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

Do you remember the end of the iconic movie, Revenge of the Nerds, when Lewis takes the mic from Gilbert and suggests that more of us are nerds than jocks? The pretty cheerleader exclaims she’s a nerd too; most of the crowd joins Lewis, Gilbert and his nerd fraternity brothers in an effort to end nerd persecution, and the familiar strains of “We are the Champions” begin to play. Well, that cinematic moment was one of the formative experiences of my youth (I didn’t get out much) and it came to mind when I was thinking about ACC’s new Value Champions program, our new initiative to identify and celebrate law department and law firm leaders who incorporate value practices into their legal projects. 

I've paid my dues/Time after time

I've done my sentence/But committed no crime

And bad mistakes/I've made a few/I've had my share of sand kicked in my face -

But I've come through

Three years ago, ACC challenged the legal community to embrace value practices that are commonplace in every service industry, save one. While we heard some folks sing their hosannas, there were, and still are, folks who believe that the legal services industry can remain the same and still meet client expectations. Like the dinosaurs that were unaware of the meteor, the firms and law departments that continue with the old business model will not find the future climate hospitable. Wait a sec. Wrong analogy. Like the jocks who thought that they would continue to rule the campus on their terms. Sorry about that.

But, like Lewis and his new self-proclaimed nerd supporters, those of us implementing change are in a growing group. In fact, outside and inside counsel who focus on value practices, such as effective project management, value-driven fee arrangements and continuous improvement, are fast becoming the norm, not the exception. And, that’s what the Value Champions program is all about. We’d like to shine a spotlight on them, so that the world can see their accomplishments and learn from them.

I've taken my bows/And my curtain calls/You brought me fame and fortune and everything that goes with it/I thank you all

But it's been no bed of roses/No pleasure cruise

I consider it a challenge before the whole human race/And I ain't gonna lose

Of course, some value practices are easier than others. Some of them require the simple application of business principles from other industries. And, we want to identify and celebrate individuals who have employed those practices, because we believe their accomplishments can be replicated by our members and the rest of the legal community. But, of course, some projects are harder, more complex and more frustrating at times, because the ideas animating them are so novel. Think of the nerds' effort to beat the jocks in the fraternity competition. So, we’d like to celebrate innovative strategies as well. If you’ve tried something novel or something more garden-variety, please let us know about it. Our only requirement is that the submitted project has reduced legal spend, increased predictability and/or reduced the unwelcome types of legal issues confronted by the company over time.

We are the champions – my friends/And we’ll keep on fighting – ‘til the end

We are the champions/We are the champions

No time for losers

'Cause we are the champions – of the world 

Our deadline for submission is March 15, 2012. If you’re in the legal community and you’ve ever cared about value enough to incorporate it into your day-to-day practice, turn up the volume on Freddie Mercury’s classic and join us and submit a nomination form. The legal services industry just won’t meet client expectations until value persecution ends. We look forward to hearing from you.

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Howie Wong is general counsel and corporate secretary at Toronto Community Housing, which is the largest landlord in Canada. Prior to joining Toronto Community Housing in 2005, Howie was an M&A lawyer for 19 years with Gowlings, a national Canadian law firm.

David Allgood’s office is surprisingly spartan. Search as you will, but do not expect to find fancy glass and marble, as would befit the Executive Vice President & general counsel of the Royal Bank of Canada (RBC), the largest bank in Canada. Rather, David oversees 160 lawyers in 11 countries from a non-descript back office, where I sat in the hallway, waiting my turn to see him. But, don’t be fooled; he is definitely a power to be reckoned with in the banking world.

David’s approach to diversity is no different — no flash, just pure substance.

Diversity is a core value at RBC that emanates from the CEO down. Their website is impressive — chock-full of information, initiatives, progress reports and metrics. RBC has enough diversity awards on its mantel to make any mother proud.

RBC Law has a significant number of female leaders as well. Sixty percent of its executives and 40 percent of the senior managers are women. The number of diverse leaders is somewhat less, but laudable all the same. 

David focuses on filling the pipeline at the entry-mid levels with the next generation of diverse leaders. When hiring, RBC mandates that the candidate pool for every vacancy include at least one female and one diverse candidate. A big challenge is the retention of female lawyers, which RBC Law addresses with various strategies, such as greater flex work. “We don’t have hard quotas here,” says David. “Rather, we have high goals and exert moral suasion.”

RBC Law has a long-standing summer mentorship program, aimed at giving marginalized students real-life law experience. They have also developed a lawyer exchange program with an aboriginal organization.   

