In-house ACCess : In-house ACCess: Association of Corporate Counsel : ACC : The In-house Counsel Bar Association

Someone tell me I’m having a bad dream and will awake soon.

The greatest gift offered to law firms in the recent economic downturn was the first realistic opportunity in decades to break their own cycle of shame/pain to rebuild their compensation structures. They had the economic justification to cut back on some of their more extravagant hiring practices (like hiring 100 associates each year when they only intend that 20 will make it to partner). As a result of the client-led (r)evolution, firms started to push forward a focus on “value” rather than “prestige” pricing based on top-level comp and regularly rising rates. But now it seems that law firms are turning up their noses and are returning the gift they were given: maybe it wasn’t exactly what they wanted.  

I’ve been hearing rumbles, now confirmed in articles such as this one that firms are proudly announcing that they’re returning to pre-2008 salary levels and upping their starting associate comp back to $160,000+ (and therefore the salaries of everyone up the ladder in firms that still use lockstep comp systems also goes up). Seems that firms are doing gangbuster business “selling” their entry associates’ work to clients — they can’t get enough! Or maybe it’s just that there aren’t enough entry-level lawyers for all the first year jobs that firms have to fill? Not.

Let’s just pretend that this is truly a necessary step for firms (which I’m not buying for a minute); the optics of this are so awful that I’m shocked anyone would want to announce their intentions to raise salaries where clients will read about it. Set aside the issue of whether increases like this will really attract the best associate candidates or only the ones most interested in the money.   Do firms think that raising entry-level salaries and then raising rates to pay for it actually impresses clients? Is this how law firms flex their muscles so we can see how strooooong they are, even if it does nothing to promote their intelligence or value? We at ACC know that too many clients are still too beholden to the “prestige” or legacy factors inherent in hiring the most expensive firms. Sometimes those firms truly do provide great service; but an increasing number of other firms are capable of delivering similar results without the higher costs and clients are more and more likely to try them out. And the latter firms are getting more and more attention — firms that ignore this, do so at their own peril.

Many large firms have been caught for decades in a ridiculous and self-fueled cycle of “Keeping Up With the Joneses”, wherein firm management bitterly complains that while they know their comp systems are not based on sound business principles, they claim to be victims of a marketplace in which they can’t hire anyone worthy of their firm if they aren’t paying more than the other firms in town. Since we see no shortage of smart talent graduating from law school each year, many of us had a sneaking suspicion that the reason the firms kept raising starting salaries was more connected to a decision about what the partners in the firm were making or wanted to make.

In general, I have no problem with firms paying whatever they want for talent, especially lateral talent. Frankly, clients shouldn’t have to be worried about what firms set as their standards for comp if the firm is pricing its services in a manner that the client finds reasonable and valuable. But most firms are about to approach their clients and suggest they need an increase in fees, dictated by rising costs, that they’ve just invented. 

Wouldn’t it be wonderful if more firms adopted a different approach that might include:

1) a commitment to hire new entry lawyers at whatever they believe those lawyers are worth, and they plan to invest in them and train them so that they will succeed;

2) offering new lawyers promotions and higher compensation as they master certain competencies, and that clients thus will not be charged for their services in a manner that is not commensurate with the value of the work they can provide; and

3) a commitment not to raise salaries and therefore costs and thereby request an increase in fees, but rather a commitment to take a page from the client’s business management book, and look for ways to lower client costs by increasing the firm’s efficiency or productivity, or structuring their staffing or costs based on what the client wishes to afford.  

There are a lot of firms out there doing this, and their efforts are far too often not noticed — visit ACC Value Challenge to read about firms that are working hard to do better: And let me shout out a few here that are putting their money where their mouths are in terms of deploying new comp systems that incent value: Howrey, Drinker Biddle, McKenna Long, Valorem, Morgan Lewis, Sutherland, and many more. Have they figured it all out? Probably not and they’ll continue to struggle to get it right. But they’re positioning themselves not just for profitable relationships with their own lawyers and clients, but for long-term success as firms.

To leaders in firms considering whether to return us to the madness of ever-upward-spiraling salaries: Please stop. Your clients know that the emperor has no clothes. Are you really going to tell them you can’t hire talent unless you increase the rates of starting associates in your firm? Clients are watching to see what you do. So I’d suggest this is your chance to lead, rather than claim you have no choice but to follow.

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I grew up a military brat and spent the majority of my life on U.S. Army bases. Uniforms, crew cuts and polished boots were a way of life. My dad’s boots were so shiny that you could see your reflection: To this day, I am still not sure how he performed helicopter maintenance while keeping his combat boots pristine.

An even lesser-known fact about me is that I like to watch war movies. While these movies are not my first pick (I prefer comedy or romance), if the plot is good or based on a true story, I am in. And, if the soldier falls in love — well that’s just blending two great stories.

I am fascinated with the human element of the military. What turns ordinary men and women into leaders? Other than rank and order, what qualities inspire a solider to follow a leader into the trenches during wartime? I often translate military behavior into civilian life: Am I the kind of leader who inspires foxhole followers? Can I spot a potential leader and mentor her so she can rise through the ranks? Am I creating foxhole-worthy leaders?

Identifying leaders is not an easy task. Common traits exist, but execution styles vary. Success is often open to interpretation. But one thing is consistent: one generation paves the way for the next. So, it is our responsibility to seek and develop the next generation of leaders.

This month’s cover story, “Developing Great Minority Lawyers for the Next Generation” offers diversity solutions. If you want to lead the conversation, this is an article to share because it offers solutions and tactics for corporations and firms. The next generation of lawyers and the leaders who rise to the top don’t appear spontaneously. You have to take the time to mentor them.

But even the best leaders and military officials face the reality of a finite career. “In-house Counsel’s Guide to Litigating Age Discrimination Discharge Cases” reminds us that no matter our place on the corporate ladder, we age. In our transition from mentee to mentor, we do not want to be professionally cast aside simply because of the date on our birth certificate. Learn how your company can avoid this. And if it’s too late, find tips to litigate as both plaintiff and defendant.

No matter how you slice it, lawyers are simply mortal men and women trying to accomplish their company’s mission. What kind of leadership qualities do you look for in a potential boss? Are you exhibiting those qualities in front of your staff? For those interested in the CLO career path, ACC’s CLO Community is a good place to start your research and find advice from experienced leaders. For the rest of you, remember the military trench mentality: Are you foxhole worthy?

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Picking the metrics that matter

Week 4. Each week via the In-House ACCess blog, follow the promise and pitfalls of forming a new value-based client-firm relationship. ACC Value Challenge steering committee member Ken Grady, General Counsel and Secretary of Wolverine World Wide, offered to profile his selection and start-up process of launching a trademark portfolio management engagement with law firm Seyfarth Shaw. Ken's co-blogger is Lisa Damon, a member of Seyfarth's Executive Committee and leader of the firm's efforts to incorporate Lean Six Sigma into its business. To catch up on the story so far, click here.

