Ten Things: Career Killers – Things Not to Do as In-House Counsel

I have been an in-house lawyer for almost 25 years, with a large chunk of that time spent as the general counsel. During my time, I have seen my peers and people who worked for me do some really great things and some really foolish things. I certainly did my share of both. As a manager and as general counsel, I often had lawyers ask me, “What are the things I need to do to get ahead here in the legal department?” This is an excellent question and one every manager hopes/expects to hear from their employees, especially those who show the skills and drive necessary to move up the chain. A good manager or more experienced colleague, however, also consider the flip side of that same question and is ready to proactively, or in response to a specific question, counsel in-house lawyers on the things they need to avoid doing to succeed in the in-house world. To cut to the chase, being an in-house lawyer is much harder today than it was 10 years ago, and the wrong move can be your first-class ticket to Unemploymentville. I know that over the long term, I was able to claim the general counsel chair because, among other things, I asked a lot of questions about what I should be doing, but I also listened hard when people told me what not to do or, if I did mess up, I learned the lesson then and there and did not repeat the mistake. That can be easier said than done, especially when the day is jammed with work that needs to get done vs. spending time thinking about what you did – or might do – wrong. I thought this edition of Ten Things should share my list of 10 things that can kill your in-house career:

1.  “It’s not my job.” There are times during the year when there will be a new or novel legal issue that arrives on the doorstep of the legal department. The general counsel or managing attorney will be looking for someone to take on the project. Likewise, there will be times when one group or the other is flooded with work and could use a hand, i.e., someone in the department who could take on some of the work, even if it is not their area of expertise. Never volunteering, or saying “No, that’s not what I do,” may get you less work, but it will also cement your standing as someone who is not a team player or willing to go out of their way to help solve problems. Neither is good.

2.  Dress like a mess. Yes, your company might have a casual dress policy and it may even be something less than business casual. That said, it is highly unlikely that the board of directors or the C-suite want to see their lawyers dressed like they are getting ready to install a new fence around the property or, at the other extreme, dressed for a night of dancing and intrigue at the club. My mom always told me, “You are what you eat.” The in-house equivalent is, “You are how you dress.” If you never want to advance, go ahead and adopt the “sloth and slovenly” look. I like to tell my teams, dress for the job you want and dress as though you could get called in at any minute for a meeting with the CEO or a member of the board of directors. Either is a real possibility on any given day. Take your cues from the general counsel or the CEO/COO/CFO. Those are the people who ultimately will decide your fate. Watch how the folks at the top dress and work to match their tone and style.

3.  Not preparing for meetings. One of the great things about law school – well, at least when I was in law school – was that if you just didn’t have time to do all the reading (for whatever reason), you could pass a note to the professor before class started stating you were unprepared that day. You could also blurt it out if you happened to be the one she zeroed in on for the holding in Hadley vs. Baxendale or The T.J. Hooper. Pretty slick, right? This doesn’t work at all in the real world, especially if you are in-house counsel. If you are invited to a meeting, you need to be prepared to engage and respond. This means doing work beforehand to understand what the issues are, reading any documents provided in advance, and thinking through what types of questions they might ask you. No one invited you to the meeting just for your company and there is no slipping a note to the VP of marketing that you are unprepared today. This may mean you have to stay up late or get up extra early to get prepared (or both). But, the last thing you want to be at a business meeting is a potted plant. No one is interested in paying for a potted plant with a law degree.

4.  Talking/writing too much. Another pearl of wisdom I like to share with my teams: Life gives you many opportunities to keep quiet – use them all! What I meant by this is the opposite problem of being a potted plant, and that’s being “Mr. or Mrs. Know-It-All” and falling in love with the sound of your own voice. Your business colleagues want to hear from their lawyer, just not on every point. And they definitely don’t want to hear your war stories and the time you stared down the other side in a contract negotiation or litigation battle. If you have something relevant to say, say it. Just be sure that it is adding to the discussion and providing counsel to the business. Pick your spots. If you’re talking all the time and engaging on every single aspect of what’s being discussed, the odds are – unless it is a unique situation – you are annoying people. A lot. In a similar vein, your writing as an in-house attorney cannot be overly long and dense. Writing in-house is different from writing in law school, writing at a law firm, or writing to the court. Keep things simple and short – to the extent possible. No one in the business wants to read your 20-page memo or seven-page email. Get to the answer quickly, clearly, and most importantly, give your recommendation as to what the business should do. If all you say is that you have Option A, Option B, and Option C and leave it at that, you’re not adding value, and adding value is what being a successful in-house attorney is all about. Finally, whether you say it or write it, always be practical in your advice. Those law review-style answers that partners in the big firms love don’t fly in-house.