Earlier this year, David was one of 40 general counsel that formed Legal Leaders for Diversity and Inclusiveness to drive diversity in Canadian law departments and purchasing practices. Expect more on this in a future blog post.

As a senior RBC leader, David participates in a reverse mentorship program in which he mentors a diverse manager from another department in the bank. But, here is the twist: The mentee also mentors David on how to look at the bank through her eyes — both the opportunities and challenges. David believes this program sensitizes RBC leaders to what’s needed to break down diversity barriers.

RBC Law also expects diversity from its external firms. “Canadian firms are trying, but still have a ways to go in catching up to the US firms that can rhyme off their diversity stats at a drop of a hat,” says David. “We understand the challenges for the Canadian firms, but still exert moral suasion and expect results.” Remember the “velvet hammer” touch I mentioned earlier?

I couldn’t resist asking the prickly question: Should a white middle-aged lawyer be fearful of his opportunities at RBC Law when diversity is an imperative? David fixed his steely eyes on me and replied, “No. The diversity process forces management to look and hire beyond their comfort zone. But, the key is always hire and promote the very best candidate.” No argument from me on that one. 

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 Part IV. Follow along in this four-part blog series featuring a timely and provocative look inside Hewlett-Packard Company’s innovative new legal talent development program. This blog takes a look at the training program from the perspective of a participant, HP new hire, Gail Su. Gail is a graduate of Harvard Law School and is currently Counsel on the Intellectual Property Transactions Team. Prior to joining HP, Gail attended Harvard Law where she served as the President of the Harvard Asia Law Society, as Conference Chair for both the Asia and Pacific American Law Students Association and the Journal of Law & Technology. The voice, views and stories expressed by the authors below are their own and not ACC’s. To read the first installment of this series, click here.

Part IV: Who Says Attorneys Can’t Be Trained In-house?

When I first started at HP, I was excited but nervous. I wasn’t sure what to expect, but much to my relief, HP had it all sorted out.

My training has come primarily from two sources: a set curriculum that all new attorneys are asked to complete and my on-the-job experiences. The set curriculum is composed of classes (that I attend both online and in person) and practical experiences. The training was designed to give me broad exposure to the workings of a large company and to help me develop certain skills. It has given me the opportunity to attend classes on core legal topics such as antitrust and contract law; I have had the chance to present a legal recommendation to a company executive; and later this year, I will spend a week at a legal outsourcing site negotiating sales agreements. In addition, I’ve attended a customer meeting with an HP executive as well as a negotiation workshop, and participated in a business simulation where I helped a fictitious company evaluate business options.          

In my day-to-day training, I am fortunate to be under the instruction of managers who are committed to my development as an attorney. I am also fortunate that the entire IP Transactions team has joined together to mentor me. I have been exposed to a wide range of matters and have learned from lawyers with different styles of practice. Sometimes I work on projects by myself. Other times, I work on projects with other attorneys. In all cases, I am encouraged to take on as much responsibility as I believe I am ready for. There are no rules as to what I am capable of, and there are no rules as to which projects are too complicated for me. 

Additionally, my manager encourages me to take ownership of my career, including choosing experiences that will benefit me professionally. One of my professional aspirations is to work on cross-border transactions, especially in Asia. Upon hearing that I would be interested in spending time in HP’s Shanghai office, my manager’s words to me were, “Let’s try to make that happen.” I am pleased that it worked out and I will leave for Shanghai in October.  

Finally, I am encouraged to participate in pro bono activities. In fact, each HP attorney is asked to complete 20 hours of pro bono service a year. In the short time that I have been at HP, I have worked on a VAWA immigration self-petition, advised non-English speaking clients at a legal clinic for small businesses, and instructed middle school students on the law.  

Ten months ago, I couldn’t have imagined that my career would be off to such a fast-paced and exciting start. Thank you, HP, and I look forward to experiencing all that you have to offer.

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by Martine Turcotte, CLO of BCE, and Zygmunt Jablonski, CLO of Domtar

Click here to download the French Translation (pdf) of this post.

As general counsel for two different kinds of clients, there are many things that distinguish our respective roles. One of us has a large department, one has a smaller department. One of us works in a company that is in the tech and communications space, and one of us works for a company that is resource and product-oriented. One of our clients has a strong focus on domestic work in Canada, and one is a Montreal-based Delaware company with a North American manufacturing base and a global customer network. 

