryl Foy
The in-house practice of law differs dramatically from the practice of the traditional private practice lawyer. I agree with those of you who say internal and external lawyers have more in common than we don’t, but I don’t agree with those who use that as a reason to subsume the in-house lawyers within the larger group for all purposes. This is not a column about “piling on” to criticize outside counsel. I believe we should all work to ensure the relationship between in-house lawyers and private practice lawyers (between all lawyers for that matter) is collegial and respectful.

I have had multiple conversations in the last months with external counsel who feel beaten up and disrespected by clients who don’t value what they do, who do not plan, who leave things to the last minute, and who do not respect boundaries by expecting external counsel to be available at the drop of a hat, any time of the week.

Some of this is a reflection of the practices of many of those within corporations — as key members of the leadership teams of our organizations, we are available to our organizations when they need us and we need that from our external lawyers. Some of this is because we cannot handle the loads thrown at us and cannot seem to get on top of the work or get organized. Some of that inability to handle the workload may be due to our own poor management skills and some may be due to a lack of resources.

In any single relationship between an internal and an external lawyer, there may be many reasons external counsels feel unvalued and poorly treated. There’s a lot of focus within the in-house community on managing the performance of external counsel, and as in-house lawyers are the paying customers, there is a natural path for feedback from the internal counsel to the external. However, constructive working relationships between internal and external counsel would also have feedback coming back to the in-house lawyer. That’s a tricky issue and I venture to guess most external lawyers don’t feel in a position to provide meaningful feedback to their in-house counterparts.

My advice to my in-house colleagues is to figure out how to secure that feedback and not just on a systemic level, but also on a personal level.

All of the relationship “stuff” described above is very important but it’s equally, if not more, important not to lose sight of the big picture. Is there a connection between these individual challenges and the system? Of course there is.

Personal relationships notwithstanding, on a big picture level, in-house lawyers struggle (as do individuals who need legal help) with the fees external lawyers charge and with the lack of connection between value for services and cost for services. This lack of connection arises from billing for time as distinct from the value of the result. In-house lawyers operate in a world of results and must straddle, defend, interpret, and explain the world where external lawyers charge for time and often insist on taking a lot of time to do a task (such as providing an answer in writing in order to minimize their own liability when all the in-house lawyer wants is a quick phone call).

As a profession, we are making excruciatingly slow progress toward addressing these issues. There is a lot written about how the profession must change and the good news is we are talking about it. There are a (very) few examples of firms genuinely trying different approaches and the larger enterprises seem to be having some success with alternate billing arrangements, particularly for commodity work. However, as our profession goes through this process, we have to expect this fundamental divide will run as a current in all in-house and outside counsel relationships. It should be motivating all of us to effect the necessary changes more quickly.

This need for change at a systemic level brings me back to my last column, in which I said my next two columns would be dedicated to exploring why in-house counsel do not have the tools they need to do the difficult jobs we have to do.

Why, when the in-house profession has grown dramatically in influence in the business world, is it essentially a second-class citizen in the legal world? Part of the reason change is so slow to come is the governing bodies of lawyers across Canada do not, as a general rule, include in-house counsel. This is not to say in-house lawyers are excluded — I found a few examples of in-house lawyers sitting as benchers — however, almost all law societies select lawyers as benchers/members based on geography alone and I have never heard of, nor is there evidence of, any initiatives to encourage in-house counsel participation on these governing bodies.

From my perspective (and I admit to canvassing none of my colleagues), the law society responsible for lawyers in Ontario seems far-removed from my day-to-day life as an in-house lawyer.

So here’s my call to action: To my fellow in-house lawyers — start thinking about how your law society can be made more relevant to you as an in-house practitioner. Run for a bencher role! To the law societies: Look at how society is changing. Look at the key role played by in-house counsel and consider about how these lawyers can be better supported by the law societies.

There is a real opportunity to work through in-house lawyers to effect positive change within the profession and within corporations. Consider how increased involvement from in-house lawyers can improve the dialogue about legal services and access to justice (many of the things in-house counsel struggle with are barriers to justice for the average person), and start thinking about representation on your governing boards and how it might be restructured to better reflect the composition of those governed.

To all of my legal colleagues, and all of you who read my column, I wish you peace, happy times with your loved ones, and very happy holidays!

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