To the construction lawyer in private practice working yet another long night during a forgone vacation, life as an in-house counsel may seem like a dream job. How nice it must be to serve only one client, to be in control of your own calendar, to be able to delegate unwanted work to outside counsel, to escape the yoke of the billable hour, and perhaps most of all to find the elusive holy grail of life as an attorney: achieving that mythical state of being called work-life balance.
January 19, 2017
On the Inside Looking Out: Thoughts on the Pros and Cons of Life as In-house Counsel
William S. Hale, P.E., Rebecca Tierney, and Jessica R. Bogo
Under Construction decided to find out whether the realities of life on the inside are as utopian as imagined. With the help of a (not entirely scientific) survey of the Forum’s Division 11 members and one-on-one interviews with distinguished in-house practitioners, we found out that the answer mirrors inside counsel’s least favorite research conclusion: it depends.
As long as we were at it, we asked some foundational questions (as litigators we felt compelled to) in order to see if there were any commonalities on the road to an in-house position, and some self-interested questions to see what we as outside counsel can do to improve the lives of our in-house clients.
The Path to the Inside
Our 37 survey respondents practiced about 330 years before going in-house, or an average of just less than nine years each, with nearly half having practiced six to ten years. Less than a quarter had a construction-related undergraduate degree. Thirty-two of our respondents worked at a law firm prior to going in-house (86%), while only four started out as in-house attorneys. Of the thirty-two that worked at a law firm, seventeen worked at a firm with 100 or more lawyers. Nearly two-thirds of respondents are currently working for a contractor or subcontractor.
The Perks of Being Inside
One of the principle benefits of going in-house is that “you really are part of the team,” according to Karen Blose, a former in-house attorney and current principal at AEdvise LLC in Burlington, New Jersey. This sentiment was echoed enthusiastically by a number of survey respondents, e.g. “[b]eing part of a family that has each other’s back. Law firms are not that way. Construction companies are!,” one respondent raved, while another identified “[f]eeling a part of the team, a true confidant and not a ‘consultant’ or ‘gun-for-hire’ in a way outside counsel is often viewed,” and still another said “[p]ersonally, the biggest benefit is being part of a team and not being an outside contributor.” Other respondents were of like mind with Wes Bonnheim, General Counsel at Papich Construction in San Luis Obispo, California, who notes he “enjoy[s] being involved in business decisions.”
Other benefits noted include “the obvious benefits such as ‘no hourly billing requirements’” and “not tracking minutes,” “[d]ealing with a huge range of issues every day – constant variety,” and feeling more connected to the world around you—“[practicing in-house is] a more fun way to be a lawyer because you contribute to society by being a part of an entity that does something/produces something tangible. You could point to the buildings and know you contributed to their existence.” And yes, a few respondents did identify work-life balance and quality of life as benefits, but as one of our interviewees noted, the degree to which they are achievable really depends on the culture of the employer.
But It is Not All Sunshine and Roses
Working in-house presents its own set of challenges, of course. By far the most common challenge noted by our respondents was the breadth of issues across mulitple practice areas that you are expected to address: “[b]ecoming involved in a much broader range of legal issues than when in private practice and concentrating on just construction law issues,” “[b]ecoming a generalist, versed in construction law as well as insurance, employment law, products liability, ERISA, etcetera.” Other common challenges noted include “[w]earing multiple hats including risk and compliance manager,”“lack of resources,” and “[n]ever ending meetings.” Even workload was identified as a challenge: “[v]olume and pace of the work. Rather than working on 10-25 large matters, I am working on hundreds of matters, ranging from conracts to litigation to general business matters.”
What Can Outside Counsel do to Help?
Several common themes emerged from our interviews concerning ways outside counsel can help make life easier for in-house counsel. All of them really boil down to knowing a particular client. Providing periodic updates on new cases of interest can mitigate some of the breadth of practice and resource issues. Communication on the status of matters at the frequency the client wants, and being responsive to client requests and understanding the client’s timeline can help with workload management—i.e. when the bid deadline is 2 p.m. today, a law review article next week does not help.
Advice to New In-House Counsel?
“You have to be available to the resources that will help you do your job of protecting the company,” says Blose. This was also a common benefit of going in-house noted by the survey respondents, e.g. “[t]he opportunity to advise clients prior to issues arising,” “[a]bility to be involved up front in all sorts of strategic decisions and to prevent litigation,” “[w]ork[ing] directly with clients [and] focus[ing] on problem solving and avoiding litigation,” “[b]eing able to impact day-to-day deicsions when an issue occurs, rather than litigating after the fact.” To do this effectively may require sacrificing some of the perks that go with working at a law firm, such as a private office, to ensure that you are in contact with the people that need your help the most. If the rank-and-file are comfortable coming to you, you may be able to avert problems before they rise to the level of the executive suite. As another survey respondent commented, working in-house is “[s]o fun if you can get the project teams to include you up front in project planning and identifying greatest risks,” but can be “a challenge when they do not.”
Wendy Venoit current chair-elect of the Forum and a partner at Hinkley Allen and former Vice President, General Counsel, & Secretary for Suffolk Construction, advises new in-house attorneys to “[t]ake everything with a grain of salt. You are dealing with a lot of personalities and politics that you may not understand when you get there. When you hear things or people tell you things – don’t immediately react or rely on it. Always remember that they are ultimately your client and you need to treat them like a client. That doesn’t change just because you’re in-house.”
Benefits of Forum Membership?
Lastly, this article would not be complete without noting the benefits of membership in the Forum for in-house attorneys. As Leslie O’Neal, former Forum chair and current associate general counsel at Brasfield & Gorrie, L.L.C., an ENR top 100 commercial general contracting firm, notes, the relationships built up through the Forum with attorneys across the country can be an invaluable resource when you work for a company with a nationwide footprint. Jayne Czik, General Counsel and Chief Compliance Officer for Citnalta Construction Corp., agrees and notes that in addition to the networking benefits (useful in finding both legal as well as business resources), the speaking and writing opportunities within the Forum are also invaluable in building advisory (as distinguished from litigation) skills, which are critical to client service in-house as well as for outside counsel.