But in terms of our roles as general counsel, what distinguishes us is not as significant as what we have in common — namely, that we have many varied responsibilities that require us to juggle a number of roles and constituencies every day. We solve legal problems, manage risk, coordinate brands, monitor public and governmental affairs, fulfill corporate secretariat roles — you name it, we are responsible for it. 

Today’s general counsel – regardless of the company in which he or she works – is pulled in any number of directions by the sometimes competing demands of management executives, stakeholders, board members, employees, adversaries and competitors.   We have a great deal of work that requires our immediate attention, but at the same time need to focus on long-term strategic needs for our law department and our companies. So, who has our back? Our great department team members, our management, and of course, our personal support network of friends and family outside the office.

Who is missing from that list? While we are both fortunate to work with extremely talented outside counsel, many of whom we cherish for their skills and friendship, there are still not enough firms out there who think of themselves as truly part of our teams and who “have our back” at all times. 

Many Canadian firms do not seem to understand that the general counsel’s agenda and service expectations are changing — far too many of the firms upon which we have traditionally relied are too slow to work with us using new value-based techniques such as innovative pricing, staffing, knowledge, and process-based solutions that our businesses and complex legal problems require. There are some really notable exceptions, but they are exceptions, rather than the rule.

At a recent ACC CLO ThinkTank meeting (hosted by Zyg at Domtar Corporation HQ in Quebec, sponsored by Ogilvy Renault and attended by Martine (Martine is also a member of the ACC Board of Directors), a number of Montreal’s top CLOs met to discuss law firm/client value issues: what’s working and what’s not.  

We were struck by the common experiences of every general counsel in the room. There was a strong sense of disappointment over resistance from many of Canada’s top firms when we asked them for a new approach our legal work and legal spend that will drive efficiency, and not just hours. There was also dissatisfaction with the firms’ lack of focus on process and project management skills. For the most part, we are still not seeing law firms truly align themselves with us in terms of profiting from our outcomes in a manner that is commensurate with the value of the services they provide to us.

Coming out of that ACC CLO ThinkTank, we wanted to pen this blog to help Canadian CLOs and GCs start the conversation between in-house leaders and Canadian law firms. It is important to remember that there are two sides to the story here — we both need to do better at having the “value” conversation. As in-house counsel, we need to be clear in defining what value means to each of us, and to reward firms that provide it; and firms need to improve and adjust, or reinvent their service models to accommodate the “new normal” of efficiencies and work based on results, not hours.

In concert with the ACC Value Challenge initiative, we aim to drive the conversation to get each side, clients and firms in Canada and elsewhere, focused on how we can do better, together. 

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Michael Chang is senior counsel at Warner Bros. Studios, and serves on the ACC SoCal board of directors. He can be contacted at michael.chang@warnerbros.com. The voice, views and stories expressed by the author below are their own and not ACC’s nor their companies.

An old Chinese folktale, attributable to writer Lin Yutang, is told in my family:

 An Old Man was living with his son at an abandoned house on the top of a hill. One day, they lost their horse. The neighbors came to express their sympathy for this misfortune, and the Old Man asked, "How do you know this is bad luck?"

 A few days afterwards, the horse returned with a number of wild horses, and his neighbors came again to congratulate him on this stroke of fortune, and the Old Man replied, "How do you know this is good luck?"

 With so many horses around, his son began to take to riding, and one day he broke his leg. Again the neighbors came around to express their sympathy, and the Old Man replied, "How do you know this is bad luck?"

 The next year, there was a war, and because the Old Man's son was crippled, he did not have to go to the front.

The lesson I took away from this parable? In life, there are no such things as luck or adversity; success or failure. It all depends on how you look at it.

I grew up as an immigrant in America. I was in grade school and spoke no English when we moved to Northern California. When I found out about the overseas move, I was horrified. My immediate reaction was dread; I dreaded leaving my friends.

 As a teenager, I often was teased by the kids at school about my non-native, heavily accented English. My sympathetic English as a Second Language (ESL) teacher tried to comfort me with assurances like, “You know, you don't really learn the language unless you learn it in ESL.” I began to absorb bits and pieces of my new culture by watching cartoons like Bugs Bunny — a character produced by the same motion picture studio I now work at. And through learning English as a second language, I discovered that I was good at languages.

I graduated in mid-1990 when the economy was just recovering from a downturn. In those days, when you applied to law school and then graduated, “you get what you get, and you don’t get upset,” to quote a nursery school mantra. Nowadays, the bar has been raised and there is an even greater number of qualified law school graduates competing for fewer positions. This makes it important to distinguish oneself not only with traditional indicia of success but also with something personally unique.

