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Editor’s note: On Nov. 2,Texas Lawyer gathered five general counsel and an assistant general counsel to discuss a variety of health law-related topics, including the Health Insurance Portability and Accountability Act; the impact of the Sept. 11 tragedy on their jobs; and their roles in ethical decisions at their health care organizations. The roundtable was held at the Southern Methodist University Dedman School of Law in Dallas. The discussion has been edited for length and style. Brenda Sapino Jeffreys, senior reporter, Texas Lawyer: The health care industry is highly regulated. Talk a little bit about what new laws or expanded laws or changes in regulations are causing you the most concern right now and taking most of your time. Kate Bowen, associate general counsel, regulatory affairs, U.S. Oncology: For me, it’s still the old standard of Stark. With the new regs that go into effect on Jan. 1, we have a lot of physicians who, reminiscent of their old college days, are waiting until the very last minute to figure out what they’re going to need to do on their compensation structure to meet the new requirements. And then, obviously, the second one is HIPAA [the Health Insurance Portability and Accountability Act]. We work very closely with our compliance department, but there is an ongoing attitude, I perceive, that people are still postponing HIPAA preparation, thinking that there are going to be changes, it’s got to be delayed, there’s no way that what we’re looking at right now is what we’re really going to have to live under when it goes into effect, so let’s just not do anything. So probably the biggest part of my time devoted to HIPAA is overcoming that desire to wait and see what eventually comes out. Paula Hagan, assistant general counsel for Texas Health Resources: I would echo her comments and say that in all of the transactions that we are involved in, most of them have to do with complying with the Stark clause and Medicare fraud and abuse, making sure we don’t run afoul of those. Also, kind of in the same boat with HIPAA is we are all trying to be in denial about these regs that are going into effect, but we have formed a council of 48 people to try to sort through all the practical aspects of these regulations. In fact, I brought a prop … the HIPAA regs and comments. It’s 367 pages, double-sided. And the regs themselves are about 30 pages, but you’ve got 330 pages of explanations and comments as well as the Office of Civil Rights also has come out with another 57 pages of explanations. So we are trying to sort through all of that. … [HIPAA] has to do with the protection of electronic health information. And not only protecting the release of this information, but also providing a number of disclosures to patients. We have to summarize how we will use their information and then also track it when we release the information. And in theory, it sounds great to keep everybody’s health information private. But when you’re talking about hundreds of hospital departments systemwide and thousands of employees, it just gets to be really mind-boggling how we are going to get a handle on this. Marcea Bland Lloyd, senior vice president, general counsel and secretary, VHA Inc.: I have spent a fair amount of time trying not to read Paula’s prop. I have never read the HIPAA regulations, but I do have responsibility for their implementation. In addition, there are Group Purchasing Organization, safe harbor and other regulatory schemes that are uniquely suited or designed to address group-purchasing activities. So we are reviewing and revising on a continuous basis our compliance with the GPO safe harbor as well as responding to Senate antitrust inquiries with regard to our group-purchasing organization’s impact, not just purchasing in hospitals, but also the ability of small and new technology companies to get into supply chain management with large medical institutions. So there are a variety of regulations as well as some competitive bidding regulations that are a part of our business every day that take a lot of my time. Michael Regier, vice president, legal affairs and general counsel, SETON Healthcare Network: To say that the health care industry is highly regulated is a vast understatement. I’ve worked in the banking and financial services industry for four years as legal counsel, during the bad years — for any of you who remember the period from 1989 through 1994 and the risk-based capital regulations and the Financial Institutions Reform Recovery and Enforcement Act. That era and that regulatory scheme, in my opinion, has nothing on the regulatory scheme that’s now imposed on the participants in the health care industry. I’m very concerned about HIPAA, although I own my own personal denial about HIPAA. One of my favorite things to do with members of our medical staff is to catch them in the hallway and say, “Dr. Smith, I’m just wondering, what’s your practice doing about HIPAA? Are you all ready or are you going to be compliant?” And inevitably the answer is, “Well, we’re already ready. We’re compliant right now. We’re just fine.” So any of you who represent physician practices, if you take one thing away from this session today, please mention to them that they should get a copy of Paula’s prop and that they should read it. The challenge is that it’s not Y2K. This is not something that you can address by buying an upgraded system or software package. This is operational. This is changing the way that you ask people about information. This is changing the way that you receive information and share information. It is not going to be addressed by electronic information systems or software upgrades. So that’s a major headache. In addition to the things other folks have mentioned, I just want to particularly single out one of my personal favorites, which is the joint commission standards. There