The client side

From Ken:

Now to metrics. To get Lean, you need measurements. When I did Lean in the manufacturing world (I ran a large plant), we measured productivity (revenue per hour worked), quality, safety, and orders complete and on time. Easy on the shop floor, but how do you measure legal work? 

Many lawyers argue that legal work is bespoke – each matter is custom designed to fit the facts and circumstances of the occasion. That, my friends, just ain’t so. (Richard Susskind does a nice job of explaining this in great detail in his book, "The End of Lawyers"). These posts are about our trademark story, so I’ll stick with trademarks but the same analysis could be used for any legal project (and by the way, Lean works on the one, multi-year litigation matter, just as well as it works on the 1,000 slip-and-fall cases). 

I divide legal work into two categories – industrial services and artisanal services. Industrial services are commodity services, such as trademark applications. We do lots of them and they typically involve the same steps each time. We want to do these as efficiently as possible to keep the costs and the time to issuance low and brief. Artisanal services are custom (to a degree), such as an opposition matter before the Trademark Trial and Appeal Board. While artisanal services have more custom steps, there still is a lot of room to make them efficient (just because a tailor makes a suit that fits only you, it doesn’t mean he has to do so inefficiently). 

We need metrics to measure both the industrial and artisanal trademark services. We need to measure today, and then to measure in the future, to determine how much we improve. Ideally, we want quantitative metrics. We need to measure them periodically (in the plant, we measured daily but for this project, monthly, quarterly and annually should work). We also want at least some metrics that tie back to our business objectives. Efficiency is great, but having a very efficient trademark portfolio that doesn’t do much for the business makes no sense.

The Seyfarth team pulled together some draft metrics. I’ll let them tell you about the ones they proposed. I put together some alternatives. Remember, there are no perfect metrics. They all have flaws and we can manipulate them. The goal is to pull together metrics that will help take inefficiencies out of your processes and measure whether you are increasing the value of your processes.

Here are just a few of metrics that I proposed (in no particular order):

• Trademark Risk Rate (total dollars spent defending trademarks, divided by total number of trademarks defended)
• Counterfeit Recovery Rate (total dollars spent on anti-counterfeiting actions, divided by total number of units seized)
• Specimen Response Productivity (days from first request for specimen to receipt of acceptable specimen, divided by number of trademarks for which specimens requested).

Tell us what you think. 

Next: The mother metric and starting the leap: metrics to fees.

The firm view

From Lisa:

As we have been on our Lean journey, we have come to understand and even embrace metrics. Measuring performance and rewarding internal teams can allow you, as the in-house client -- to bring laser-like focus on what you value in your business. There is much truth to the Tom Peters maxim, "What gets measured gets done."  Historically, in firms, internal metrics focus on hours and realization, and when we work with clients, it is often (and sadly) just cost.

When you start to expand your definition of metrics, however, amazing things happen.

To see the power of this, pick something you value. In a litigation, it may be something as simple as comprehensive early case assessment being performed in all matters within 45 days of filing. It might be resolving a matter under a certain number by a certain date, or it may be winning a trial while staying on budget and keeping your business folks engaged and satisfied. (See what fun this is? You can have it all).

Once you start with what you value (and it can be several things), then step back and design the metrics. Our friend, Jeff Carr, has worked his terrific FMC ACES model so that he can do this in a systematic way across the spectrum of legal services, but you can employ simple value-to-metrics steps on any matter.

As I mentioned in last week's post, we often start with cost and satisfaction/quality (we love the components of the ACC’s Value Index), but then we try to work with more specific measures, tailored to the individual client. Ken led us into this discussion beautifully -- but then pushed us even further. As you can see from Ken's post, we are right in the middle of this discussion now.

We initially proposed three buckets of metrics: transition-related (we were taking over a very large trademark portfolio), ongoing metrics and qualitative measures. Here are a few of the overall categories of metrics we proposed:

• "Success" rate, measured by things like first action allowance, watch hit outcome
• Overall satisfaction
• Timeliness of communication
• Effectiveness of "lessons learned" sessions
• Strategic participation/understanding of Wolverine business
• Proactive issue identification
• Budget variance
• Cost management effectiveness

When we got Ken's metrics back, they pushed into far more creative thinking. Internally, we are now thinking through how we approach fees that are tied to a client's business performance - we know it makes sense from a "value" perspective but how to get there is key. it is certainly not the norm for the law firm world.

Please let us know how you have used metrics. What works for you? What has not worked? Thoughts on different metrics that the Wolverine/Seyfarth team should use?

Next post: Responding to Ken’s ‘mother metric’

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Determining the metrics of ‘value’

Week 3. Each week via the In-House ACCess blog, follow the promise and pitfalls of forming a new value-based client-firm relationship. ACC Value Challenge steering committee member Ken Grady, General Counsel and Secretary of Wolverine World Wide, offered to profile his selection and start-up process of launching a trademark portfolio management engagement with law firm Seyfarth Shaw. Ken's co-blogger is Lisa Damon, a member of Seyfarth's Executive Committee and leader of the firm's efforts to incorporate Lean Six Sigma into its business. To catch up on the story so far, click here.

The client side

From Ken:

We built a relationship and chose the law firm, and we haven't talked about fees. To discuss fees, we also should discuss metrics. This will probably take a few posts, so bear with us. I'm going to start by stepping back and getting philosophical. When I talk about value fee relationships, part of what I'm talking about is a way for the company to lower its costs, and the other part is for the firm (and the company) to become more efficient. I want the firms to be profitable, and I think they can be just as profitable working efficiently as working inefficiently. The following example might help: 

Suppose a firm will bill for 12 hours at $300 per hour, for a total of $3,600. Let's assume the firm could do the same quality work, but do it in 6 hours rather than 12 hours. If the firm charged $2,400 for 6 hours, I would have saved $1,200. The firm would have been paid $2,400 for 6 hours, versus $1,800 for 6 hours under the old arrangement. The firm also “saved” 6 hours and can use those hours as it wants: work for another client and be paid another $2,400 for 6 hours (a total of $4,800 for 12 hours versus the previous $3,600 for 12 hours), or maybe work the associates less and only use 3 hours (putting it at $3,600 for 9 hours versus the prior $3,600 for 12 hours).

This all makes sense except for one thing:  How does the firm do the same quality job in 6 hours instead of 12 hours? The answer is to tackle the efficiency issue.  In my opinion, law firms are extremely inefficient (okay, airlines are much more inefficient, but that is a separate story).  Throwing that statement out usually creates some heated discussion.  Many partners tell me about how they work very efficiently.  But, I don't see that lawyers (private practice or in-house) have anything to brag about.