As a law student, I followed the “usual” path — I got accepted to the law review editorial board, published articles, clerked for a federal judge, worked at a large firm, published more articles and, my annual billable-hour quota permitting, volunteered at pro bono projects.

But, from there, I took a risk, and my path diverged from that of the “typical” associate. I not only went in-house at a relatively early stage of my career, but I moved to a rural area in a country relatively foreign to me. On top of that, I joined an emerging, foreign IT company consisting of, by and large, non-English speaking engineers. I was one of a handful of English-speaking employees — all the others were English teachers or interns. I realized that, by making this move so early on in my career, I could be sacrificing a lucrative position as a ‘big firm’ lawyer, possibly partner. However, being young and somewhat myopic, I didn’t want to (and couldn’t) wait to find out if the big law firm was the path for me.

I was going after my dream: to do something that didn't come naturally, and to become knowledgeable in a long-held passion: Japanese culture. I did learn as much as I could about my chosen field — the consumer electronics and consumer products business in Asia — by working closely with and absorbing knowledge from people who have more than 20 years of experience in that field.

 At first, not speaking the language — yet physically resembling a Japanese national — I was teased about my “foreignness.” This brought back memories of grade school. As bad as the experience seemed at the time, however, being immersed in the Japanese culture turned out to be fortuitous. At some point during my seven-plus year stay in Japan, I realized that I had achieved a fairly high level of fluency in three languages: Mandarin Chinese, English and Japanese. I also found that that being multilingual gives a lawyer, particularly an in-house lawyer who is part of a global team of professionals, a competitive advantage.

Whether in Asia or in the States, I now feel at home in any negotiating environment. I regularly review, in multiple languages, Batman branding style guides, Tom and Jerry trademark filings, Big Bang Theory marketing materials, and Looney Tunes licensing contracts — providing significant cost-savings to my employer. From both a personal and a career perspective, being the non-native English speaker has allowed me to make a figurative “return trip” in bringing American entertainment to Asia.

Looking back, my ‘foreign’ background not only became a career advantage, but it also enriched my life. Luck really depends on how you look at it.

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Throughout 2010, ACC continued to take the pulse of the legal industry through its annual surveys. From the changing role of the CLO, to the evolving relationship with outside counsel, including the increased use of alternative billing arrangements, our surveys provided data to our members so they could have reliable benchmarks for their own law department management practices and insights into new legal and business trends.  Our surveys shared some themes in terms of takeaways for 2011 – a desire for an increase in value and efficiency in legal work predominated and practical methods for achieving such efficiencies emerged.

With fickle consumer confidence and a sluggish economic recovery this past year, CLOs actually showed signs of optimism indicating increased job satisfaction and plans to hire internally, according to the 10th Annual Chief Legal Officers Survey released in March. Results showed a sharper focus on reducing costs, increasing value and responding to regulatory scrutiny. Specifically:

·91% of CLOs reported that despite expanding duties, they were still satisfied with their chosen career. This is a positive data point indicating that external economic conditions did not heavily impact job satisfaction. One could surmise that internal structures, processes and rapport with management strengthened relationships and solidified job satisfaction and will play a key role in continued career fulfillment in the year ahead.

·29% (more than a quarter) of the respondents planned to hire staff for their in-house legal departments in 2010.  Despite the recession, this was up from the 23% with hiring plans in the previous year’s survey. The uptick in staffing and augmented workload will require an increased focus on efficiency in the coming year as CLOs manage their law departments, budgets and C-suite relations.

·79% of CLO respondents want to increase the percentage of outside counsel spending based on alternative fee arrangements. As CLOs face a myriad of intricate and new challenges, they are turning to business-oriented solutions. Initiatives such as the ACC Value Challenge will play an integral role in 2011 as in-house counsel seek more creative, value-based billing arrangements with outside counsel.

Another important set of benchmarks emerged in October with the release of the 10^th Annual ACC/Serengeti Managing Outside Counsel Survey. For a decade, this survey has assessed key elements of the in-house counsel/outside counsel relationship. This year’s results revealed that in-house counsel are seeking more business-oriented management techniques and more value-based fees from their firms to drive efficiency in legal costs and reduce overall legal spend.

·65% of respondents now require project budgets; 60% require risks/potential resolution strategies. Compared to a decade ago, in-house counsel now require measurable data, metrics, targets, project management tools and rigorous cost-controls to implement getting maximum value from their outside firms. This will continue to be a priority in the year ahead.