are two different joint commission standards, one on significant event review and the review of what are called near misses. … The joint commission standard … mandates that hospitals do an evaluation of events that are called sentinel events, and those can be a rape or sexual assault occurring on your premises, wrong surgery, wrong place, that sort of thing, and that you do root cause analysis to determine what … has gone on. And now the joint commission is asking that we review events that are near misses, those things that could have been sentinel events if something else had happened. We structured our process for the review of those so that it does have fairly extensive involvement of legal counsel because root cause analysis, as it turns out, happens to be a great road map for personal-injury or medical professional liability lawyers should the plaintiffs’ lawyers get a hold of that. So we have lawyers very extensively involved in that process, and it eats up a lot of their time. The other joint commission standard that we are nervous about struggling with along with our medical staff is the new standard on disclosure of unanticipated outcomes, my favorite. That requires the licensed independent practitioner to disclose unanticipated outcomes to the patients or a patient’s designee. And … that’s about as popular as a submarine with a screen door with the members of the medical staff. John Thomas, senior vice president-general counsel, Baylor Health Care System: … I think Michael’s got a great point if any of you do represent physicians directly. The response I often get is, “Well, Stark doesn’t apply to me, why does HIPAA?” Regier: That’s when you say, “Are you wearing a wire?” Thomas: I’m sure everybody on the panel … [has] been in those situations where the first question out of the business person’s mouth or the doc’s mouth is, “Well, we know we can’t talk about referrals and how much business it means to the hospital, but …” Really, the one part of HIPAA that I think causes me the most concern specifically for Baylor is the business associate and tracking. It’s mind-boggling to think about how the hospital is going to be required, if the patient asks, to go to all the business associates who may have had access to their information in an appropriate manner and find out how many business associates they have disclosed that information to and so on and so on. Baylor has been very successful with partnering many of our outpatient relationships. I mentioned surgery centers. We have U.S. Oncology. We have a relationship with Texas Oncology. We have aggressively pursued that strategy, and it’s worked very well. Part of the strategy is that kind of integrated patient record so the patient flows freely from a surgery center or from the outpatient oncology to the inpatient setting and vice versa. Radiology is a similar issue. So I think that’s the piece that I’m struggling with the most. Baylor’s got a task force. I think most everybody’s approaching HIPAA in a similar way, and I think we’re moving forward very well with all our disclosures and all those things. I’m fully expecting we’ll be ready. AFTER SEPT. 11 Jeffreys: How have your responsibilities or concerns changed since Sept. 11? Do you have people coming in for bio-terrorism testing? What about disaster preparedness? How do you get ready for something to happen? From a legal perspective, what are you doing? What are you preparing for, if anything? Hagan: It hasn’t changed my job directly, but as a result of the events on Sept. 11, our system has formed a new disaster preparedness council. This is in addition to what the hospitals already do to prepare for disasters, but the types have been expanded. In the past, our hospitals have had disaster drills twice a year to do a mock disaster of an internal and external [nature]. For example, we’ll pretend a plane crash has occurred. So a large volume of patients are having to come to the emergency department, more than we normally would have. And so we do a mock disaster drill. But as I mentioned, we have now just formed a disaster preparedness council to look at issues relating to bio-terrorism chemical spills. The council … [is] comprised of various disciplines in the hospital, ranging from clinicians to information systems people to media. … And the head of it is our vice president of risk management. Lloyd: The most significant changes in our institution have not been in the committees or the approach but rather the resources and the intention. We already had a disaster preparedness task force, if you will, who all of a sudden got money. I was given responsibility for risk management on Sept. 1, and when they transferred the cost center to me, it had a positive variance. On Sept. 18, I was advised to budget for probably 300 percent increases in all of my insurance coverages, which I thought was a joke because anything that has a 300 percent increase is not a budget, in my mind. But the thing that was probably most disappointing for us was we [as an alliance of hospitals] have very complex programs where our hospitals support each other in times of disaster, and our member in New York City, New York Presbyterian, was incredibly well supported by all the surrounding hospitals. The problem was, of course, we had no survivors to treat. So we had a mass response. It worked just like we wanted it to work. People brought people in. Everybody was there. Everybody was on standby. You may have seen it in the media. But the tragedy was we were not able to treat the number of patients we were prepared to treat. And now we are focusing more on making sure that resources are available and in place and ready to go for the psychological counseling and psychological consequences once we get past, if you will, the immediate emerging issues from the trauma. We expect that mental health care is where we’re going to have sort of the biggest residual impact in terms