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Just Walk Away?
If you notice, and I hope you've been paying attention, we focus on these pages mainly with the "how" of what you're doing rather than the "why." Other than a natural inclination to restrict navel-gazing to a few times a year, I think it's a more useful service to our readers to share others' experiences as they go about protecting and furthering the interests of their companies and nonprofits.
But this month, let's treat ourselves to a rare bit of existential self-examination.
In this issue we feature an essay by IBM Corporation general counsel Robert Weber. The essay comes from remarks he originally made in November before a joint gathering of the New York State Institute on Professionalism in the Law and the New York State Judicial Institute.
His remarks, edited here to fit our format and to highlight the best bits, are on the independence (or lack thereof) of in-house counsel compared to their counterparts in private law firms. Along the way he takes aim at other tropes of the in-house legal universe, such as the notion that in-house lawyers should serve as the company's conscience (why just them, in other words).
Weber's take on the role of in-house counsel might seem at first counterintuitive and even provocative, which is what led us to feature his remarks here. There's nothing like trying to get a good debate going in our newsroom. But after we read the article a couple of times, his perceptions and advocacy just made sense.
As you might imagine, he takes on the doubters, and, implicitly, Europeans. "In-house counsel are not under greater threat to independence than lawyers at outside firms," he writes. "I do not believe any objective data supports the notion that they are." This would be news in some quarters. A lot of folks assume that because corporate counsel serve only one client, who happens to be paying their salaries, their hands are tied. In Europe, several jurisdictions explicitly bar in-house counsel from formal bar membership, because they say they cannot be truly independent counselors.
Weber disputes that. First of all, he asserts that lawyers are hired by in-house departments explicitly to provide independent judgment and advice. Second, he says while in-house counsel serve only one master at his or her pleasure, and outside counsel serve many, the difference is insignificant. Law firm partners must cater to clients, and that relationship itself can compromise independent judgment.
If an in-house lawyer feels less than free to do his or her job, he adds, it's the lawyer's own fault. When the lawyer quickly refers certain matters to outside counsel, he is perpetuating the idea that he isn't free to exercise independent judgment.
Finally, he says that part of the deal of becoming a lawyer means having to walk away at some point, whether it's from a firm, a client, or a company. The profession's standards demand it, and it's rare that an attorney would never encounter such a situation over the course of his career.
Don't take my word for Weber's; read the essay. I'd like to hear what you have to say about it. Call or write. Our Web editor, Brian Glaser, would love to accommodate your thoughts on our site.