·Company resistance to alternative fees has declined by 16%; firms’ resistance to alternative fees has declined 69%. Over the past ten years, results show that law firms are “getting it,” as they are offering alternative fees more often (up 6%). In light of these results – and those from other surveys – we believe the move to alternative billing will continue to increase in 2011, even if the economy strengthens.

·28% sought input from their law firms when evaluating technologies for collaboration. The most common technologies for which law firms provided input were matter management and e-billing systems. Law firms should heed these results and offer clients useful business solutions in 2011.

A third survey in November, the ACC/The American Lawyer Alternative Billing Survey, also showed an increase in the use of alternative fee arrangements in 2010. While still a small percentage of total outside counsel spend, the increase in the number of “value-based” fees demonstrated the determination of law department managers to continue to increase the use of alternative pricing and valuation methods, even as the economy recovers.

·29% of in-house counsel reported an increase in the use of alternative fees in 2010 and 53% of General Counsel said they used flat fee billing for an entire matter. We were interested to see if in-house counsel would continue to experiment with new fee structures once the markets began to rebound and budgets were not under the same level of stress in 2010.  The fact that billing practices did not revert back demonstrated that in-house counsel were continuing the march to drive costs and value away from measuring hours alone. The needle will likely continue to lean toward alternative fees in 2011. 

·52% of GCs indicated that their value-based or alternative fee arrangements were initiated primarily by the law department, not by law firms. With increased pressure to demonstrate value and stand out from competitors, law firms will need to be more proactive, become trusted business advisors to their clients and focus on value in their relationships with outside counsel in 2011. 

·24% of survey respondents not using alternative fee arrangements in 2010, plan to try to implement them in 2011. These results show that the push for value-based fee arrangements is not a fad that will go away. These practices are now not only more acceptable, but becoming more firmly ingrained as an offering at major firms. As value-based billing options become institutionalized, we predict they will increase steadily not just this year, but year over year.

For both law departments and law firms, there is a lot to chew on in these trends and benchmarks as we ready ourselves for a new year with new challenges and we hope, new solutions. We will continue to tap into ACC’s in-house counsel community for feedback and insight to help us prepare for what is yet to come. As Albert Einstein proffered, “Learn from yesterday, live for today, hope for tomorrow. The important thing is not to stop questioning.”

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This morning, ACC registered what may be some of the most important comments the SEC considers this year. On behalf of 270 companies, we asked the Commission to think long and hard about rules they’ve proposed that will determine whether corporate compliance and reporting programs flourish or perish pursuant to whistleblower policies mandated by Dodd-Frank’s sweeping reforms.

What’s at stake?  If you’re a company that relies on your employees to assure that work is done legally and responsibly, the answer is pretty much everything. And, pretty much every kind of company – industry, geography, size, etc. - is represented in the “sign-on” group for our comment letter.  The in-house community is fully engaged in this debate because in-house lawyers see these proposals as undercutting the efforts they’ve made to build and continually improve upon corporate compliance programs for the last several decades.

You can read our comment letter for the full backdrop on the law and the proposed regs that we’re so concerned about.  In a nutshell, Dodd-Frank includes a provision (Section 922) that mandates that the SEC put together a more aggressive whistleblower incentive program, modeled on the one currently in place for employees of government contractors under the False Claims Act for qui tam claims.  The SEC is required under Dodd-Frank to promulgate rules that will define the procedures to administer the whistleblower system that the Act creates, and they proposed the rules they’d like to adopt in November.

So, why do we see these rules as such a significant challenge? Not because companies are against the idea of whistleblowers.  Rather, they’re concerned because the SEC proposals essentially kick the legs out from under the carefully constructed compliance and reporting systems emanating from federal and state mandates, the U.S. Sentencing Guidelines, and growing public expectations of corporate self-policing. The SEC’s proposed rules suggest that employees who uncover problems in their companies don’t need to tell the company about the problem or help fix it -- instead, if they can build a file that demonstrates fraudulent activities by some rogue employees at the company, they can turn that into the SEC instead and share in a significant portion of any fines collected – potentially millions of dollars.  Basically, regulators have moved from an interest in protecting whistleblowers and facilitating their reports toward a system that establishes huge potential rewards for bounty hunters who don’t have interest or investment in making sure their company is doing the right thing, but rather are rewarded only when the company can be shown to do the wrong thing.