So how do lawyers become efficient?  There are many ways to improve, but the one I find the most sensible and I think works well with the legal world is "Lean" or its hybrid cousin, "Lean Six Sigma."  In simple form, Lean is about removing everything that doesn't add value, leaving only value added steps.  It sounds simple, but Toyota (which has been doing this for almost 70 years) would tell you they are still in the early stages of learning about Lean.  So, how does Lean work in a law firm?  I'm going to let Lisa tell you the story. Lean is important to metrics in our story, because that is how we have chosen to find ways to make ourselves more efficient internally and externally, yet make sure this isn’t something where we benefit at Seyfarth’s expense – we want Seyfarth to benefit from helping us become efficient.  Put another way, efficiency has value to us, and we are willing to pay for that value.

Next:  The metrics story continued.

The firm view

From Lisa:

So how DOES Lean work in a law firm? In many ways, the cards are stacked against it. Lean requires the discipline to step back, look at data, talk to clients, examine root cause and then design a way to work more efficiently -- cutting out steps that don't add value, adding steps that do and re-aligning what remains to deliver superb service that meets the client's definition of value. Read: Do a better job in less time. 

Law firm economics, however, taken to their logical end, incentivize inefficiency. Historically, law firm reward systems relate to more time -- more minutes, more hours, more billings, more money. So, the first paradigm shift you need to make is: Believe that doing a better job in less time makes the clients more delighted (Kano Model for those of you doing Lean-speak), and that more delighted clients means more great work. Lucky for us -- the formula actually works. And any firm can do it -- it just takes investment, discipline and some knowledge.

Second paradigm shift is Lean itself. Cue the eye rolling. We have heard it all -- that’s for cars, not lawyers; process discipline has no place in the art of law; only good for commodity work; too hard; too complex; too simple; too much jargon; just marketing; and, the current favorite, "Look where it got Toyota." There have been times along our journey-in-progress when we have thought each of those things. But, what we are doing is working, and we believe there is a lot that can be relatively easily implemented by all -- large and small firms and legal departments.

Take any project. Let's take a complex litigation. We have invested our lawyer and staff time to study the way we approach different types of litigation -- so we have process maps, technology tools, resource banks, and data we have collected and analyzed from our own work. Doable for any Firm whose partners have a core concept of investment time. So now, a client comes and asks for us to work with them on a piece of complex litigation.

If we were approaching this with a Lean frame, we would spend much more time up front with the client, understanding what they wanted, customizing our process maps (for both the client and the matter), putting a plan into place to execute according to the client's definition of value. We then set metrics to ensure we were satisfying their needs and driving the result.

For instance, we might measure a variety of things . . . Some clients value "cycle time" -- how quickly we can move the case through mediation or to trial; some value results -- a trial win under a certain price or within a certain time frame; others may value a thorough early case assessment or budget predictability. The "voice of the client" provides us with the information we need to decide what Lean tools we will use and how we will measure our performance.

In educating lawyers about Lean, we find it is sometimes better to talk about what it is not -- it is not rigid and inflexible; not about commodity work; not about statistics; and, not confined to an area of practice. For us, the simplest way to approach Lean is to remember that Lean is a way to think, a way to break out of the way we have done things and to look at a problem -- very complex to very routine - differently - and then work to deliver the highest quality, directly in synch with the client's value, at a lower cost.

Being a lean bunch, metrics are a big deal for us -- we love to measure things and look at data (amazing what it often tells you). So we often start by sticking to a few basic measures --lowering cost and increasing satisfaction. When we started talking metrics with Wolverine, we knew they were also a metrics-loving group, but we had no idea what was next. We started by proposing a set of metrics that related to client satisfaction, cost and cycle time.

Next: Ken comes back with a set of metrics far more finely tuned to what he valued. Just wait…math is required.

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To fee or not to fee?

Week 2. Each week via the In-House ACCess blog, follow the promise and pitfalls of forming a new value-based client-firm relationship. ACC Value Challenge steering committee member Ken Grady, General Counsel and Secretary of Wolverine World Wide, offered to profile his selection and start-up process of launching a trademark portfolio management engagement with law firm Seyfarth Shaw. Ken's co-blogger is Lisa Damon, a member of Seyfarth's Executive Committee and leader of the firm's efforts to incorporate Lean Six Sigma into its business. To catch up on the story so far, click here.

The client side:

From Ken:

How do you chose a law firm without talking about fees (and, was I out of my mind)? It really isn't that different from what in-house lawyers did from the 1970s until recently. We talked to our friends, asked for some client references, talked to attorneys at the firm, listened to their speeches, read their articles, and so on. But, when we talked about fees, it was often an awkward conversation about billing rates:

"So, how much do you charge an hour?" 

"Well, I'm at one gazillion now." 

"Ow, that seems higher than where some other firms are at." 

"Of course, for a matter like this, I think I can convince my managing partner to let me go to our discount schedule where I'm at a bazillion." 

"Oh great, that seems more like the market - and the same discount for others on the team?" 

"You bet!" 

We knew the rate, but not how many hours. I didn't look at that as knowing the fee, at least not like I know the fee of the guy who paints my house: "That will be $2,561, Mr. Grady, and that includes whatever wall prep and patching we need to do to give you a great job." (Remember, I'm in-house counsel so we have small houses.)  Now, I know many of you have a more sophisticated approach, but there are still plenty of in-house lawyers for whom the script above will seem all-too-familiar. 

Instead, I employed a "new-old" strategy. I went back to the days where you spent time getting to know your lawyer, made the choice, and then worked out the fees, based on the value you were getting. You chose the lawyer (referral from friends at the club), he did the work, he sent you a bill, and then (for those of you with chutzpah) you discussed adjustments, based on how you perceived the value of the services (for those without, you just paid the bill). Our difference was to meet and talk to the lawyer, chose the lawyer, discuss the mutual value structure, and then re-evaluate as we go along.

So, we met with the lawyers, and met again. We talked by phone, and talked again. We emailed, and emailed again. Overall, we spent about six months in discussions. "We" included all members of my team talking to members of Seyfarth's team, including paralegals talking with paralegals without an attorney. Trademarks are a major part of our practice, so really getting to know the Seyfarth team was important. 

To us, it was important Seyfarth understood our company, its culture and what value legal services had in that culture, and for us to understand how the SeyfarthLean culture would mesh with us. We shared how much we spent on our trademark work and we gave themportfolio information, so Seyfarth could gauge the value of this engagement to the firm.

To me, I would be out of my mind if I didn't build a relationship first, and then look at ways both parties could profit from the relationship.

