In-House Counsel

In-house attorneys can be as objective as outside counsel

By Rees Morrison

I defend in-house counsel from their detractors. One set of critics are those who say that if you are an employee lawyer you can?t be as objective as a partner in a law firm. They say that in-house lawyers know their jobs are on the line and that pressure weakens the brain and backbone. Partners can speak truth to power, see clearly, and if necessary walk away more easily. I can agree with most of that, but I would like to temper it with another view of objectivity.

Objectivity also implies having a broad perspective. Your primary lens as a partner is law, so you see legal risks and legal cures. An in-house lawyer ought to be much more familiar with her client?s business and ought to have a lens that sees a wider array of issues, means and ends. Commercial resolutions beat legal resolutions.

From this way of thinking, objectivity is higher among lawyers in law departments than among law firm partners. Many posts here bear on the comparison of independence and objectivity (See my post of Nov. 30, 2008: can a lawyer who counseled on a matter then deal objectively with a lawsuit that arises; June 10, 2008: general counsel is objective so should be good head of risk management; Feb. 19, 2006: in-house lawyers risk ?going native? compared to ?independent? outside counsel; Oct. 6, 2006: all boutique firms are dependent on deal flow; March 30, 2006: contract general counsel can be more objective than employee; May 23, 2007: objectivity impaired by bonuses; May 1, 2006: go native and lose objectivity; June 9, 2007: analogy to panel law firms; Oct. 31, 2005: Europe and its argument against in-house privilege; Dec. 7, 2008: SPOCs and imperiled objectivity; and Dec. 7, 2008 #2: District Court view on in-house objectivity.). Boards of Directors sometimes question the balanced viewpoint of internal lawyers, so they retain independent outside counsel (See my post of June 11, 2008: references to Board counsel.).

Full post as published by Law Department Management on January 22, 2009 (boomark / email).