In Their Own Words: Corporate Counsel Speak Out

 An Inside View of Corporate Counsel

Although misconceptions linger, the stature of corporate counsel has taken a leap forward since the 1980s, when many corporations began to revamp their legal departments. In-house positions can no longer be dismissed as the "slouch" jobs.

By Dianne Molvig

In the past, in-house lawyer positions were thought best suited to two groups of attorneys. Those nearing retirement could go to work for corporate legal departments, where they'd find a quiet place to while away the final phase of their legal careers. Other lawyers who had failed to progress along the partnership track in private law firms could take refuge in the less demanding in-house environment. The word "in-house," when applied to lawyers, became synonymous with "out to pasture" or "out of the running."

Tied to those stereotypes were misguided perceptions about what in-house lawyers did. Descriptors like "gatekeeper" and "traffic cop" popped up often. People assumed that in-house lawyers tended only to mundane legal tasks, contracting the substantive work to outside attorneys. Many corporate counsel will tell you those old images are far from dead.

"To some extent a corporate lawyer is still seen as a second-class attorney," says John Higgins of Nationwide Enterprise, the Milwaukee-based trial office of the Nationwide Insurance Group, "not only because we're perceived as not practicing 'real' law, but also because we represent a corporation rather than individuals."

Although misconceptions linger, the stature of in-house attorneys has taken a leap forward since the 1980s, when many corporations began to revamp their legal departments. Complex legal work came back in house, rather than being farmed out. Big-name national companies succeeded in luring top-quality lawyers away from private law firms. In-house positions can no longer be dismissed as the slouch jobs.

At the same time, lawyers working for corporations shed the "in-house lawyer" term, with its old baggage, and replaced it with a new name: "corporate counsel." (That's not to be confused with "corporation counsel," which refers to attorneys who work with a government unit, such as a county or municipality.)

Still, "corporate counsel" is an umbrella term. The lawyers who stand under it are as diverse as any other attorney subgroup. Some do nothing but litigation work; others never step into a courtroom to argue a case but work closely with outside litigators. Some concentrate in one area of the law, such as real estate or environmental law; others are generalists. Some work daily alongside dozens of legal colleagues in their corporate offices; others comprise one-person legal departments.

"Just as I wouldn't paint all lawyers in private practice with the same brush, neither would I do so for all corporate lawyers," says Kathleen Rivera from Northwestern Mutual Life in Milwaukee. "And while I think outside lawyers sometimes are inclined to be dismissive of us, those we encounter - whether they're lawyers we're working with on a case or those on the other side - quickly learn that we know our stuff. We know our clients. We know the substantive areas of the law. We're working lawyers."

The Corporate Attraction

Why have some Wisconsin attorneys been attracted to corporate counsel positions, and what holds them there? One strong plus for many is the chance to do preventive law.

"I see that as the key difference between inside and outside counsel," says Mike Mulcahy of the Gehl Co. in West Bend. "As outside counsel working with a company, you normally get a legal problem after the shoe has dropped. You work on damage control. I'd be less than candid if I were to say that in 23 years that hasn't happened to me, too. But it's something outside counsel has to deal with much more often. An inside lawyer is able to be familiar enough with the business to prevent legal issues from becoming problems."

Mulcahy's preventive tactics include giving presentations to Gehl's employees in the sales and service divisions, and to staff in Gehl's credit company. He familiarizes them with proper procedures up front. Another way to ward off problems is a matter of "just being here," Mulcahy says, "in the same building or a telephone call away. People don't feel reticent about calling me, whereas if they had to call someone on the outside and they knew the meter was running, they might wait until the other shoe drops."

That ability to spot potential legal trouble and steer clear of it not only benefits the corporation, it's also the source of professional satisfaction for corporate counsel. "I feel I am more fully a business counselor," says Ron Mc Cray who came to Neenah-based Kimberly Clark in 1987 after four years of practicing corporate law in a private law firm. "When you're in the private practice setting," Mc Cray points out, "you tend to be a step or half-step removed from complete understanding of the business milieu. You don't have as good a feel for where the business is, where it's going, why it's going there, who the people are, what the appetite for risk is and what the corporate culture is."