of actual different patient interactions for people who are involved in rescue or recovery at this point. I guess we anticipate tremendous taxing on all New York facilities’ resources as well as the [Washington,] D.C., area. Regier: [T]here is a renewed energy and emphasis on disaster preparedness planning. What’s been very positive in our community is that the medical community, the Travis County Medical Society, has been actually taking a very strong leadership position with the leaders from the medical staffs from all facilities in the community. And our [Austin] market is … divided roughly 55 percent to SETON and 45 percent to HCA-related facilities. And they have led the effort in a very collaborative way to look at the communitywide response to disaster preparedness. … [Medical facilities] do drills, but sometimes you don’t … focus as much as we should on things like what happened with [Tropical Storm] Allison. … What happens when the disaster hits the hospital and you have to actually take a full hospital out of service? What would you do? That’s the sort of thing that people, I think, have probably not spent enough time thinking about and are spending a lot more time thinking about [after Sept. 11]. Specific to Sept. 11, we operate Brackenridge, which is the trauma center for Central Texas. So we actually are beefing up our pharmaceutical inventories of certain key antibiotics and purchasing some more of the appropriate respirators and decontamination suits to be able to have that available at the trauma center should that be needed. We actually activated the citywide disaster response and Office of Emergency Management Response on Sept. 11 because we were advised by security officials that Austin was thought to possibly be a target at the time, that planes were still sort of in the air and unaccounted for. We wound up having nothing and stood down after about eight hours. Thomas: I’ve had some specific impacts from 9-11. Environmental safety is a function that reports to me, and we’ve had a number of people come into the ER. We had a large group from a downtown bank that opened up an envelope of white powder, and we’ve had a number of issues with decontamination and how to process the patients coming in. I think one of the things I’ve struggled with from a legal perspective is the Emergency Medical Treatment And Active Labor Act, the role of EMTALA with all the patients coming in with fears that they have been exposed to Anthrax. I’m not sure who published it, but it was through the Department of Health here locally. And I think the Centers for Disease Control issued a directive to not test everybody and not hand out Cipro to everybody who walks in who saw some white powder, but wait until you confirm that it was actually Anthrax. I think, clinically, that’s right, at least from what I’m understanding from our clinicians. But I’m concerned that somebody is going to view that as an EMTALA issue or have concerns about it. But I think we’ve got good leadership here with Center for Medicaid and Medicare Services on EMTALA. … I think he’ll have an appropriate response if it does turn into this. Our biggest issue that we’re focused on is just the threat of mass hysteria. Anthrax in particular is treatable if it’s identified early enough. But we’ve had just a number of people coming in demanding Cipro or demanding antibiotics, just a large increase in that. The risk finance perspective, Marcea mentioned this. We’ve heard exactly the same thing. The insurance marks were already very high. We went through a renewal process last year with very good results and still had a 45 or 50 percent increase in our insurance rates from our excess carrier, our excess reinsurance above our self-insured retention. I think that was low around the country. A lot of colleagues … were experiencing 50 to 100 percent increases. After 9-11, I know that many renewals that were on the table were pulled and then re-issued at 500-percent increases. Health care is already under extreme cost pressures, and how are we going to deal with a 300 or 500 percent increase in risk finance premiums? It is pretty traumatic. … [I]f you have any expertise in captive insurance companies and structuring unique risk management programs, it’s probably time to beef up on that and it’d be a good service to your clients. Regier: Along with that, we have the benefit of being a member of Ascension Health, which is the largest Catholic system in the country, based also in St. Louis. So our insurance coverage is negotiated as part of the overall coverage for the system. Our medical professional coverage is largely through a self-insurance trust. But I think the battle is going to be not only with the premium, but [also] the exclusion language. That’s where there’s going to be a lot of discussion and evaluation. Thomas: I’ll respond to that. Before 9-11, we had the flood. Flood damage was already being excluded or we were getting indications that it was going to be excluded. We were already dealing with that. … [T]he capital market for the insurance industry was already hit fairly hard by that. ETHICS QUESTIONS Jeffreys: This question may apply to some of you more than others. As in-house counsel, what kind of a role do you play in ethical decisions at your health care company? Are you ever called upon to give advice or to give legal parameters or regulations with any kind of ethical decision about end of life or medication or any of those kinds of things? Bowen: It doesn’t come up that often. There are two areas within our company — one actually within our company and the other is a little tangential — where ethical issues can arise. The first is in our capacity as a clinical research organization. We do have some questions that we research in the clinical trial area that pertain to ethical issues. Appropriate study populations, questions like that. The other area, which is not directly a part of