Privilege Is Under Attack--Perhaps Not--You Are Under Attack And Only You Can Stop It.
In Susan Hackett’s blog on the Textron case she states that the privilege is under attack. Let me suggest, at the risk of inspiring disagreement from Steve Bokat, that what is really under attack is the notion that in-house counsel is really practicing law. Susan says as much:
Can anyone out there honestly believe that this case would have been so decided or made it to the US Supreme Court as an ongoing debate if the lawyer providing the advice was an outside lawyer and not an in-house lawyer?
(emphasis added)
You see, if we win we will not have won the debate and the debate will continue because the very brief ACC filed in the Supreme Court undercuts our position. Did I read the brief? No. How can I make such a claim then— because I read what counted— the signature line— and looked at who was Counsel of Record and it was not in-house counsel. And even though Susan was key to the preparation of the brief at the Supreme Court, no one will believe it. If Textron’s in-house counsel was Counsel of Record, Susan’s role would be perceived differently.
The First Circuit opinion is worth a read because it is clear that they did not believe that there was serious anticipation of litigation—the unwritten reason because if you had you had brought in your real trial lawyers—in their mind just routine stuff was going on. Not only is Susan right the result would have been different if it was outside counsel; it would, I suggest, also have been different if Textron in-house lawyers had argued the case.
The other reason we cannot win in court is because this debate has been going on for as long as I have been in the practice of law; I have heard it in my company when business people make comments about who are the real lawyers. And it is a debate that has been going on in ACC since the very beginning—do we do it ourselves or do we let outside counsel do it—those lawyers out there who are always willing to lend a helping hand, but at a cost whether you want to admit it or not. When they co-author an article in the Docket, no one really believes the in-house lawyer really had anything to do with it whether she did or not.
We have a serious image problem and the first step to fixing it is not a favorable decision by the Supreme Court, it is to admit it is there. The second step—is to go on the wagon.
Larry Salibra was a truly unique in-house counsel, litigating cases across the country from state trial courts to the U.S. Supreme Court, usually without any assistance from outside counsel. But his experience left him with a jaded view of what the rest of us, who only rarely saw the inside of a courtroom, did on a daily basis; a view that I suggest is as narrow minded as that expressed by the First Circuit.
Larry is, in essence, saying that our day-to-day duties are not what "real lawyers" do and therefore that the litigation risks assessed by these lesser beings are not entitled to the protection of the work product doctrine.
Why should the value of the assessment of the in-house counsel be any less because ACC's brief was written by a retained counsel? Frankly, many in-house counsel do not have the time or experience to write a Supreme Court amicus brief. It does not mean they are lesser lawyers, nor does it mean that their assessments of litigation risks expressed in internal memorandum are any less worthy of work product protection that if they did draft Supreme Court amicus briefs.
Finally, I must admit to not understanding Larry's closing remark about "going on the wagon." Perhaps he means a wagon to the courtroom. But we are just as worthy as lawyers whether we are on Larry's wagon or not.
Steve is incorrect in his conclusion that I believe that many day to day duties of most in-house counsel is not real legal work. Although I did have an unusual career, I also did a lot of the more usual tasks of in-house lawyers, drafting contracts, buying and selling businesses, etc. However, I did these tasks largely on my own and accepted full responsibility for the quality of the work. Whether we would like to admit it or not, there are those among us whose primary skill is to speed dial outside counsel. Whether they chose that role, or as some of my former colleagues in affiliated companies had that role imposed upon them; they perpetuate a stereo-type in the profession.
Steve asks why a a case argued by in-house lawyers that they are lawyers doing real work is more valuable--because it is more persuasive. Why is having a African American CEO testify that the company does not discriminate better than a Caucasian CEO? Should the value assessment as Steve notes be different? From a purely academic point of view, perhaps not, but from the level of visceral persuasion, it clearly is more persuasive.
My attempt to use the metaphor of falling off the wagon is simple. In-house counsel have a stereo-type problem. They,at least in my view, have been attracted by the ease and simplicity of having work done for us, a bit like the alcoholic finds easy escape from his problems in a bottle--but it never solves the problem; it just makes it worse. It is the debate that has continued in ACC from the beginning and I encourage anybody with a view to share them with us by posting a comment.