Next post: Let's talk metrics.

The firm view:

From Lisa:

Ken relayed a typical conversation in house to outside and it resonates in many ways…although 10% off a bazillion is often discussed. Just kidding. Sort of.

On a serious note, we as outside counsel experience a good deal of frustration right now in dealing with the fee discussion. While many clients may express they want to move toward new "value" or an alternative fee structure, in actuality, there has not been much change. Now, the conversation often goes like this:

"Can you do an alternative fee?”

"Of course." [Then we lay out the options - flat, fixed, risk-reward, pure value, portfolio, phased, periodic...]

"Thanks. Interesting. But, you know, those fee arrangements are all well and good, but they [fill in the blank: 'don't fit in our chart'; 'don't let us compare the firms'; 'aren't what we are ready to do yet'; 'are not acceptable to procurement'; 'are scary']. Can you just give us your lowest possible billable rate?"

Ken's approach was so different because there was no fee discussion – really, none at all. The initial focus was on the relationship, the core values and the business fit. Often, in the press to find new business, many of us in outside firms can easily forget that relationship fit is key for us, too. Our best stories have to do with clients that we know, like, trust, understand and vice versa. The cornerstone of trust makes all the rest work out. In these times of a much more business-oriented relationship, that concept may seem old-fashioned, hearkening back to the days of Lincoln and candlelight. In reality, it remains just as true now as it did then. That's why, in retrospect, Ken's approach worked so well.

In his post, Ken talked about the relationship building we went through and the pace we moved. Let me give you context from our side: It was excruciating.

Our team wanted this work so much. We loved the brands, we loved the people, we even looked like the people in their ad campaigns (okay, not the Harley brand). We already wore the shoes (okay, not the Harley brand…yet). Why didn’t they just pick us? Ken told us right up front that he was going to go slowly -- very slowly. He told us that the trust and relationship had to be right, that we needed to be patient. It was hard.

After our first web meeting, we met in person in Michigan. We brought our team, they brought theirs. It was a phenomenal two days. We really liked the people, but what we came away with was an appreciation for the collective passion of the Wolverine groups and what they were doing. We will always remember Ken and his team taking several hours and walking us through the shoes -- every brand, its distinguishing features, its history, and then showing us the signature shoes. We were on our feet, handling the shoes, looking at showrooms and feeling their passion for their company. When it was our turn, we were on our feet, showing our SeyfarthLean and walking through all of the exciting things we were doing. Hopefully, they too felt our passion.

What followed were several months of more meetings and extensive reference checks where Ken spoke to our clients, questioned us on SeyfarthLean, pushed back on the program and challenged our ability to do what he needed. In the end, it worked, and here we are.

Now, Lean Six Sigma. I promised you three painless sentences to set the stage. For the blogs to come, it is important to the story, so here goes:

·       For us at Seyfarth, Lean Six Sigma is a structured data-centered discipline, driven by client requirements, and designed to eliminate non-value-added steps, reduce inefficiencies and improve key components of processes.

·       In a nutshell, it is delivering the highest value services, to ever-more delighted clients at an efficient price, so what’s not to like?

·       At Seyfarth, we follow DMAIC (for the Lean-friendly crowd), but have adapted the discipline for the legal environment – one that is wildly variable by nature and, at a distance, seems to resist any process methodology.

More as we go.

Next post: Ken proposes metrics, and we wonder what we have gotten ourselves into.

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Two ACC leaders were recently honored with top legal industry awards:  ACC’s former board chair, Laura Stein, Senior Vice President and General Counsel, The Clorox Company, is a 2010 recipient of the Margaret Brent Women Lawyers of Achievement Award, established by the ABA to recognize the accomplishments of women lawyers.  In Canada, ACC board member, David Allgood, Executive Vice-President and General Counsel, Royal Bank of Canada, was named the 2010 Canadian General Counsel Lifetime Achievement winner.

Watch ACC President Fred Krebs speak on the qualities that make a good leader in the in-house counsel community and offer congratulations to David Allgood and Laura Stein on their achievements.

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I had the privilege to attend today’s White House announcement of the Supreme Court nomination of Solicitor General Elena Kagan.

Previously, I represented ACC at a White House briefing. The White House also solicited ACC’s input during the nomination process on characteristics we would like to see in a nominee.  Although ACC does not take positions on judicial nominations, these opportunities reflect the growth and increased recognition of the important role played by the association and the in-house legal community generally.

As a lawyer I find events like this morning’s announcement to be very moving given the setting and the importance of the Supreme Court in our daily lives.  President Obama inserted some humor in an otherwise solemn event when he noted that Dean Kagan, if confirmed, will bring a special diversity to the bench; ”she is a Mets’ fan” and Justice Sotomayer, an avid Yankees fan, “has ordered a pinstripe robe” for Dean Kagan.

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The recent volcano that brought air travel to a standstill erupted just as I was finishing a European General Counsel Roundtable in London that focused on “Managing the Global Legal Function in the Midst of Change.” If you are on Twitter, you can see some of my insights here.  From the Roundtable, it became very clear that in-house counsel face the same issues around the world – they just develop different solutions or approaches depending on their particular circumstances.

In the midst of change, the world seemed to come to a halt. As the air travel stoppage continued, it became all about making lemonade from lemons. On the one hand, it was very inconvenient to be here in London for an unplanned six days. Yet, I am reminded that this is one of the great cities in the world and that there are much worse places to be stuck.  
 
Everyone I have encountered during this extraordinary situation has had a great attitude.  As the week wore on, you could sense growing frustration. And, great relief when they opened the airports.  Everywhere you go there are people with their disruptive volcano stories – most of the news here in London is filled with stories about travelers trying to return to UK – remarkable efforts such as hiring taxis or cars and driving from Milan, Prague or even Norway to the channel ports. Gordon Brown (UK PM) who is in a tough reelection fight here sent some ships from the Royal Navy to pick up some folks in Spain.  During this period, it has been interesting to watch the news about the UK election campaign and to compare it to the U.S.  They had their first debate ever among the 3 candidates; they have 2 more planned. There is substantial publicity about the rise of the Liberal Democrat candidate at the expense of the Tories and Labor.
 
The time in London gave us the opportunity to meet with members, including Cheryl Solomon, a UK country rep and Dan Fitz, the former ACC chair. We also had the chance to meet with people at ILO, who graciously provided us with computers and office space that made our time here more productive. We also met with vendors and consultants based in London.

I also took some time to enjoy London. On Sunday, I went to the changing of the guard at Buckingham Palace – nobody does pageantry like the British. There was a brief concert as part of the ceremony and the band played a medley from Chicago and “For Once in My Life,” the Stevie Wonder hit, which seemed a bit out of place!
 
