in-house counsel

Ten Things: How In-House Lawyers Can Survive and Thrive in Times of Uncertainty and Change

I do a lot of speaking with and presenting to in-house lawyers and legal departments.  It’s something I really enjoy doing because I get to share my “wisdom” with everyone (which is just a fancy word for “oldness”).  By this I mean I have been around a while and have spent most of my working years as an in-house lawyer.  And, like anyone who has completed the solar elliptical as many times as I have, I’ve dealt with a lot of different things as an in-house lawyer – some good, some bad, and some still defying categorization years later.  On the bad side of the continuum, I was there for the first internet tech bubble (and the second), along with the mortgage meltdown crisis.  I was in the travel business right after 9-11.  I have been through natural disasters, multiple layoffs, budget cuts, reorganizations, mergers, acquisitions, sales, going private, going public, and all the rest of it.  I oversaw bet the company litigation, where literally the livelihoods of 10,000+ employees depended on my team not losing a piece of litigation.  And most terrifying, I had a front-row seat for the incredibly shitty ending to Game of Thrones.  That is a season of television I can never get back.  Damn you, HBO.  Damn you to hell!  Sorry, I got off on a rant there.  Allow me to (cough) refocus.

So, here we are again.  Things feel shaky with the economy and there is a good bit of unease out there in the business world and, therefore, in the in-house legal departments that serve those businesses.  I wrote about some of it last month in my post on things to watch out for in 2023.  But even more so, over the past few months, I have been consistently asked to talk about/present on how in-house lawyers can succeed in an environment of change and uncertainty.  So much so that a couple of nights ago (as I was NOT watching HBO), I started putting some real thought into the question and realized that I have a lot to say about it (shock!).  So, this edition of “Ten Things” will discuss some of the things in-house lawyers (and legal departments) can do to survive and thrive in times of change and uncertainty:[1]

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Ten Things: The Art of Delivering Bad News

Most days being an in-house lawyer is a pretty good gig.  It has certainly gotten more demanding over the last ten years or so, but there have been corresponding gains in both compensation and prestige.  Those do not always offset the increase in expectations, but they are pretty nice!  When things are good and the relationship with the business is productive, your days are busy but manageable.  And when you get to deliver good news to the business, things can really take a positive turn.  Everyone likes to give and get good news.  Unfortunately, unless you work in a very magical, wonderful place, not all the news in-house counsel must deliver is good.  While hopefully infrequent, there comes a time when all in-house counsel must deliver bad news.  And, depending on the content and context, this can be both a painful and scary proposition.  Believe it or not, there is an art to delivering bad news.  For some, it’s instinctive.  For others (yours truly included) it must be learned.  This edition of “Ten Things” will walk you through the art of delivering bad news:

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Ten Things: In-House Lawyers and Imposter Syndrome

A while back, I wrote about how in-house lawyers can reduce stress in an otherwise pretty stressful job.  I picked the topic because it was an issue that had come up several times when speaking with in-house lawyers.  I am going to continue that trend and take up another topic that comes up frequently.  The topic is “imposter syndrome.”  I can imagine that a lot of you reading this instantly took note and said, “I know exactly what he means!”  Others may be thinking that I am going to discuss all those cool fake masks in the Mission: Impossible movies.  Regardless of which side of the line you fall, it is an important topic and one worth discussing because, as you will see, almost everyone deals with it at some point in their career.  I certainly did.  The important thing, in my opinion, is recognizing what’s going on when it hits and knowing how to escape its clutches.  This edition of “Ten Things” does just that, i.e., what is it and how do you move past it:

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Ten Things: An Index to All the Posts (November 2014 – February 2022)

Howdy, everyone!  Greetings again from Texas.  It’s been a while since I last did an index to all of the posts in the “Ten Things” blog.  Since the last one (July 2020), we’ve added over 1,300 new subscribers and we are now over 5,400!   And we are well into year eight of the blog.  All of which just absolutely, positively blows my mind.  A huge “thank you” to all the loyal readers out there, especially to those who pass along the blogs to friends, colleagues, and on LinkedIn.  That said, I know it can be a pain in the ass to wade through all of the blogs and try to find what you’re looking for.  So, for all of you new kids and for you crusty veterans, this index post is long overdue.  I may get around to putting an index on the site, but if you saw my desk, you’d realize just how much of a pipe dream that is.  I do have a new blog ready to go, but have decided to publish it next month and we’ll put the “act” back into “practical” (man, that sounded way better in my head).