Being in the thick of all that appeals to Mc Cray and, like Mulcahy, he finds it professionally rewarding to be involved "early in the business goings-on," he says, "so I have the opportunity to develop legally friendly approaches to business endeavors. I prefer to do it right the first time than to be the one who has to try to fix it later."

For Sigrid Dynek, working with business issues was a key factor that drew her to a corporate counsel career right out of law school. (That's rare today, she notes. Most corporate legal departments hire only experienced attorneys.) Dynek went to work for A.O. Smith in Milwaukee in the early 1970s, at the height of the "in-house lawyer as gatekeeper" era. Even so, "I never wanted to be a gatekeeper," says Dynek, now an attorney for Kohl's Department Stores in Menomonee Falls. "I wanted to practice law." What made her think that would be possible, given the image of in-house lawyers at the time? "I guess I was optimistic," she says, "I felt that I could, if given a chance, provide a value-added product."

Over the course of her career in two different companies, Dynek says she's been regarded as part of the management team - just like human resource or finance managers - who come to the table to build business solutions. She, too, finds it more rewarding to be an architect of legal strategies in the early stages, rather than being called upon to fix legal trouble after the fact. Plus, Dynek finds other gratification in her corporate counsel role.

"There's no question that if I've made a mistake in judgment and haven't advised the company properly, I'm going to be asked why," she notes. "I have to live with my advice. And I never say 'I told you so.' That's also the intriguing part of this job for me. I like the continuity. This company is much more complex today than it was when I arrived in 1991, and a lot of work of a legal nature has gone into that transformation. So not only do I have to live with my advice, but I can also grow with it."

One Client, For Better or Worse

A corporate attorney has only one client, already built in. No need to hustle to build up your client base. No need, usually, for malpractice insurance, as the client's (that is, the corporation's) retribution for malpractice is simply to fire you.

Michelle Behnke expresses the sentiments of many corporate counsel when she says she's glad to have left client-generation duties behind. She joined the legal department of Madison-based CUNA Mutual Insurance Group four years ago after five years with a private law firm. "When I was in private practice, I did not mind the obligation to participate in client-generation activities," she notes. "But in today's climate, clients bounce around. They hire you for one project and go to someone else for the next. That doesn't mean they don't like your work, but they'll go to the lowest bidder. So (as a corporate attorney) I'm glad I don't have to wake up and say, 'Who am I going to network with today or who will I get a referral from?'"

Even so, corporate counsel practice also has a "sales" side, but of a different nature, points out Rivera, who was a private practice attorney for 11 years before joining Northwestern Mutual Life. "You still have client development challenges," she emphasizes. "As a corporate counsel, you have to make sure people in the company know how you can add value and understand what your role is."

The unique client-lawyer relationship for corporate counsel also is the source of ethical dilemmas that differ from those of private practitioners. For one, corporate counsel often wear two hats: legal advisor and business advisor. "Ethically you have to draw a line between business advice and legal advice," explains Dean Zakos of Modine Manufacturing in Racine. "If you don't draw that line and then later attempt to assert attorney-client privilege or attorney-work-product privilege, the opposing counsel may try to argue that the privilege doesn't apply because you were providing business advice, or mixing legal and business advice. So if you're not careful, you could lose your right to claim the usual privileges that shield your work."

Another type of ethical quandary can be especially difficult for corporate counsel. Because the corporation is the client, corporate counsel's job is to represent the company's interests. But that entity consists of numerous individuals who sometimes come up with ideas or decisions that, in corporate counsel's judgment, pose unacceptable risk for the company. "When that happens, as corporate counsel I have an obligation to protect the corporate interest not simply do what the business person wants. This can be very difficult," Behnke notes.

"Not only can that be an uncomfortable situation," Behnke adds, "but maintaining a good rapport with the business people helps you do your job. If you have a good rapport with the client, the client is more likely to tell you what's going on. Without that information, it's hard to protect corporate interests." (Please see a review of Legal Ethics for Management and Their Counsel in this month's Book Reviews column.)

Professional Puzzles

Besides their special brand of ethical considerations, corporate counsel grapple with other perplexities. "One of the toughest issues I've always struggled with," Mc Cray points out, "is how to know that my skills are where they need to be for my experience level. When I was in private practice, I had five or six people I could talk to to get a sense of where I stood. But here in the corporate environment, I don't have several people at my level in my areas of expertise. I don't have that basis for comparison. How do I keep myself challenged?"