5.  Not taking the administrative part seriously. Corporations run on information and processes. Take both seriously. If you need to submit a summary of what you worked on over the past week every Friday by noon, then, by all means, give an excellent summary and get it in by the deadline. If you’re asked for your input on evaluating staff or paralegals or other attorneys, don’t half-ass it. Take the time to prepare helpful input. If you need to review invoices within one week of receipt, don’t take two weeks to do it or force the general counsel to ask you when you are going to review the invoices (they really hate having to chase down people to do their job).  If there is some online training you need to complete, complete it and don’t gripe about it. The administrative part of being an in-house lawyer may drive you crazy, but the worst thing you can do is blow it off, make people chase you, or say, “I’m too busy doing real legal work.” None of this will endear you to the boss or whoever needs the information. Make their lives easier by simply accepting that paperwork is just part of the deal. Get it done. Get it done right. And get it done on time.

6.  Lack of commitment. Believe it or not, there is someone out there who wants your job. Seriously. It may be someone in the department who’s looking to move up, it may be someone at a law firm thinking “life would be so much better in-house,” or it might be a government lawyer who’s leaving with a change of administration. Just rest assured that if you don’t want your in-house job, someone else does. And the minute you feel like you are irreplaceable is exactly the moment you need to acknowledge that everyone is replaceable. If your boss or their boss sees you as someone who’s not truly committed to the department and the company, they will find someone who is. This doesn’t mean you need to work 24/7/365. Rather, are you passionate about the company and have you bothered to learn the business (e.g., read the annual and quarterly reports), the customers, and the products/marketplace (e.g., read industry publications)? Do you volunteer to take on tasks in the department or more broadly with the company? Do you pay attention at meetings (or is your head down checking your phone and proving that you’d rather be anywhere else than this meeting)? There are dozens of ways to show you are committed, engaged, and have what old-timers call “fire in the belly.” These are the type of people the department wants more of. They definitely want less of those who are not.

7.  Making jokes at the wrong time. All in-house attorneys need a sense of humor. It certainly makes the job easier and it makes you more approachable. Everyone likes a good laugh now and then, though no one wants their lawyer to be Krusty the Clown. And making the wrong joke at the wrong time before the wrong people can pretty much end your career at the company. This is another area of the in-house world that is a bit touch-and-feel. It’s difficult to give any black-and-white rules on this topic other than the safest play is to never wisecrack, though that is too drastic of a path in my opinion. I think the better way to go is to learn to read the room. Are you in a meeting with your peers and things are relaxed and a good bit of back and forth is already occurring? Then it’s probably okay to launch a joke or two. Are you in a meeting with the CEO or board and they are discussing layoffs? Definitely not the time to find humor in the situation. Unfortunately, most situations are somewhere between these two extremes. If in doubt, don’t do it. If you feel a little humor is the right way to go, then it’s pretty much always safe to make fun of yourself. Just like it is never acceptable to make off-color, crude, racist, sexist, or any other type of “-ist” jokes you care to name. Remember, you are at a place of business; treat it like such.

8.  Not “standing up” when you need to. In-house lawyers face a number of unique ethics issues that outside counsel rarely has to deal with. For example, your client is your boss – which means standing up or pushing back too hard can have a lot of repercussions, even if almost all CEOs and senior leaders want in-house lawyers who are willing to push back and raise issues (legal or otherwise).  Accordingly, I break this category down into two different areas: standing up because the company is doing something silly – but not illegal – vs. standing up when the company is engaged in bad behavior, the kind people go to jail for. When dealing with the former, the key is to raise the issue in a calm, rational manner and to point out the potential problems or minefields in an even-handed way. For example, the head of marketing wants to begin using customer data in a way that might come off as creepy or Big Brother. While the use is permitted under the privacy notice, it’s not 100% clear to the average reader that they have consented to this use. Start the conversation with something like, “I support our plans to grow revenue, but I have a few concerns about ‘X’ and want to be sure we’re thinking through everything and whether it could blow up on us somehow.” Ideally, you will have an example or two of companies doing something similar and getting bad PR, a stock price hit, or worse, drawing an investigation by a regulator. Ultimately, if the company wants to proceed and it’s not illegal, state your piece and then stand down. While the business may not have agreed with you, you will likely have left the impression that you are not a “yes man” and are looking out for the best interests of the company. A strong backbone is a key trait in a successful in-house attorney.