This edition of “Ten Things” sets out – in chronological order – all of the “Ten Things You Need to Know as In-House Counsel” blogs, from the November 2014 introduction to last month’s post on building your executive presence in-house.  It was fun for me to look back through these.  I found a few surprises that made me go “when did I write that?” and “why do I have so much free time?”  The first ones are a little rough, but I got better – I think.  You be the judge:

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Ten Things: Essential Issues for In-House Counsel (2022 Edition)

Hello everyone and hello 2022!  If you are a long-time reader of the blog, you know that I like to start off January with a list of issues I believe in-house lawyers should pay attention to over the coming year.[1]  This is something I did every year as general counsel at several different companies.  Basically, I kept tabs on developments, trends, issues (or whatever) that I thought would have the most impact on the legal department over the next 12 months or so.  I did this by speaking with in-house lawyers and outside counsel, reading newspapers, blogs, reports, attending conferences, sitting in on meetings within the business, asking business leaders at the company, asking my team what they were seeing, and just generally paying attention to what was going on around me.  Once I spotted a potential issue, I looked at it and asked one simple question: How might this affect the company and the legal department?  Answering this question meant I had to understand the company’s goals and strategy so I could spot and manage risks (and hone my ability to be a more strategic partner to the business).[2]  Of course, it helps to be naturally curious about what is going on around you and be thirsty for information.  Information is gold to in-house lawyers (see my post Ten Things In-House Lawyers Should Read Every Day).  From there, I made a list of issues and worked them into the goals and activities of the legal department.

In my new book, Showing the Value of the Legal Department, I set out a checklist to help in-house lawyers quickly analyze potential risks (risks being potentially both negative and positive, e.g., taking risks can lead to positive results).  Here is a version of that checklist, and it’s a helpful filter when you look at things coming across your desk day in and day out:

  • Is this a risk that can create or destroy value?
  • Could this be a game-changer and how so?
  • Is this something a regulator might care about/criminal?
  • Could this make customers or vendors happy or upset/litigation?
  • If it becomes public or goes “badly,” will it damage our reputation? 
  • Is this covered by a specific law or regulations/does it comply? What’s the downside?
  • What will our competitors do? How should we respond?
  • Have others had problems or success with this before/lessons already learned? 
  • Could this hurt someone (e.g., physical, safety, environmental mishap, reputation)?
  • Is this an opportunity for the company and, if so, who needs to know?

It’s not perfect, but it works.  You are welcome to use it, create something similar, or laugh at it.  Your call.  All I know is that it helped me quickly sort through what mattered and what did not.  I still use it.  But enough background.  Time to get on with the show and another year of Ten Things You Need to Know as In-House Counsel (pause for very mild applause…). Here is my list of critical issues in-house lawyers should pay attention to and plan against for 2022:

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Ten Things: Ransomware – What In-House Counsel Need to Know

Back in January, I gave my list of essential issues for in-house counsel to pay attention to in 2021.  One of the items I listed was “phishing.”  Unfortunately, I was right to highlight it.  Phishing has been a hot topic in 2021.  More alarming, however, is that phishing’s good buddy ransomware has become an even bigger issue for in-house lawyers.  In the first half of 2021, ransomware attacks are up over 148% (with more attacks than the last ten years combined!).  The average ransom is now $200,000-$300,000 (with demands now exceeding $10,000,000.00) and businesses are down an average of 21 days whether they pay the ransom or not!  I don’t know about you, but being down for three weeks and getting stuck with a $300,000 bill to access my data would be a real problem for most companies.  To make matters worse, bad actors are getting more and more sophisticated, looking for new ways to gain access to corporate information systems.  The good news is that there are things you can do now as in-house counsel to help your company prepare for and limit, or even prevent, a ransomware attack.  Proactive in-house counsel is valuable in-house counsel, so taking steps now is an excellent way to demonstrate the value of the legal department.  This edition of “Ten Things” walks you through some of the steps you can take to mitigate the damage of a ransomware attack:

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Ten Things: The Productive Power of “Little Things”

English philosopher Thomas Hobbes famously wrote in his poem Leviathan that, “Life is solitary, poor, nasty, brutish, and short.” That is a startling clear sentiment, both powerful and scary… Um, sorry. This has absolutely nothing to do with today’s “Ten Things” post. Just got off on a tangent here.  Let me start over…

