Practise in-house or in private practice?

I was recently part of a panel at the 3rd Annual Disruption in Legal Practice program at Osgoode Hall Law School. In discussing the changing legal practice, our panel was asked an interesting question which, at first blush, seemed simple and straight forward to answer. Upon reflection, the response became detailed and complex. The question was: how does the role of in house counsel differ from a private practice lawyer (within this group I include lawyers in mid-to-large-size law firms and boutique law firms) and which unique skills are needed to succeed in the in-house role? The old rule applies, that if one person asks, there are many others with the same question.

Fernando Garcia

I was recently part of a panel at the 3rd Annual Disruption in Legal Practice program at Osgoode Hall Law School. In discussing the changing legal practice, our panel was asked an interesting question which, at first blush, seemed simple and straight forward to answer. Upon reflection, the response became detailed and complex. The question was: how does the role of in house counsel differ from a private practice lawyer (within this group I include lawyers in mid-to-large-size law firms and boutique law firms) and which unique skills are needed to succeed in the in-house role? The old rule applies, that if one person asks, there are many others with the same question.

At a very high level, some differences are readily apparent. One important difference is that, for the most part, in-house counsel do not have to keep track of billable hours. Yes, that insidious practice of working at a law firm, tracing every task performed on behalf of a client on a minute by minute basis, is generally not required as an in-house lawyer. This alone, based on how dreaded and hated this practice is amongst lawyers (and coincidentally amongst the in-house clients, who hear the clock ticking whenever they call or send an email to their private practice counsel), is enough to win over many lawyers into becoming in-house counsel. Closely related to the first point, in-house counsel generally work for one corporate, government or organizational entity, they report to the CEO or the CFO, and they are part of the executive business team. Because of this, business development is not a requirement of the job. Rather, in-house counsel get to attend legal conferences, galas and other spectacular legal events merely as a participant or, when invited, as a speaker, without the added pressure of having to try to find and win over new clients.

Inevitably, the question then turns to salary and work-life balance. Yes, in-house counsel generally do not earn as much salary as private practice lawyers, especially as the comparable private practice lawyer gets more senior. That being said, in-house counsel do have access to pension plans, health benefits and stock options. Depending on your family status and personal preferences, one may be more valuable to you than the other. With regard to work life balance, face-time (butt on a chair) is much less important to an in-house counsel, there is still an expectation and a need to get the work done. This will often mean the need to work from home into the late hours of the night, but the office time generally is more reasonable than that expected from a private practice lawyer.

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The points above are common high-level differences, however, when I dig deeper, I find that the most critical difference between in-house counsel and private practice lawyers is the actual work that lawyers do on a day to day basis. As an in-house counsel, unless you are part of a large in-house department with a specialized litigation team, your work will not require undertaking extensive legal research or handling litigating matters. For example, ask around and you will be surprised that most in-house counsels have not argued in court for quite some time, if ever. In-house counsel tend to be business executives with a legal background. A recent study found that 72 per cent of all GCs report directly to the CEO. This enforces the point that the GC and their team are strategic business partners responsible for navigating and leading the organization through the legal, regulatory and operational risk in their environment within which they do business. The legal team will be responsible for providing practical, business-focused advice and to help the executive and business team implement that advice. Private practice counsel tend to support their in-house client in dealing with specific legal matters or in litigating disputes, but when their work is done, they disappear; they are not part of developing or implementing the business strategy.

With regard to the necessary skill-set, lawyers in private practice tend to focus and specialize in a distinct practice area and, once established, they will be hard pressed to change into a different practice area. They become specialists within particular areas of the law. As a strategic business partner, the in-house counsel is counted on to be a Jack or Jill of all trades. The smaller the department, the more the in-house counsel will be asked to provide advice on a broad range of topics from labour/employment, corporate/commercial, finance, privacy, real estate, securities, contracts, international law, IP, and that is just in a single, normal day at work. GCs normally also hold additional titles such as corporate secretary, corporate compliance officer, privacy officer, corporate security officer, director of HR and they sit as members of numerous committees such as the pension committee, audit committee, governance committee. Therefore, the scope of responsibilities for GCs and their in-house lawyers tend to be much larger and broader.

Because of the broad nature of their responsibilities, it is fair to say that in-house counsel also need a broad skill, which includes: management skills (to manage their teams), financial acumen (to provide business advice), facility with technology, project management skills (to see through the implementation of business strategies), and many other skill-sets that are not taught in law school or generally attributable to private-practice lawyers. Because of this, the concept of the T-shaped lawyer, which I have discussed here before, is one that especially applies to the in-house counsel. Familiarity and developing of these skill-sets will be critical for success as an in-house counsel and eventually the role of GC.

It is never good to generalize, because it is easy to find an exception to the rule. However, from my experience, the role of the in-house counsel tends to appeal more to those lawyers who are business-minded, like to be part of developing and implementing a strategic solution to meet short and long-term business objectives and those who are comfortable with change and enjoy doing something different every day. If your dream is to become a Perry Mason or a Harvey Specter, to argue cases in court, to become the expert in a specific area of the law, or if you are intrigued by legal practice and legal research, then private practice is more likely your cup of tea. Unfortunately, unless you get to experience both sides, be careful that the grass may sometimes appear greener on the other side. What must guide your decision regarding the career path to choose, is what you want to be doing on a day-to-day basis for the rest of your career. 

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