Finally, this volcano time-out afforded me the time to reflect on the importance of members and volunteer leaders who contribute to ACC.  In the U.S., it is National Volunteer Week and I am reminded so often that the strength of our association comes from the commitment and contributions our ACC board, committee and chapter leaders and ACC Docket authors make.  

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I am privileged to travel and meet with CLOs around the world.  I recently
participated in a wide-ranging discussion in Canada.  Some observations:

1.  CLOs just about everywhere (Europe, Canada, Australia, China and the U.S.)
face many of the same issues no matter where they are located.  How they
respond varies depending on their country’s view of in-house counsel as a profession, their seniority in the corporate hierarchy and their own corporate culture.

2.  Internal investigations raise many issues: how do you keep a balance
between due diligence and going overboard? At what stage do you decide you
cannot do it internally and need to go outside for help?  One common thread appears to be that if you potentially have a reportable offense, then you should employ outside counsel.

3.  Along those lines, whistleblowing presents cultural challenges.  For example, anonymous hotlines may work in the U.S. but they remain anathema in parts of Europe because of the connotation with repressive regimes.

4.  Law department structure and reporting lines always present food for
thought: Is centralized vs. decentralized preferable?; Do you embed attorneys within a division or unit but also have them reporting to the CLO?

5.  To what budget do you allocate legal expense? Are outside counsel
expenses charged to the legal or the business unit?  What about legal
salaries and G&A?

6.  CLOs recognize there are many alternatives available to address key issues.
Ultimately, you have to do what works best for your company and its culture.

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Last week, I moderated a General Counsel Roundtable at Georgetown University’s Corporate Counsel Institute, an annual gathering attended by both in-house counsel and outside counsel from around the country.  During our panel, top General Counsel from different industries addressed both the challenges they face and elaborated on some of their success stories.  The underlying theme of the roundtable focused on doing more with less, more efficiently, and with a more business-oriented focus.  I was joined at the event by four General Counsel, each managing their own unique law department: 1) Walter Bardenwerper, Vice President & General Counsel at Watson Wyatt Worldwide 2) Robert Bostrom, Executive Vice President & General Counsel at Freddie Mac 3) Manik Rath, Vice President & General Counsel & Corporate Secretary, Logistics Management Institute and 4) Louis Briskman, Executive Vice President and General Counsel of CBS Corporation.    

Contrary to traditional perceptions, attorneys are not just involved to thwart risk and say “no” to every new idea but rather are fully engaged in the business objectives and can objectively assess potential obstacles.  Manik Rath, GC at Logistics Management Institute reiterated this notion, as he made the case that in-house counsel are uniquely situated to provide strategic insights to help business units prevent problems and add value to their projects.  He has his in-house counsel sit on many committees at the company, not just for legal activities but also for business purposes.  He wants his attorneys to understand the core business and to bring their legal tool kit to these activities to share their thinking and perspectives with other units.

All of the participants acknowledged an ongoing emphasis on cost-savings, as their law department budgets continue to shrink.  To address this reality, Robert Bostrom at Freddie Mac has responded by bringing more work in-house and by reallocating budget to hire contract attorneys in certain instances.  In leveraging its relationship with its outside counsel, one of Freddie Mac’s law firm’s has seconded three attorneys, on salary from the firm, to work on-site at Freddie Mac at no charge to the client as a way of remaining experts in the client’s business even during a downturn.  This farsighted approach provides Freddie Mac with a cost saving service while the outside counsel gains knowledge and understanding of the clients business that should bring future benefits to the firm as well as the client should the economy and client’s budget improve.

Walter Bardenwerper, like many GCs, has taken a fresh approach to Watson Wyatt’s relationship with outside counsel. His law department has started to look to mid-tier and smaller markets for counsel instead of going to the traditionally more expensive firms located in big cities.  Often partners in smaller offices can perform the work needed at almost half the price, with just as much expertise. In addition to the search for quality less expensive legal services, the panel agreed that alternative billing is a consideration but as Lou Briskman (from CBS) said, there is no one-size-fits all for outside legal work.

To search for outside counsel, ACC’s Value Index, a tool for in-house counsel to review law firms and share evaluations, was mentioned as one method.  Other methods mentioned to find a good outside firm are at conferences, where speakers demonstrate their expertise and through referrals and word-of-mouth.

Finally, one of the most effective tools these GCs found in terms of law department success was educating others in their own company about the metrics of success coming from the legal department.  While in the past, preventing legal action has been a challenging benefit to quantify, GCs are now taking the time to collect data to promote their department in terms of proactive business contributions. When Robert Bostrom was asked by a key executive, “What are all of these lawyers doing?,” he instigated a quarterly report presenting specific data on his legal staff’s results – such as number of loans completed, number of board meetings attended, number of documents produced – all of which helped his executives see in hard metrics what they had accomplished. This type of proactive reporting out was embraced by all four participants.

My own takeaway from this discussion is that in-house counsel, now more than ever need to adopt a business approach to their legal work. They must proactively represent themselves -- their business as well as legal acumen -- within their own companies.  In this way, even under the constraints of increasing workload with a reduced budget, they will become true strategic partners with their in-house colleagues and outside firms and will be well-positioned to succeed regardless of when the global economy rebounds. 

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Leadership, like beauty, is in the eye of the beholder.  Sure there are plenty of definitions and many a book has been written and speech given on the subject, but when you ask people, what leadership means to them, you’ll get an assortment of responses.  A recent quick poll of lawyers and others in the legal industry via email and Twitter resulted in the following (140 character) thoughts:

Leadership is …

“Providing direction, setting priorities and creating an atmosphere where people want to follow,” Fred Krebs, President of the Association of Corporate Counsel

“Anticipating, listening, deciding, communicating,” Patricia R. Hatler, ACC Board Chair and Executive Vice President, Chief Legal and Governance Officer at Nationwide Mutual Insurance Company

“A vision of the future, persuading key players to share your view, making sure every decision furthers that view,” Patrick Lamb, partner with Chicago litigation firm Valorem Law Group.

“Doing the right thing even when it's unpopular or unconventional. Especially when.”  Jay Shepherd, attorney with the Shepherd Law Group

"Vision, creativity and perseverance. Trend-setting is NOT the same.” Glenn Manishin, partner with the international law firm of Duane Morris LLP

“Assessing priorities to set a vision, then inspiring others to achieve that shared vision through their own creativity and skills,” Timothy Corcoran, Senior Consultant with Altman Weil.

While similar traits are repeated, it’s often the actions that define a true leader and not the words. Like other subjective categories that lack clearly defined parameters, when speaking of great leadership we can cull from a famous phrase in Supreme Court history and say “I’ll know it when I see it.”