our responsibility as in-house lawyers but somehow we still manage to get roped in, is when physicians themselves have dilemmas with regard to a specific patient. Again, we are not their counsel, but they do sometimes want general information, and we are oftentimes the first call that they make because they know they don’t have to pay the lawyer fees for it. So usually they are using us as a sounding board to ask about continuing of care in a particular patient’s situation or family difficulties where you may have a difference of opinion on treatment and how to resolve those types of questions. Hagan: My main area of responsibility is with Presbyterian Hospital of Dallas, and I sit on the hospital’s bioethics committee, and I’m also a member of our ethics consult team. And this is a team of people who get together on about a moment’s notice if we need to meet with a particular physician or family member about a patient’s care. This usually comes up in the area of end of life decision-making. One of the most common areas I would say I get a call on, whether it’s to meet with a consult team or even just directly to my office, is a patient who does not have decision-making capacity and has no family member. And so the hospital and the physician are trying to sort through what we need to do in view of state law. I’d say the other scenario might be there’s a disagreement among family members on whether it’s time to withdraw life support or there might only be one family member involved, and that particular family member has a mental disorder or some kind of problem that kind of impairs that person’s decision-making. John and Michael, you might want to chime in on this. These issues are very interesting and tense at the same time. I might be in the middle of a huge project, but when I get a call on a patient issue, I drop everything and we sort through the facts and kind of figure out where to go. Regier: It does make for an interesting day. Let me speak individually about some of my job roles and then departmentally about what the lawyers in my department do. Departmentally, lawyers from my staff participate in all of our facility-based medical ethics committees, and we have a networkwide administrative policy on ethical dilemmas and the medical decision-making process that I’m sure would look pretty familiar to all of you who have worked with different hospitals. I think one of the big challenges and where the lawyers wind up getting more extensively involved now than perhaps they did five years ago is in what people call the futility provisions or the futile care provisions in the Health and Safety Code that went into effect in the ’99 legislative session. That has changed the institutional ethics committees’ role in a way that many of them are now really struggling with. The ethics committee historically has had sort of a very consultative role, to be pejorative, an ivory tower. But they could sit and they could listen to an ethical dilemma and they could give advice to the clinician or the clinicians who are involved, but they didn’t really make a decision, per se. Now the ethics committee, under the Health and Safety Code, is making a decision about when care is medically inappropriate or futile and when it is appropriate for that care to be discontinued over the wishes of a patient or the patient’s decision-maker. So those cases have tended to generate a fair amount of tension, and the legal staff tend to be very involved in those because they’re very process-driven, and the process is laid out in the statute, and you really need to make sure that you’re following all the elements of that statutory process. Individually, I wind up in a lot of different ethics issues of a different nature. Seton is a Catholic institution. We, like all Catholic institutions, are obligated to conduct our operations in compliance with the ethical and religious directives for Catholic health care services. So we have religious sponsors. We have religiously driven values that we have to adhere to in our delivery of service. And that for me winds up becoming a very big part of my job particularly with our relationship with the city of Austin in which we lease and operate the city’s two hospitals. And as we look at affiliations with new prospective partners or other hospitals, are those hospitals engaged in performing services like tubal ligations or sterilizations that if we were to acquire that hospital wouldn’t be able to continue because of our religious values? And to what extent may we be involved in a cooperative or collaborative relationship with others who do engage in conduct that the church would judge as immoral? So the sister/daughter charity who is the vice president for mission has started calling me the in-house non-Catholic, Catholic ethicist. I’m just the liberal white Presbyterian guy who happens to have learned a lot about this through the course of my job. Thomas: Baylor is a faith-based organization. I think that’s an important point Michael made. I came from a Catholic system. Catholics at least spell out the rules a little better. There’s 67 of those directives. I know them very well. … [O]ur assistant general counsel sits on our ethics committee and actively participates in that. My own personal role has been on a consultative basis from time to time on cases, typically the end-of-life type of issues or a dispute among family members over what’s the right type of care to be provided to an incompetent patient and there’s no advance directive, there’s no durable power of attorney, nothing in that form in place. So I have fought in a very public format or been involved in a situation where a mother and wife of a gentleman who was in a persistent vegetative state got in a public debate over what should happen, and the gentleman had never issued an advanced directive. So my one public service message today is: Everybody, get your advance directives, because