As for the second category, unfortunately, the news is littered with stories of in-house lawyers taking the fall or leaving unceremoniously because they failed to stand up when the company was taking a bad path or failing in a duty. Looking back over the past couple of years, I have seen many in-house lawyers take the hit at their companies. The common denominator for most of these is that the in-house lawyers failed to raise the alarm or take a firm stand against the activity. This is probably the hardest task any in-house lawyer is faced with, i.e., when do you try to put your foot down and stop or correct bad behavior by the company? A few tips:

• If the behavior is criminal you almost certainly have to make a stand and find a way to stop it, either under the ethical rules (Model Rule 1.6)¹ or the up-the-ladder requirements of Sarbanes-Oxley or other statutes. If in doubt, speak with the general counsel or a trusted colleague in the legal department or with outside counsel; they will be glad to help you think it through. Be sure to utilize the formal compliance structure to report things.
• Document your actions – who you notified, when, the response, etc. It sounds a bit CYA because that’s exactly what it is.
• Follow up after you first raise the issue. If you do not hear back or see a resolution, ask about the status. When you follow up, also do so in a calm, professional manner. No 5,000-word emails to the CEO about the “criminal enterprise” you’ve uncovered at the company.
• If things are truly bad, realize that you may have to quit. Sometimes it does come down to this. It depends on your place in the organization, etc. But, the last thing you want is to get dragged into a criminal investigation where you are among the targets.
• If you must turn “whistle blower,” keep in mind that you will have some unique responsibilities as an attorney.

9.  Expecting people to notice your work. It would be a great world if all you had to do was work hard and do a great job and everyone would notice and applaud you (maybe even give you a raise and promote you). Guess what? It rarely works that way. If you sit around waiting for people to notice and recognize your great work, you may be waiting a long time. It does happen, of course. But the better strategy is to make sure to take advantage of opportunities for your boss and your boss’ boss to notice the work you’re doing. The easiest way to do this is through the annual or twice-yearly review process. Take the process seriously (see Number 5 above) and be sure to set out all of the things you accomplished and why you think they are important and how they solved a problem or added value. If you were creative in the approach or solution, be sure to note this as well. If you have regular meetings with your manager, this is another opportunity to set out what you’ve accomplished and why it matters. Occasionally, someone in the business drops you a note to thank you for doing a good job. Pass that note on to your boss or, if you can swing it, ask the business person to send a note to your boss or the general counsel recognizing your contributions. Nothing makes the general counsel happier than having happy clients. Don’t overdo it here. Getting a basic contract done in a timely fashion is good, but nothing to brag about. Turning around a complex agreement on very short notice is worth mentioning.

10.  Being an a*#$^%e!  Sometimes this strategy works; for example, when your name is on the door of the “tower,” or you’re at a law firm where you are bringing in millions of dollars in billings. But, it rarely works in the in-house legal world. Those that take this path usually find someone holding the door for them as they start their walk to the parking lot with their box of personal belongings. This doesn’t mean you cannot be firm or a zealous advocate for your position (especially with the other side). What you cannot be is simply mean, demeaning, or a jerk. No one wants to work with, or for, a person like that. And most companies generally do not want people out in the world representing them in such a manner (see some of the recent executive turnover in Silicon Valley if need some examples). But, usually, you will find that you can combine a sharp mind, legal skill and savvy, and great communications skills with being a decent, fair, and nice person. If you cannot, you may at the wrong company or in the wrong field of employment.

*****

If you’re like most, you’ve worked hard to get your in-house position. Now do what you need to do to hold onto it and avoid the things that can cut your career short. The list above will get you started down the right path. Of course, no one is perfect, and you will make mistakes, including a number of those outlined above. I certainly have. The key is to be self-aware and work to recognize when you might be slipping off the path. Being open to (and asking for) constructive criticism is also a good trait. And, if you do slip, work to correct the problem. Being oblivious or thinking you’re untouchable for some reason is the quickest way to find yourself on the street and looking for a new job.

Sterling Miller

September 14, 2017

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