The pressure to “lead” has never been so strong and as everyone tries to keep up with the changes taking place, strong leadership will be the catalyst for long-term growth, stability and success.  Lawyers (both in-house and at law firms), too, are faced with these same pressures - to “do more with less” and to make their practices more efficient while still growing the bottom line.  Overcoming the obstacles and being able to lead so that, as Krebs pointed out, “people want to follow,” will be key to their survival.

But what’s a lawyer to do to stand out from the pack? How will the drive toward being a great leader engender buy-in and lead to success?  Have you assessed your own leadership skills lately?  Are you prepared for the challenges ahead? 

Several sessions during ACC’s Annual Meeting in Boston addressed the issue of leadership, and what struck me was the interesting parallel between effective leadership today versus examples from the past.  Ivan Fong, General Counsel for the U.S. Department of Homeland Security, shared his thoughts in relation to modern-day leadership, while Pulitzer Prize winning author, Doris Kearns Goodwin, offered an historical view of leadership as illuminated in her latest book, “Team of Rivals: The Political Genius of Abraham Lincoln.” The common thread with both was their emphasis on the importance of personal relationships – of caring and listening and a commitment to character - that set true leaders apart. 

At the heart of “Team of Rivals,” was Lincoln’s ability to “bring people together” and his success, as Goodwin explained, was “the result of a character that had been forged by experiences that raised him above his more privileged and accomplished rivals.”  Those around him would be hard-pressed to be mad at Lincoln, because inevitably, his power, his charm and his intelligence would bring people around, to be an ally. In some instances, this means taking charge, by letting go.

If you are, or have been, in a leadership role, then chances are you have had to deal with people who might not agree with your decisions.  Great leaders don’t lead by trying to make everyone happy. Instead, they bring them into the process.  As Harvard’s president, Drew Gilpin Faust, aptly pointed out in a recent New York Times interview, “if people feel they were listened to, that their views were taken into account, that they had a chance to show you the world from their point of view, they’re going to be much more likely to go along with a decision.” 

The ability to engender trust, Fong explained, was at the core of being not only a good lawyer, but also an effective leader.  Specifically, “The hallmarks of being a good lawyer – the foundations on which everything is based – are the quality of the legal analysis, integrity, responsiveness, sound judgment and the ability to be a trusted advisor, all of which translate well into the public sector.”

In discussing “leadership imperatives,” Fong emphasized the importance of “beginning with the end in mind” and articulating a clear vision and compelling purpose for the organization.  A team, to be effective, needs to have a common understanding of “Why do we exist?  Where are we going?  And how are we going to get there?”  The shared mission, vision, and strategy, Fong explained, helps to inspire trust and engagement.  Regaling the possibly apocryphal story of a General’s encounter with a janitor in the halls of NASA during the 60’s, Fong explained that when the General asked the janitor what he was doing, the janitor replied, “I’m helping to send a man to the moon.”  A leader’s ability to communicate a compelling purpose – a shared vision – can inspire the entire organization to be right there with you.

Fong, like Lincoln, embraced the notion of “meeting people where they are,” of putting himself in the place of others and listening to those around him. By meeting regularly with his staff, learning about the processes already in place and gleaning insight from his direct reports, he has been able to set an agenda and establish clearly defined goals. “It’s not about working harder, longer hours,” Fong explained, “it’s also about stepping back and looking at how we do what we do and how can we stop doing things that no longer provide value.”

Using the example of a marathon, where the early runners cross the finish line before others even begin, Fong illustrated the importance of going back and putting yourself in the position of someone at the beginning of the race. Communication, another leadership imperative, can’t be emphasized enough in this regard. It’s vital for successful execution; and every organization needs it.

Goodwin, in describing Lincoln, believed one of the best indicators of a good leader was, “being able to motivate during frustration,” and in harmony with this sentiment, Fong noted, "You can tell the health of an organization by the quality of its arguments.”  These traits - overcoming obstacles and being able to lead in the midst of conflict - are vital for today’s leaders. The ability to ride out the economic waves of uncertainty, while maintaining control and respect, will propel the great leaders ahead.

Challenges, as Fong described, are where “what you do know and what you don’t know intersect.”  As a leader, you are tasked with uncovering the known and unknown and then tapping into the wisdom of those around you to help get the job done. Fong recalled his “A-Ha” moment when he realized that, while he couldn’t personally manage and lead all 1700 lawyers in his department, he could lead those lawyers within the top one or two layers, and influence their own leadership abilities.

Whether it’s gleaning insight from Fong or relishing Goodwin’s historical retrospective on Lincoln, much can be gleaned from the great leaders of today and those of the past.  Each of you will have your own style and approach, but ultimately, it will be your ability to connect with those around you - to engender trust and respect - that will be key to your own personal success as a leader. 

As you evaluate your own leadership traits, ask yourself if you are applying successful principles from the past for effective leadership today.  Specifically:

1. Are you fostering an environment of teamwork?

2. Are you addressing those that disagree with you in a way that leads to mutual understanding and buy-in?

3. Are you communicating a plan (your vision) effectively?

4. Are you evaluating processes and identifying opportunities for better alignment and efficiency?

5. Are you putting others’ interests ahead of your own?

6. Are you praising others for their contributions?

7. Are you treating everyone – at all levels – with the same respect?

8. Are you paying attention to suggestions & facilitating implementation?

9. Are you demonstrating trust, honesty and integrity?

10. Are you able to take charge by letting go?

Remember, leadership is in the eye of the beholder, and it will be the feedback and opinions of those around you that really matter. As someone that has had the privilege of getting to know Fong on a personal level, I can attest to his uncanny ability to engender trust and buy-in from those around him. Fong’s remarkable compassion, inherent interest and ability to lead in a collaborative environment are great qualities we can all learn from. And, as I have observed from my own interaction with Fong, when I encountered this great leader, “I knew it when I saw it.”

###

Susan E. Jacobsen, President of LUV2XLPR, Inc., has over 15 years of experience assisting in-house counsel, law firm attorneys and corporate executives with strategic communications initiatives.

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 Each year, as ACC’s Annual Meeting concludes, I’m always struck by the interesting and substantive new information I discover.  Inevitably, people say things - or I observe or participate in events - that leave me with much to think about.  This was my 18^th annual meeting and it was no different. Throughout our time in Boston, I continually encountered such instances among our 2400⁺ attendees that, I believe, contributed to the success of this gathering of in-house counsel from around the world.  

Leadership, education, collaboration, support, relationships and value, all contributed to a successful conference, which I tried to capture in these Random Observations…

·        As she shared her lifetime of studying and writing about great leaders, Pulitzer Prize winning author, Doris Kearns Goodwin, presented a captivating tale of personal observations and what we could learn from the great leaders she had studied. I, like everyone in the room, hung onto her every word and was drawn into her uncanny ability to “tell a story” and describe the research that went into her book, Team of Rivals: The Political Genius of Abraham Lincoln.  So much of what she discussed about the politicians and historical figures translated seamlessly to the legal community.