Here are my questions:

1. If employees aren’t obligated to tell their employers about bad hats in the company, how does the company find out about problems and either avoid them or police them/correct them?   
2. If employees are able to collect bounties against their employers even if they are also involved in perpetrating the fraud they’re reporting, exactly what incentive do they have to help the company obey the law?  
3. Stepping back a bit, haven’t we spent the last few decades diligently directing companies to invest their futures in figuring out how to create and enforce the most robust compliance programs? Aren’t those programs fundamentally connected to an expectation that employees will actually be the ones who make it possible for the company to comply?  Otherwise, how is a company expected to learn of and correct wrongdoing within its ranks if its employees aren’t working to promote that interest internally?

Let’s be clear: in-house counsel are committed to compliance and reporting systems and are not the enemy of whistleblowers. In fact, in many ways, they helped create the opportunity for whistleblower protections long before legislation was in place.  Another key point -- it is in-house counsel who facilitate and promote the reporting of problems within companies in general.  But these proposed rules aren’t about protecting whistleblowers or encouraging robust reporting -- they’re about incenting bounty hunters. And if we look at the ramifications of such a new direction, we must then logically question whether the rules improve or frustrate the purposes of the Dodd-Frank Act.

If you value an effective process by which problems are discovered, vetted and resolved before anyone is hurt, there many reasons why you might want the company in the game at the outset to help.  Does anyone at the SEC have a plan for how they’re going to receive, process, review and investigate what may be thousands, if not hundreds of thousands, of complaints from eager applicants for bounty funds? The SEC is already quite concerned about how it will write the 90+ regs that Dodd-Frank alone requires it to complete within the coming months, while fulfilling its already overflowing workload (see Wall Street Journal, “Regulator Is Slowed By Budget Impasse” by Jean Eaglesham and Victoria McGrane, December 15, 2010).

It seems pretty clear the SEC isn’t well-equipped or appropriately staffed to sift through and investigate the merits of thousands of complaints.  So after a complaint is filed, and there is a wait for a few months for someone to be able to review it, what will the SEC then need to do?  Send it back to the company for investigation. What’s been happening in the meantime?  Potentially more fraud.

What about the majority of reports lodged on whistleblower systems in companies currently that will now be filed with the SEC? I suppose they’ll all warrant a full SEC investigation, even though empirical evidence suggests that most complaints are actually HR disputes and the like?  Basically, this reg would frustrate the efficient and speedy redress of any legitimate concerns that the SEC may receive. It would also potentially allow more problems to fester than would be the case if the company was informed at the outset and able to examine and address a problem raised by an employee.

What do you think?

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Welcome to ACC’s 2010 Annual Meeting in beautiful San Antonio. Our theme this year is Be the Solution. Our meeting will continue to provide practical sessions and realistic solutions that help you navigate the challenges and opportunities faced by corporate legal departments around the world. ACC Committees drive our meeting content. Your peers tell us what issues and developments in-house counsel must deal with, and we hope you agree that we deliver what you need.

Every day, you face an expanding number of challenges with limited time and resources. Over the three days we spend together, we will help you deliver for your clients the key solutions to those myriad challenges – financial, human resources, public relations, privacy (to name a few) – that corporations face today. These sessions will be informative and thought provoking, and you will reconnect with old friends and meet new ones.

Do you need ethics credits and want to have some fun at the same time? Check out the program following Monday’s lunch. Hosted by Lex Mundi, ACC’s South/Central Texas Chapter will entertain and educate us with Ethics Follies.^® This ethics-training program is a fun and fast-paced musical performance that brings in-house attorneys’ current ethics issues to life in a memorable and entertaining way. The award-winning chapter has performed their musical comedies all over the United States for conferences to raise money for its pro bono work. Business and attorney ethics, compliance, codes of conduct, Sarbanes-Oxley and many ethics rules are covered.

Where are we going as in-house counsel and what will the legal practice look like in the future? Join us Tuesday for lunch and the program: First the Cell Phone, then the PDA...What’s Next? How Will We Use Technology to Transform Business in 2015 and Beyond? Moderated by ACC Board Chair, Pat Hatler, executive vice president, chief legal and governance officer, National Mutual Insurance Company, we will think big and consider what the future holds for in-house counsel. Microsoft Corporation’s Brad Smith, senior vice president and general counsel, and Kent Walker, vice president and general counsel for Google Inc., will consider game-changing technological advances, new ways to team and work, changing legal executive skill sets, and the means to leverage the roles and responsibilities of in-house lawyers to improve corporate performance and success. You don’t want to miss this event.

With more than 100 CLE/CPD courses, you will have many opportunities to earn CLE credit at the annual meeting. Don’t miss out. Here are instructions for updating your registration and documenting your attendance.