Mc Cray has to answer that question not only for himself but also, as a manager of a team of attorneys, he must make sure their skills measure up. One of the key ways to do that is to "get out of here now and then," he says, "to attend seminars, to meet people who are doing trademarks or patents or whatever your areas of law practice may be."

In other instances, however, getting out of the office may be frowned upon, or at least not encouraged, by the corporate client. Take, for instance, the issue of activism in the State Bar. In private law firms, lawyers' participation in Bar functions and committees is regarded almost as a professional obligation, and as an activity that can boost the firm's image and ultimately attract new clients. But corporations stand to gain little or nothing when their attorneys are active in the Bar.

"People kind of scratch their heads and ask, 'Why do you do that?,'" says Behnke, who's a member of the Bar's Board of Governors and the Diversity Outreach Committee. "In a corporation, your clients expect you to be available during the same business hours that they are working. From the corporation's perspective, participating in Bar activities doesn't necessarily boost the company's image or attract 'new clients' as may be the case when you are in private practice. Therefore, Bar activities may not be viewed as valuable. I use my personal vacation time to participate in Bar activities."

Behnke admits many of her corporate counsel peers don't understand why she's so active in the Bar, either. "Many corporate counsel don't participate in Bar activities because they see the Bar as irrelevant to them, as not meeting their needs. But if you don't participate, how can the Bar know it's not meeting your needs? It's a chicken-and-egg."

By being active in the Bar, Behnke feels she serves as a reminder that corporate counsel are part of the profession. When she's at a meeting and reacts to an idea from the corporate counsel's perspective, "People will say, 'Oh yeah, there is that group out there,'" she notes. In turn, that counters "the perception I think a lot of people have that we don't really practice law ... that we're not really peers."

Tradeoffs - Professional and Personal

To outsiders, corporate counsel appear to have a cushy, nine-to-five existence. If only that were true, lament corporate attorneys. They, too, sometimes put in long days, lug work home at night and come into the office on weekends. And when extra hours are called for, those don't translate into a fatter paycheck.

But corporate counsel also see a bright side: Compared to other lawyers, they find it easier to strike a balance between work and the rest of their lives. In fact, that's what drew many corporate attorneys to their chosen careers in the first place. Take Marv Strawn of the Milwaukee-based Firstar Corp., who worked as a litigator for seven years in both private practice and government positions before switching to corporate practice in 1980. "Every holiday I had briefs due or deadlines approaching," Strawn recalls of his former life. "Every Saturday and Sunday I'd worry about what was coming up that week."

Now that he's a corporate counsel, Strawn feels he has both a challenging job and more time for outside activities. For instance, for 26 years he's been investing lots of personal time in the National Guard. He doubts he could do that if he were still in private practice or government work. "People do it," he points out, "but it's more difficult."

On the other hand, Strawn acknowledges that he's given up the chance to make the higher salaries some private lawyers earn. "When we're recruiting here at Firstar," Strawn says, "we tell people that if you come to work for us, you won't make the really big bucks, but you'll be well compensated. You won't have a steady diet of working late at night and weekends. And your lifestyle will allow you to devote time to interests other than your work."

Tied to the pay issue is the question of prestige within the profession. Unlike their private practice colleagues, who notch their way up the partnership track, corporate counsel don't have a comparable success ladder. Their names don't end up in the company's name. Nor do they enjoy the visibility, both in the legal community and the community-at-large, that comes with being a partner in a firm. All of this contributes to the still prevalent "second-class attorney" image.

Most corporate attorneys seem to take that in stride, citing other benefits. "I get a lot of personal and professional satisfaction," Rivera says, "from developing long-term relationships with people in the client organization. Frankly, in private practice so much of the perception of a lawyer's value to the firm is directly linked to compensation, to what you make relative to your partners. People lose sight of other reasons they're happy to practice law. It's not that money is unimportant in the corporate setting. But it's less likely to be the end-all and be-all of the way you're judged or recognized for your contribution to the organization - and of the way you think about yourself."

Dianne Molvig operates Access Information Services, a Madison research, writing and editing service. She is a frequent contributor to area publications.

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