it is very hard on the family. It’s very hard on the institution, the hospital, the legal department and the ethics advisers over what to do in those situations. We do play an active role. Baylor has instituted or the board has commissioned a task force on emerging technology, some stem cell [research] and what is expected to come out of the genetic map and those kinds of things. So we’ve commissioned kind of a multifaceted group and have gotten multi-religious as well. We’ve got not just the Baptist point of view on this task force to try to think prospectively of how Baylor as an institution, as a faith-based institution, is going to deal with emerging technologies when a physician comes in and wants to try to do a genetic experiment, mutating a gene or taking an embryo, whatever, what Baylor’s response will be, are we going to permit that or not. Lloyd: One of the things that happens in a nonpatient care setting is there are all sorts of ethical issues associated with technology assessments and with the reprocessing of medical devices, which is a hot issue right now. One of the things that I’ve enjoyed most about being involved at the senior management level is the number of times a day I get asked questions that have nothing whatsoever to do with the law. I find that to be intriguing and engaging, without comment as to how qualified I am to answer some of them. One of the things I think is critical for us, as lawyers know, is to make the distinction between giving that advice that has to do with the fact that you’re valued as a colleague that has good judgment and elevating or dressing it up as a legal opinion. What I tell them is when I give you a legal opinion, I expect you to comply with that. When I give you my assessment with regard to some of the other business issues or ethical issues, I think it is a point of reference and a valuable input, but it is not dispositive of the issue. I think the credibility of in-house counsel often is related to the ability to differentiate between legal advice and other advice. I liken my relationship with my CEO to be conceptually like the Mafia family because he asks me things that have nothing to do with the law all the time, and I think the reason he does is because he values my opinion. But again, I feel a compelling responsibility not to just get my way by giving some mumbo-jumbo that sounds legal to have the outcome to be what I would have it be. I think there’s a white line of distinction that we always ought to be aware of because the power of position ought not to be abused to have a disproportionate impact on decision-making that is not sort of legal in its orientation. Regier: I was just going to follow and say I think that I try to do the same sort of differentiation. And certainly, the CEO does ask me for nonlegal advice. I would say I haven’t put it quite the same way to them, that if I give a legal opinion, you have to follow it. But it’s if I give a legal opinion and you don’t follow it, we may be in front of the board having a dialogue, or I may feel that it’s impossible for me to continue to represent the corporation and find that this has been a very career-limiting opportunity for me at Seton. I think that the nonlegal decision-making role that the lawyer plays is really an interesting one. It’s a fun one, but there is a reason why there aren’t more lawyers as CEOs, generally speaking, because we’re trained to be professional pessimists. We’re really trained to see the ways that things go wrong. We’re trained to see the downside. We’re not really trained so much to see the upside in a potential business relationship. So there is a certain way that we’re trained, I think, that affects the world view that we have that for our clients sometimes can be a little frustrating because we do tend to think more about the risks associated with a proposed transaction. Hagan: I would say for those of you out there who are law students thinking about being in-house counsel, it’s very important to develop relationships with your management team, your department heads, your people providing day-to-day operations. You want your management team and all the people you work with to be comfortable with calling you, whether it’s a very major question involving a huge contract or a simple issue that they just need some advice on. It’s just very important to establish those relationships. It’s also what makes the job interesting. I might be working on some transaction where I’m really worried that this has got to be structured just right to comply with Stark laws. And then I’ll get a call from psychiatry saying, “I’ve got a patient here, and he has a service dog, and he has to be admitted to the hospital with his service dog because the dog can detect seizures if he’s going to have a seizure.” So I’m going, “Well, I’m not sure that the Texas Department of Health will allow the dog in the hospital.” Then all of a sudden you’re on the phone with Texas Department of Health saying, “We’ve got a patient with a golden retriever; we are wondering if we can allow the dog in the hospital.” So the questions you get are quite fascinating. Jeffreys: So could you? Hagan: He said, “Yeah. It was up to the hospital’s policy.” Bowen: I think that as health care lawyers, we are most accustomed to dealing in a very gray area. There are very few white-line rules that we are privileged to deal with. So much of our day-to-day practice deals with interpreting shades of gray. And oftentimes, our advice is going to be less than definitive. It will be as good as we can get, but it won’t be that dispositive directive of you must do this or you may not do this except in rare instances. A lot of times, health lawyers will answer with responses like, it just doesn’t smell right. And this can be very frustrating to a client, and I think it is up to us to back it up with as much substantive authority as there is and explain our feeling. But