Thank you for sharing!

Your article was successfully shared with the contacts you provided.
For years, I have thought that “ERISA” would be a good name for a teenage rock and roll band. Other possible choices include CERCLA, PUHCA, or EDGAR. In-house counsel and their primary contacts with outside counsel often share the frustration that can be presented by the specialty areas that are a necessary part of our legal framework. While there may be a desire to have all matters handled in a comprehensive manner by one “all-knowing” lawyer, there are many areas that simply are too complex and, at times, counterintuitive for one person to master. By providing in-house counsel with access to specialists in these areas, an outside counsel can provide valuable assistance to his or her client. In the context of mergers and acquisitions, many in-house counsel today are equipped with the experience and the tools necessary to navigate the various stages of any transaction. But when negotiating a definitive agreement, most lawyers know that the devil can reside in the details. It is at this stage that corporate counsel, particularly at large firms with a diverse practice, will “round up the usual suspects” to ensure that the specialty areas are adequately considered and addressed. Some useful examples of areas requiring an expert include the following: • Environmental. From distinctions in the Comprehensive Environmental Response, Compensation, and Liability Act to the Resource Conservation and Recovery Act, state versus federal laws, and the unusual things that find their way into the ground water surrounding the operating facilities that belong to a general counsel’s client, most lawyers are well aware that this area can raise material issues that easily can transform an asset into a liability. • Employee benefits. The nuances presented by the Employee Retirement Income Security Act can at times be counterintuitive and illogical. They also can arise by surprise in a context that would, on its face, appear to a transactional lawyer to be nonproblematic. Other issues (e.g., the Multiemployer Pension Plan Amendments Act, union issues, and the Worker Adjustment and Retraining Notification Act) can present significant obstacles to a transaction. • Tax. Unlike other areas of law, U.S. tax laws often impose strict liability regardless of a person’s intentions. These issues typically are black or white and, if overlooked, can be quite significant. Taxes also can attach to assets, providing for a rude awakening to the unsuspecting lawyer. • Antitrust. Merger and acquisition lawyers often spot Hart-Scott-Rodino Antitrust Improvements Act concerns, which require government filings for large acquisitions to ensure they are not monopolistic. A missed filing can result in strict liability of $10,000 per day. The U.S. Department of Justice or the Federal Trade Commission also would quickly point out that U.S. antitrust laws extend well beyond HSR and require lawyers to take a careful look at the parties’ actions and intentions in connection with a transaction. • Intellectual property. As Americans’ use of technology has grown over the past 20 years and technology businesses have multiplied, attorneys have become increasingly aware of intellectual property subtleties that affect these businesses. Whether a patent, trademark, copyright, or trade secret, it’s important to have an expert near to navigate these waters. • International. Multinational businesses generally are aware of the complex issues that can be presented by a cross-border transaction. These issues can range from plain vanilla foreign corrupt practices issues to less common national defense concerns (including homeland security) to, most recently, issues under the USA Patriot Act of 2001. THEN THERE’S LITIGATION In-house counsel also often handle ongoing disputes and coordinate litigation internally to reduce legal costs. In this context, the experienced in-house lawyer may benefit from the assistance of outside counsel in a wide variety of specialty areas, including those described above, that may be relevant to the facts involved in the litigation. Additionally, in-house litigators may benefit from the specialty guidance offered by outside counsel in connection with the litigation itself, as follows: • Appellate. It always is wise to consider how issues at the trial court level may play out in the context of a future appeal. To do so, it is helpful to involve an appellate specialist at an early stage. This assistance often can be insightful and may, at times, influence a lawyer’s recommended course of action. • Local counsel. Local rules and procedures can affect any litigation in significant respects. When pertinent, in-house counsel should require outside counsel to be mindful of these issues and should rely on outside counsel to find local counsel and work with them to address these concerns. One of the reasons it is important to have a specialist near is that issues may exist that may be completely foreign to in-house counsel. A general practitioner at a firm also may have limited knowledge in a particular area. These are the issues that worry all lawyers. In-house lawyers can and should partner with their outside counsel to identify these concerns and to address them in a timely manner. In some cases, a lawyer with a big firm may be financially rewarded by the firm to keep and bill as much of a client’s work as possible. Such a myopic approach may run counter to the objectives outlined in this article. In-house lawyers do not want their corporate lawyer to be practicing environmental law or learning tax law. Instead, in-house lawyers should make sure that their outside counsel keep an eye on the big picture, involving specialists when and to the extent necessary. Of course, the ultimate goal of in-house and outside counsel is to provide excellent service to the client. As partners, outside counsel can equip in-house counsel with access to specialists that will aid in this effort. By doing so, the in-house lawyer can avoid the embarrassment of the missed issue and ultimately will give the best legal advice. Taylor H. Wilson is a partner in the business transactions section of Haynes and Boone in Dallas. This article originally appeared in Texas Lawyer , an ALM newspaper published in Dallas.

This content has been archived. It is available through our partners, LexisNexis® and Bloomberg Law.

To view this content, please continue to their sites.

Not a Lexis Advance® Subscriber?
Subscribe Now

Not a Bloomberg Law Subscriber?
Subscribe Now

Why am I seeing this?

LexisNexis® and Bloomberg Law are third party online distributors of the broad collection of current and archived versions of ALM's legal news publications. LexisNexis® and Bloomberg Law customers are able to access and use ALM's content, including content from the National Law Journal, The American Lawyer, Legaltech News, The New York Law Journal, and Corporate Counsel, as well as other sources of legal information.

For questions call 1-877-256-2472 or contact us at [email protected]

Reprints & Licensing
Mentioned in a Law.com story?

License our industry-leading legal content to extend your thought leadership and build your brand.


ALM Legal Publication Newsletters

Sign Up Today and Never Miss Another Story.

As part of your digital membership, you can sign up for an unlimited number of a wide range of complimentary newsletters. Visit your My Account page to make your selections. Get the timely legal news and critical analysis you cannot afford to miss. Tailored just for you. In your inbox. Every day.

Copyright © 2021 ALM Media Properties, LLC. All Rights Reserved.