The late John Wooden used to say, “Failure to prepare is preparing to fail.” Thank you for all that you do for ACC. I look forward to seeing you in San Antonio where we will prepare for the future of in-house legal counsel.  

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 Process Mapping Primer 

Week 12. 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. The voice, views and stories expressed by the authors below are their own and not ACC’s. To catch up on the story so far, click here.

The client side

From Ken:

Lawyers are idiosyncratic workers. We do things differently when you compare one lawyer to another, and we do things differently when you compare how we do the same thing from time to time, such as preparing contracts. We justify much of this idiosyncratic behavior by claiming we do bespoke work – each time we do a case, contract or other matter, it is unique. Our idiosyncrasies, however, make us very inefficient.

We have designed the Wolverine/Seyfarth partnership to reduce process variability, using the SeyfarthLean techniques, so that we each become more efficient in providing legal services to our client. To know what Wolverine does today, we will make process maps. A group of two to eight individuals, drawn from both entities, will brainstorm and capture each step in a current process. In the old days, we did this by taping a long piece of butcher paper on the wall and noting each step in the process sequentially along the length of the paper. With all the mistakes, corrections and additions, it was busy when we finished. Today, Seyfarth does the same thing using computer tools that make the result much cleaner. Using the process map, we then (1) simplify steps, (2) weed out unnecessary steps, (3) re-sequence steps, (4) standardize steps and (5) create tools for steps. Each time we change the process, we update the map. We pull from a variety of metrics to measure our improvement – e.g., overall time to complete the process or number of steps in the process.

An obvious place to start with a trademark portfolio is the application process. The client sends an e-mail asking about the availability of MARK for use with a product. The in-house paralegal does a quick screening search and e-mails back saying that it looks like it is available, and asks whether she should do a full search and how the client will use the MARK. The client emails back saying yes to the full search, and gives a partial answer on use. The paralegal e-mails the outside paralegal requesting a full search. The outside paralegal requests the search and sends the outside IP attorney the results. The outside IP attorney has some follow up questions and sends them to the in-house paralegal, who in turn sends them to the client, who in turn responds to the in-house paralegal, who in turn responds to the attorney. Draw a line on your yellow pad and put each of these steps in sequence. Congratulations, you drew your first process map and already see several ways to improve the process. After each iteration, we want to achieve a steady state. That is, we want a defined process that we will repeat each time we do an application keeping variability to a minimum. One benefit of this technique is that you can apply it endlessly to any given process, always finding room for improvement,

We still can be brilliant lawyers. We just exercise our brilliance at the right time in a defined process that eliminates the unnecessary steps that cost our clients more, but don’t add value.

Next: So what is the status of those fee discussions?

The firm view

From Lisa: 

Ken has delved into the world of process mapping in his post this week. Okay, we love process mapping. We use this Lean tool often at Seyfarth -- we use it in very complex matters and those that are more repetitive. We may do it electronically, on a white board or even in our heads -- the trick is that it is a way to think about a problem.

When we first started working on process mapping, there was some resistance among our lawyers (and from me, as well). "Every matter is different," I kept saying. "This is complex litigation. How can we know what will happen?" We also heard: "My M&A work is highly specialized; a process map won't work." However, as we began to refine what we thought what a map could be and how we put it together, our lawyers began to see the magic of the tool. We think of our maps as "guides." We know that every legal matter is different, but we use maps to think through strategy, to organize our resources, to spot inefficiencies and to refine our strategy. They have become for many of our lawyers a true strategic tool as they think through complex issues for our clients. A quick plug: If you want to see how this works in real life, Ken and I will be doing a session at the ACC Conference, where we will have the audience on its feet, using a number of Lean tools, process mapping included. If you are coming to San Antonio, join us for some fun.

Another tool that we love to use to think through an issue is a "root cause analysis" tool. This can really force you to think beyond immediate problem-solving by requiring you to stop, think and ask tough questions. One of the tools, in fact, is called the "5 Whys" because it essentially demands that you probe for the root cause, using a series of "why" questions.

We also use other tools to guide our thinking. We find that other tools -- fishbone diagrams, for instance -- can be useful in working through client and internal issues to help identify the right solutions. I used one in a complex internal investigation last week, and it enabled me to get to an efficient solution that worked at the heart of the matter, not the periphery.

As we have said before, Lean gives us a way to think, a different approach to the practice of law. The tools support the thinking; they allow us to analyze and solve problems more efficiently and effectively. We would love to hear what kinds of tools and disciplines you are using. Let us know.

