Recommendations

I've been thinking recently about the role of in-house lawyers and what is expected of us by our business colleagues.

I find that members of corporate legal departements (and, indeed, lawyers generally) resist making decisions. Too often I see young lawyers serving up problems and then running away from decisions. As if they think lawyers have a special status that excuses them from the hard part of business.

One rule of thumb that I live by, and that I push upon the people that I manage, is that in most cases the legal guidance that we give to our colleagues should be accompanied by a recommendation about how to proceed with the business. As in-house professionals, we have the burden of wearing two hats, not only one. When we give legal guidance, we wear our lawer's hat. But inhouse legal professionals also wear the hat of a business executive, which requires that we make decisions ourselves, and, when we are not the decision maker, give real recommendations that help others decide.

For example, suppose an inhouse lawyer is asked by a senior technology executive to explain the process for running a patent clearance for a new product. The question calls for legal guidance of a factual sort. The guidance may be something like: "We would have an engineer work closely with an outside law firm that will research all issued patents that might be infringed by the product and then generate an opinion letter."

The next question from the technology executive might be: "Well, we don't have money for that kind of clearance. What is the likelihood that we will be sued for patent infringement if we just release the product without running it through a clearance process?" The likely legal guidance is something like: "I don't really know. In order to know, we must run a clearance analysis. If we roll the dice and just go for it, the company history of releasing new products without patent clearance tells us that we could see a patent lawsuit."

Obviously, this answer gives the technology executive nothing to work with. So, he asks: "What is the risk?" What is the likelihood that we will be sued?"

At this point, many lawyers will repeat what they said the first time: "I don't know. We need more information." I see lawyers get into this position often. We sometimes can't measure risk very well because we cannot reasonably determine the liklihood of a harm. The inexperienced lawyer stalls out there and can't move past the "I don't know the risk" answer. But this is not good enough.

The more experienced lawyer will acknowledge that it is difficult or impossible to measure the likelihood of a bad thing happening. But she will not stop there. She will move the conversation forward by taking off her lawyer's hat, put on her executive hat, and make a real recommendation. For example, by saying: "Look. I can't tell you the likihood of getting sued for patent infringement. I can tell you that we run those clearances as a matter of process and we still sometimes get sued. I can also tell you that I know that other companies in this industry do not run patent clearances of new products, so just going ahead without a clearance is not an unreasonable thing to do. Since I understand that the product you are going to release is an extension of an existing product line and that it fits within the core existing business, I recommend that you move ahead without a clearance."


The point here is not whether the lawyer gives the business executive the answer he wants to hear. The recommendation could have been to hold the product release until a clearance is run.


The point is that when you are an in-house legal professional you are two things. You are someone with a particular expertise, in the case above, a working knowlege of intellectual property law. You are also a businessperson who makes recommendations and decisions. It is far too easy for legal professionals to serve up the problem and then run from the decision that must be made. Everyone within a corporation must make decisions and make recommendations about how the business should be operated. No one individual in a corporation has complete wisdom. Everyone matters and should pay a role.