“Lincoln’s success was the result of a character that had been forged by life experiences that raised him above his more privileged and accomplished rivals.”

“The best indicators of a good leader – being able to motivate during frustration.”

~ Doris Kearns Goodwin, Pulitzer Prize Author

 ACC’s 2009 Annual Meeting Keynote Speaker

I say without hesitation—read this or any other book she has written!

·        Ivan Fong, former ACC Board Chair, who recently became General Counsel for the Department of Homeland Security, provided a captivating account of his transition to the public sector, with particular emphasis on the qualities of effective leadership.  His candor and honesty were both insightful, as well as refreshing to hear, in light of his high-profile role with the third largest government agency.

“The hallmarks of being a good lawyer – the foundations on which everything is based – are the quality of the legal analysis, responsiveness, sound judgment and the ability to be a trusted advisor, all of which translate well into the public sector.”

"You can tell the health of an organization by the quality of its arguments.”

~ Ivan Fong, General Counsel of U.S. Department of Homeland Security

Chair’s Choice: A View from the Frontlines

·        Earlier this year, we were saddened to learn of the passing of Robert Banks, Sr., an extraordinary in house counsel for Xerox and the leading founder of ACC. He gave us a great gift and he gave us all an organization that permits us to change and improve our profession and ourselves.  

“For his beliefs and advocacy, we all owe Bob an immense debt of gratitude.”

~ Carl D. Liggio

Founder and 1984 ACC Board Chair

Because of his unyielding support of ACC, it is only fitting that we honor Bob with the ACC Robert Banks Memorial Scholarship Fund, starting in 2010. This scholarship will help support those members who are in transition or need additional support to attend future Annual Meetings.

·       During an engaging discussion of CLOs, opinions were exchanged and suggestions were offered, and I was intrigued by the frankness and insight offered.  Much of the discussion related to the changes occurring among in-house counsel and their relationships with their outside lawyers and the billable hour.  Unlike similar discussions of the past, where everyone just cited problems, here, the CLOs offered tangible solutions and discussed what they have begun to implement to help affect change.

“Meet. Talk. Act. – from the ACC Value Challenge – gives us all a good framework to use … we need to get together with our outside counsel, open the dialog and start doing things.”

~ John Page, Vice President, GC & Corp. Secretary, Golden State Foods Corp.

Chief Legal Officer Roundtable Discussion

“What we’re learning is how to use alternative fee arrangements – when do they work and make sense? More and more there will be categories of matters where alternative and flat fee arrangements are more accepted – it’s the law of supply and demand – some are cyclical and some are secular.”

~ Marc Gary, General Counsel, Fidelity Investments

Chief Legal Officer Roundtable Discussion

·        As I made my way though the Exhibit Hall, and observed the interaction among the over 100 exhibitors and the attendees, I understood what many in-house counsel had told me, that they liked the positive, controlled environment.  Members feel this provides them with a “one-stop shop” to speak with legal industry providers and hear about the new resources and services available to them.  The exhibitors, too, were engaged and I was happy to hear a number of positive comments.

“We were very happy with the event. We met a lot of attendees and got to speak to them about their needs and how we can help.”

 ~ Ian Nelson, Vice President of Business Development & Marketing, PLC

ACC Alliance Partner/2009 Annual Meeting Exhibitor

“Everyone has been really engaged and interested …this has been really helpful for our attorneys, to see the number of in-house counsel in attendance and to interact with our clients that are here.”

~ Felice Wagner, Chief Client Service Officer, Sutherland

First Time 2009 Annual Meeting Exhibitor

·       Efficiency, value and cost containment were repeated throughout the conference, both in sessions and during one-on-one conversations, as everyone shared and gleaned insight on streamlining processes without cutting quality. During the session, “The Slow Motion Riot – Revolutionizing Law Department Cost Management,” law department leaders and law firm management discussed the ACC Value Challenge and how the initiative could help to support their efforts.

“Value Day - August 24 - the day the Wall Street Journal covered alternative billing on its front page."

~ Jeffrey Carr, Vice President, GC & Secretary, FMC Technologies, Inc.

The Slow Motion Riot – Revolutionizing Law Department Cost Management

“Value means more than price for legal services – what more do we want from our relationships – CLE, top of mind advice, brainstorming….”

~ Bruce Goldberg, Managing Counsel, Allstate Insurance Company

The Slow Motion Riot – Revolutionizing Law Department Cost Management

“Profit is variable; what is valued is continuing relationships maintained through continuing relationship reviews.”

~ Stuart Pape, Managing Partner, Patton Boggs LLP

The Slow Motion Riot – Revolutionizing Law Department Cost Management

"Once you decide to go down this path, there's only one question you need to ask law firms, Will you do this? Yes or no. If they say no, they are free to work elsewhere. Draconian? Yes. Effective? Absolutely. But it does take some backbone."

~ Jeffrey Carr, Vice President, GC & Secretary, FMC Technologies, Inc.

The Slow Motion Riot – Revolutionizing Law Department Cost Management

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ACC’s Annual Meeting in Boston might have kicked off on Sunday night, but things really got underway on Monday as thousands of in-house counsel arrived at the Hynes Convention Center to register and begin their immersion into what brought them together: learning, engaging and sharing. Having been involved with past meetings, I was struck today by the upbeat demeanor, levity and humor interspersed throughout the sessions, in the exhibit hall and with members and sponsors chatting amongst themselves. At a time when negative news seems to own the limelight, the positive, good-natured vibe was a much welcomed change.

A real treat of the day of the day (and likely to be one of the highlights of the conference) was Chair’s Choice: A View from the Frontlines, which gave attendees the unique opportunity to hear from Ivan Fong, former ACC Board Chair and currently the General Counsel of U.S. Department of Homeland Security (DHS). Fong’s first-hand account of transitioning from General Counsel at Cardinal Health to one of the largest government agencies was both captivating and insightful. He shared how managing the many hundreds of lawyers and issues at DHS were similar, as well as different, from managing lawyers and matters in-house at the companies he previously worked for. Most notably, Ivan noted that the “hallmarks of being a good lawyer – the foundations on which everything is based – were the quality of the legal analysis, responsiveness, sound judgment and the ability to be a trusted advisor, all of which translate well into the public sector.”

Fong’s candidness and honesty provided everyone with a snapshot of his day-to-day activities, as well as his long term goals for success. The session was so fascinating that it warrants its own detailed summary (To be posted on In-House ACCess following the meeting.)