Next: A fee update and Ken teaches Seyfarth

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ACC has some very exciting news to share:

President Obama Intends to Nominate Association of Corporate Counsel Chair Ivan Fong as U.S. Department of Homeland Security General Counsel
 
 
Washington, D.C. (January 30, 2009) — The Association of Corporate Counsel   (ACC) congratulates Ivan K. Fong, ACC Chair and Chief Legal Officer & Secretary for Cardinal Health, Inc., on the recent intention by President Obama to nominate him as General Counsel for the U.S. Department of Homeland Security (DHS).
 
“We congratulate Ivan on this outstanding honor,” says ACC President Frederick J. Krebs.  “He is an outstanding lawyer and strong leader which will serve him well as he faces the many challenges that lie ahead.  ACC’s loss will be our country’s gain.”  Since Mr. Fong will step down as ACC Chair upon confirmation by the U.S. Senate, the ACC Board of Directors will meet to designate a successor.
 
“By all means, this is a bittersweet moment. I am humbled to receive word of the intention to nominate me for such a role with the DHS and I thank ACC for all of its support,” explained ACC Chair Ivan K. Fong.  “This is a very exciting time and I am looking forward to the challenges that lie ahead.”
 
Mr. Fong has been a member of the ACC Central Ohio Chapter since 2005, and was previously a member of the Westchester/Southern Connecticut (WESFACCA) Chapter.  He has served as a member of the ACC Board of Directors since 2004. 

Read other ACC Press Releases

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What is the connection? In The Future of an Illusion, Freud defined faith as a belief the validity of which is not subject to be proven or disproven. When Henry Paulson appeared before Congress to defend his actions in injecting liquidity into the banks rather than buying toxic assets from the banks, a position that he originally used to justify passage of the TARP, he faced stiff criticism of his credibility, not merely because he did not buy any toxic assets, having claimed that if the government did not we were all doomed, but because even the liquidity injection did not result in any significant increase in loans.

Paulson’s problem is he lacks common sense—banks will not lend money they think will never be paid back, no matter how well the bank is capitalized. However, unwilling to acknowledge this shortcoming he defended his action by claiming that things would have been much worse if he had not acted. Paulson has read Freud. He gave a reason which was beyond rebuke because like faith it could neither be proven nor disproven.

So you are in a settlement conference with your very prestigious outside firm. As the session progresses you notice that your attorney’s demeanor is changing. The enthusiasm with which he appeared to hold your position in the case is not the same as earlier in the lawsuit or even just before the conference, and he is now advocating that you pay a sizable amount. Finally, you agree.

As you walk out of the conference, the weight of your decision is pressing upon you. There were sizable legal fees and the settlement amount was much more than you expected. You glance over at your outside attorney who appears rather light hearted. You voice your concerns—you have managers that are going to question the investment in this case. He responds: “We saved a lot because the result would have been much worse if we tried the case.”
 

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Well, I’m about to head to Seattle to start the set up process for Annual Meeting. A few of the ACC staff heads to the site to prepare before our attendees join us for a CLE extravaganza. I’m particularly looking forward to our Going Green track of programs. It’s been a hot topic for awhile and it’s going to be great to hear how other in-house counsel are helping their companies comply with appropriate laws as well as be socially conscious.

In the same vein, I encourage you to check out our Green-house Counsel tip of the week. It's a weekly tidbit of environmental information, provided to us by Holland + Knight, to help you help your company and your legal department be more green.  I know, I know, I've been highlighting this product a lot, but it's really something that is of great interest to me, and to us here at ACC. At Annual Meeting '07, we went coursebook-less, by preparing customized emails for attendees which contained all of their course materials. This was our answer to cutting the use of paper and creating less of a footprint on the environment. It was received so well that we decided to do it again this year. And Seattle is a great place to embrace these green initiatives, as it is a city that prides itself on being  clean & green.

I'm looking forward to getting out west. If you're coming to the meeting, let's hear from you! What are you most excited about?

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ACC's Green-house Counsel is something we launched on Earth Day of this year. It's a weekly web feature which delivers resources, tips and facts to help your company adopt policies that are environmentally friendly – and often cost-effective, too. If you get the chance, make sure to check it out each week at acc.com/gogreen to learn how you can make your environment a greener one!

I'd be interested to know of anything you readers have implemented in your daily routines to become more 'green'. 

Also, if you are attending this year's Annual Meeting in Seattle, make sure to stop by the ACC Booth (#831) in the exhibit hall, and pick up your green gift- I promise it's a good one, and it won't take up much space in the suitcase. 

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