a lot of what we deal with in our advice is directed by the feelings that you get after you’ve read enough of the qui tam cases, the anti-kickback cases. I think that lawyers in other specialties, and particularly corporate lawyers, are far more accustomed to dealing in business-advising roles. I think that’s one of the roles that we should be more comfortable filling, but it’s just not the first approach that most of us come out with. Hagan: [T]he flip side of what Kate is saying is when you get a call from someone with a question and in your mind you have this real lengthy analysis, but they want an answer. And so you give them a short analysis, but you help them figure out what the answer is even though there may not be the perfect answer. Regier: I think also the difference in moving from an outside role to an inside role is pretty marked because you cannot — if you’re going to have longevity in a job as a general counsel — have a Nancy Reagan strategy of: Just say no. You are sometimes called upon to intervene in situations which are not in the organization’s best interest and which may be outright illegal, and yet you have to exercise that role in sometimes indirect ways. So you have to influence business judgment in indirect ways and you have to find a creative and positive and affirming way of telling people that they can’t possibly do what it is that they want to do because you want them to continue to call you. And if you just say no all the time, they’re never going to call again. Dealing with outside counsel, particularly on fraud abuse issues … and particularly in the wake of the Kansas City indictments [United States v. Anderson, a U.S. District Court for the District of Kansas decision in which outside counsel and their clients allegedly violated the Federal Illegal Remuneration Law] has become of increasingly limited value. … I think we probably used to turn to outside law firms to give us memoranda or opinions about proposed business arrangements that might be not exactly within a safe harbor, and now the advice memos are so riddled with the sorts of saving language that the outside firm has to have in the wake of Kansas City about how we have no responsibility to follow up and see how you implemented this arrangement; you as inside counsel may have the responsibility or greater responsibility to follow that. We assume that there’s absolutely no purpose to induce any referrals whatsoever and if any of the facts change, none of this is any good. … Thomas: There’s a huge difference in the advice letters that I’ve gotten before Kansas City and after. I actually expect everybody to do it. Some have not really done that. Maybe that’s because, as we talked about before, the personal relationship you’ve developed and the kind of mutual understanding of the law. Absolutely, there’s been a change in how private practice firms because, in that case, the in-house counsel was just an unindicted co-conspirator. It’s a little safer, but it’s not because Mike is exactly right; you don’t last very long in this position saying no all the time. Regier: You may wind up saying many of the same things to your internal clients because, in fact, they’re true. And it is a gray area that if you’re outside the safe harbor, and you don’t know that it’s illegal, but you don’t know that it’s not. But you may play a much more active role in helping the client assess the risks, understand the risks, and you probably, as in-house counsel, are going to wind up in a situation where matters come through your office and transactions are entered into that have much more risk in some cases than an outside firm would be willing to tolerate by way of the written advice that they would give you. Thomas: Then you have to do exactly what Mike was saying, which is influence the decision a different way. You can’t say no, but you have to influence the decision a different way if you think the risks outweigh the benefits. Lloyd: I think you all have touched on probably the key difference in in-house and out-house practice. That is, the risk analysis and the risk tolerance. But also the other significant difference, part of the same problem, is my most revered outside counsel doesn’t call up and say, “You must be messing up something out there, and I need to work.” They wait for me to self-identify that I have a need for a lawyer. In an in-house position, I think one of the things is being more proactive about getting out and demonstrating that you add value to the consideration of a multiplicity of issues without waiting for the person who waits until they get the summons and complaint to self-identify that they need a lawyer’s involvement. To the extent that people can A) be more comfortable with a higher level of responsibility for assessing risk tolerance and B) market themselves as a proactive piece of the team, it is the best predictor of whether they’re going to make the transition from being in a law firm to being in-house. If you wait for the phone to ring or if when it rings you always say no, it is, as Michael characterized it, career limiting because the expectations and the value placed on in-house counsel is their ability to assess. In fact, a company that only does that which makes me as the lawyer comfortable is not aggressive enough to be successful to meet my financial need, so I won’t stay there. I want people who take some reasonable risks. If you live only in the safe harbor, you will never be indicted, but you also will be out of business by the end of the day on Friday. So what I want is a mix in my management who are cautious, thoughtful people but who are not so risk-adverse that they never do anything outside the safe harbor or whatever the appropriate regulatory scheme is because I believe that that will be opportunity-limiting, and I have six children all of whom are in fancy private schools.

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