The day’s luncheon, sponsored by Lex Mundi, drew a packed room to join ACC President Fred Krebs in welcoming in ACC’s new Board Chair, Pat Hatler, and new Board members, Sabine Chalmers, Chief Legal and Communications Officer at Anheuser-Busch Inbev; John Page, Vice President, General Counsel and Corporate Secretary from Golden State Foods; and Norman Wain, Vice President, Corporate Legal Affairs and Assistant General Counsel at the Finish Line. 

Krebs explained that each year in lieu of speaker fees, ACC contributes to a worthwhile charity, and this year a $5,000 donation was given to Camp Letts, a YMCA summer camp that serves youths from the inner cities of Washington, DC and Baltimore. 

Krebs also reminded everyone that, “Last year at this time, we predicted we would be at the 25,000 member milestone and I am happy to say we have reached that threshold. This year has truly exceeded our expectations on many fronts.”

He went on to acknowledge ACC’s two new chapters – the South Carolina Chapter and the North Florida Chapter, bringing the association to 51 chapters in more than 70 countries with members who represent over 10,000 organizations.

On a solemn note, earlier this year ACC was saddened to learn of the passing of Robert Banks, Sr., an extraordinary in house counsel for Xerox for many years and the leading founder of ACC. “Bob Banks gave us a great gift,” Krebs shared, “He gave us all an organization that permits us to change and improve our profession and ourselves. We are here today because of him.”

Krebs announced that ACC would be honoring Banks with the ACC Robert Banks Memorial Scholarship Fund, starting in 2010. This scholarship will help support those members who are in transition or need additional support to attend the Annual Meeting. Co-founding member, Carl Liggio, and Banks’ son, Bill Banks, were both on hand to share their heartfelt, personal memories and appreciation for Banks’ tireless efforts, dedication and historic legacy.

Dan Fitz, formerly Executive Vice President, General Counsel and Company Secretary at Misys and the 2009 ACC Board Chair, presented this year’s winner for Excellence in Corporate Practice to David Allgood, Executive Vice President and General Counsel at the Royal Bank of Canada. As General Counsel at one of the largest and most respected legal departments in Canada, Allgood is known as the person who sets the tone and introduces the best practices in law department management and leadership. Fitz noted that, “David's progressive posture on "value" issues, as promoted by the ACC Value Challenge, is setting both the tone and pace for other departments interested in reconnecting the cost of legal services to their actual value in the marketplace.” 

In addition, Fitz recognized Ogilvy Renault LLP as a firm that has gone above and beyond for their support of ACC and presented them with the 2009 President’s Award. “Not only has this firm supported ACC through advertising and sponsorships,” Fitz explained, “But they are also the lead sponsor of ACC’s popular CLO ThinkTank series of programs and they provide ACC with valuable insight on legal issues in Canada.”

The luncheon culminated with Pulitzer Prize winning author, Doris Kearns Goodwin, who shared her lifetime of studying and writing about great leaders with a captivating tale of her own personal observations and what everyone could learn from the great leaders she had studied. Her uncanny ability to bring history to life, to speak in pictures so as to draw everyone in, left everyone speechless. She shared her fascinating first-hand experience, as well as findings from in-depth research, and everyone hung onto her every word.  

The hundreds of people waiting in line to have Goodwin sign her latest book, Team of Rivals: The Political Genius of Abraham Lincoln, following the lunch was a true testament to the respect she garnered and the interest provoked among those in attendance. As Ivan Fong’s session earlier in the day was so enthralling that it warranted its own write up, so, too, does Goodwin’s speech. (To be posted on In-House ACCess following the meeting.)

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Coverage of ACC’s 2009 Annual Meeting will continue with interviews with ACC’s supporters and sponsors, over 100 of the world’s leading legal industry professionals.

* Susan E. Jacobsen, formerly ACC’s Director of Communications, was retained by ACC to cover this year’s Annual Meeting and will be providing coverage of the sessions and networking events throughout the conference.

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In a case involving an investigation by the NYAG and the SEC of Bank of America’s merger with Merrill Lynch and compensation and bonuses paid to Merrill Lynch executives (see New York Law Journal story), the NYAG's approach turns privilege law on its head and could profoundly undermine the provision of legal and preventive law counseling in public companies. 

The U.S. Department of Justice has officially agreed that coercing privilege waivers is not appropriate, without precedent, and extremely bad public policy.  It appears that the NYAG strategy is to "try" Bank of America in the media where they have suggested that Bank of America is not cooperating with the investigation because they haven't released privileged communications and work product. Such arguments do not hold water and would not withstand the scrutiny of introduction in the courtroom, under legal precedent on privilege, current federal charging policy, or SEC enforcement guideline.

It is ludicrous for the government to argue that a company invokes an "advice of counsel defense," because an employee “admits” under questioning that s/he spoke with a lawyer. That "admission" by the employee is the result of a good faith answer to a direct question posed by a prosecutor (and is thus compelled). It is not a disclosure of any aspect of the underlying advice, nor does it somehow create an argument that the company is asserting an advice of counsel defense.  We all know that such an assertion needs to be made by the company in a formal adjudication process as a stated defense.  Bank of America is quite clearly arguing in this case that its actions were legitimate and compliant with all disclosure laws, not that they were somehow illegitimate or suspect, and only made on “advice of counsel.”   (see Lewis Liman’s 9/8/09 letter to the NYAG). 

 
The NYAG's unprincipled shot across the bow [to create out of thin air an assertion that the company has raised an advice of counsel defense and therefore needs to divulge privileged files], if allowed to stand, will reverberate through every corporate boardroom and C-suite.  It will have a chilling effect on clients’ willingness to engage in crucial conversations with lawyers on the most sensitive and complex matters they face.  Yet those are precisely the circumstances in which the public interest most favors candid consultations with counsel.  I would have hoped that prosecutors and enforcement officials in such cases would be interested in encouraging such good practices, rather than undermining them.  

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Leadership Development Institute (LDI)  is held every year at Annual Meeting for the incoming leaders of ACC's Chapters and Committees. Run by our Director of Member Development & Chapters, Tori Payne, and assisted by our  Legal Resources Director, LDI focuses on whatr the new leaders of our chapters and committees need to know to head the most productive and active groups.  Having personally worked arm and arm with two of our 17 committees (one being New to In-house, which was awarded Committee of the Year, thank you very much), I know that the leaders work at LDI pays off! The training focuses on recruiting new chapter board members, motivating staff, increasing programming best practices, and much more.  This year, ACC has invited Peter Stark, a published professional with 15 years of career coaching and strategic planning experience, to speak at LDI. We couldn’t be more excited to have him share his expertise with us.

If you are attending the meeting and are interested in taking a more active role in your committee or chapter, please email Tori Payne or check with one of us at registration for more information. 

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