It’s no secret that lawyers have been stereotyped as evil, stuffy, lying, legalese-spouting, risk-averse ambulance chasers. As the joke goes, “what’s the difference between a lawyer and a catfish? One’s a scum-sucking bottom dweller, the other’s a fish.” William Shakespeare’s famous line in Henry VI, Part 2 – “the first thing we do, let’s kill all the lawyers,” found everywhere from t-shirts to Eagles song lyrics – is commonly referenced to bash lawyers. (It was actually meant in the play as praise for lawyers as guardians of justice and keepers of law and order.)
You have an in-house attorney whom you view as a valued business partner. While having lunch together, you ask him about an employee issue on your team and ask him for a short email summarizing his thoughts. It can be confusing and frustrating when an hour later he sends you an email laden with designations of “ATTORNEY/CLIENT COMMUNICATION – PRIVILEGED AND CONFIDENTIAL” copying the head of Human Resources; pronouncements of potentially dire consequences for the company if you move forward with firing the employee; requests that you obtain approval from someone higher in your reporting structure; confirmations of something you have already discussed with him in person and said you would do; and warnings about forwarding the email on to others. What’s going on? Why do in-house lawyers get so lawyerly sometimes?
First, remember who your in-house attorneys represent. Their client is the company that employs them – not you, or your supervisor, or management, or the CEO, or the Board of Directors. (If you have wondered why in-house attorneys can’t advise employees on personal matters such as tax issues, family law issues, real estate issues, and wills & trusts, that’s the reason.) In most cases in-house counsel can provide legal advice to you about company matters as you are an employee (and representative) of its client, but only where the matters fall within the scope of your official duties. This is why attorneys sometimes remove people from an email thread when they need to provide potentially privileged advice. Unlike many other employees, in-house attorneys must have a valid license in order to practice their craft, and are bound by a detailed code of professional ethics, which includes protecting their clients and their interests.
When outside counsel (attorneys at law firms retained by companies) provide advice to a client, that advice is generally presumed to be legal advice. Legal advice from an attorney to a client is generally considered confidential, and protected from disclosure to third parties, by what’s known as the “attorney-client privilege.” A company has a right to private communications with its legal counsel, and can refuse to disclose attorney-client privileged communications. Unlike outside counsel, in-house attorneys dispense business advice as well as legal advice, or in some cases just business advice. Because of this, there is no presumption that advice provided by in-house attorneys to their client and its representatives (employees) is legal advice and therefore protected by the attorney-client privilege. They have to clearly demonstrate that the advice they are providing is protected legal advice and not unprotected business advice if they hope to assert an attorney-client privilege in the communication.
Additionally, part of an in-house attorney’s central role within a company is risk management. Whether explicit or implicit in a Legal department’s mission statement, part of their job is to facilitate the company’s business objectives while at the same time managing risk to within the company’s stated risk tolerance level. As I explained in my Risk Management 101 blog entry, any risk management decision comes down to some combination of accepting, mitigating, shifting, or avoiding risk. To ensure risk is properly managed, in-house attorneys strive to ensure that business decision-makers understand the pros and cons of a business decision before making a risk management decision. Lawyers often perform a risk management analysis as part of providing legal advice – they identify the potential risks and benefits of a particular course of action (and provide a suggested or recommended course of action if asked or expected to do so), and identify the person or role who needs to make the risk management decision, so that decision-maker can make an informed risk management decision on what to do about the identified risks.
Protecting the attorney/client privilege and managing risk while facilitating business objectives are the two primary reasons why in-house lawyers get “lawyerly” at times – they are doing their job representing and protecting the company and its interests while driving business forward. When an in-house attorney provides legal advice, he/she “puts on their legal hat” and may seek to preserve attorney-client privilege in the advice to prevent its disclosure in later litigation or other proceedings, which could hurt the client. This is why legal advice from an in-house attorney is clearly marked as being attorney-client privileged, why attorneys limit the number of recipients on emails or memos containing potentially privileged advice, and why in-house attorneys sometimes state that the email or memo should not be forwarded without their permission. If an in-house attorney formally asks you to do something in an email or memo that you have already discussed with them, this too is to help preserve privilege by ensuring you are acting at the direction of or under the supervision of counsel.
With respect to the legal advice itself, the attorney’s email may seem like “doom and gloom” by pointing out the risks (as well as the benefits) of a course of action, but the role of in-house counsel is not to accentuate the positive and eliminate the negative – our job is to facilitating the company’s business objectives while managing risk. A good attorney does not say “yes” or “no” to a particular course of action (unless it’s illegal of course), but instead points out all the material pros and cons, provides an opinion if asked, and then lets the appropriate decision-maker call the ball on what to do about the risk. In-house attorneys strive to ensure that decision-makers are making informed business risk management decisions based on a solid analysis of the pros and cons, not a quick decision based only on the potential benefits of doing (or not doing) something.
The next time your in-house lawyer starts sounding more lawyerly than normal, there’s likely a good reason they’re doing it — so suppress that urge to follow Shakespeare’s suggestion.