I have always been able to get a lot of things done in a day.  I never really thought much about it. I just assumed everyone was the same.  Over time I realized that was not the case.  Everyone has a different ability or capacity to get things done in a day or a week or a month.  I just happened to be really good at it.  I was never really sure why.  I certainly wasn’t the smartest person in the room – though I know now that being smart has little to do with it.  It isn’t because my concentration abilities surpass those of mere mortals.  I get as distracted by things as the next person.  Nope, I could never put my finger on it.  Then a few years back I came upon an interview with time-management author Laura Vanderkam.  She led off with this statement, “Small things done consistently add up to big things.” It was literally as though someone had turned on the lights in the room.  I had not been bitten by a radioactive spider. I had no secret superpower.  I had simply stumbled upon the productive power of “little things!”  This edition of “Ten Things” discusses what this is and how in-house counsel can harness it to get things done:

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Ten Things: A Primer on the Work Product Privilege

[I realized too late after my last post that I have surpassed 100 blogs.  Wow.  No celebration but, to be honest, I never imagined I’d write that many when I started “Ten Things” back in November 2014.  But, here we are, all dressed up and lots of places still to go.  So, thanks for reading and keep those emails and suggestions coming!]  

As an in-house lawyer, I was always interested in any legitimate way I could keep information generated by the company or the legal department confidential.  Or, more importantly, out of the hands of our adversaries.  All of which meant I needed to stay on top of many things, from trade secret protection to teaching the business to write smart.  But, as a lawyer, I had a particular interest in how privilege might apply to the materials I – or my team – was working on.  The most obvious was the attorney-client privilege, something I have written about in a past blog and which ranks first on my list in terms of protecting information.  Somewhat less obvious, and not as sexy as its cool, buff older brother, is the work product privilege.   While more limited in the circumstances in which it applies, it is pretty powerful and can save the day when something happens to make the attorney-client privilege fall away.  Kind of how Batman can curb-stomp some villains when Superman’s having an off day.  I think it’s time we gave the work product privilege some love and this edition of “Ten Things” discusses what in-house lawyers need to know about our new, best buddy:[1]

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Ten Things: What to do When Your Company is the Subject of a Government Investigation
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I’ve been around a while and I know from first-hand experience that there is little more disconcerting to an in-house lawyer than being contacted by the government when it starts investigating your company.  It makes your stomach feel like The Hulk has reached down your throat to give your intestines a good squeeze.  What happens in such an investigation, in large part, depends on what’s being investigated and on how you respond. You will know the seriousness of the circumstances fairly quickly, depending on what tools the government uses for its initial contact with your company. Regardless of how it starts, there are many things common to any company’s response to a government investigation. There are several initial questions to ask when a government investigation into your company is launched.  This edition of “Ten Things” explores what to do when the government comes knocking on your door:

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Ten Things: Sexual Harassment Claims in the #MeToo Era

While in-house lawyers are always concerned about sexual harassment claims, the last year or so has provided a loud wake-up call regarding the highly negative impact of such claims on employees and on the company involved.  While women can certainly engage in sexual harassment, the headlines over the last year – and recently with CBS CEO Les Moonves – are littered with deplorable accounts of men using their power to take advantage of female employees.  These headlines follow a sea-change event where sexually-abused and harassed woman are refusing to suffer in silence.  Instead, beginning with the downfall of movie producer Harvey Weinstein in late 2017, they are coming forward in waves with their stories, bringing with them a glaring hot spotlight on the darkest corners of corporate offices all over the world.  This is the #MeToo era.

While the news headlines tend to focus on the misdeeds of the rich and famous, for in-house lawyers the concern is local – but just as important.  The #MeToo movement provides added urgency for in-house lawyers to make sure their company is doing the things necessary to prevent disaster and ensure a safe workplace for women and men.  As usual, dealing with sexual harassment claims in the #MeToo era comes down to getting the basics right.  For many companies, it is easy to trace the devastating impact of a particularly damaging sexual harassment claim to two problems: failure to properly investigate and failure to take appropriate action.  This edition of “Ten Things” discusses the key things you should be doing to both prevent sexual harassment from occurring and, if it does, properly investigating and resolving such claims:

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