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What big issues are general counsel thinking about these days? And how can law firms lend a hand? A panel of powerhouse GCs counted the ways at the ABA Section of Litigation’s 2013 Annual Conference.
Moderating the session — the panel’s sole law firm representative — was Patricia Lee Refo, a former Litigation Section chair and partner at Phoenix’s Snell & Wilmer. The questions she posed to her in-house counterparts involved topics such as globalization, ever-expanding regulations across agencies and jurisdictions in the U.S. and abroad, and the legal ramifications of technology on businesses.
“Compliance issues … are clearly top of mind for us,” said Cornell Boggs, senior vice president, general counsel and corporate secretary for Dow Corning. Although the company is based in Midland, Mich., Boggs said he recently had a management compliance conference call with employees in Beijing, Japan, Belgium and Brazil, as well as the U.S.
Boggs said it’s important for his department to help the company keep pace with legal changes as the relationship between regulatory agencies across the world is becoming more seamless. He also emphasized the need to assure his board of directors that employees are complying with domestic and foreign laws and regulations involving areas such as fraud, bribery and acceptance of gifts and entertainment.
Randy Hayman, general counsel for the District of Columbia Water and Sewer Authority, underscored the growth and complexity of the regulatory state.
“The world of regulations, especially at the federal level, as we all know, has been growing,” he said. Hayman recalled a Texas congressman’s observation in 1995 that in 1932, there were about 5,000 pages of federal regulations. By 1995, there were 60,000 — higher than the Washington Monument if stacked.
“Now I haven’t taken the time to do the calculations, but I assure you [the number of regulations] have grown exponentially” since then, Hayman said. He noted that he relies on outside counsel, industry lobbyists and other experts to help his department stay on top of developments.
Boggs gave an example of how outside counsel can support their in-house clients.
“I have no way to personally stay up on laws in the Netherlands — parts of the world like that — but I do know that my outside counsel in Belgium has connections with [the company’s lawyers there],” he said.
Barbara Daniele, general counsel of GE Capital, Americas, said she employs outside counsel to help her department prepare what it calls an early warning system to alert the company to trending issues. Law firms with expertise in areas such as the U.C.C., banking law, securities law and antitrust prepare monthly newsletters on specific topics. The newsletters are funneled through subject-matter experts at the company who route the information, if relevant, to appropriate departments. Sign-offs are required, and everything is archived, Daniele noted, so the system can help document the company’s due diligence for regulators if necessary.
Related video: General Counsel Share Insights on Cybersecurity
Data security, privacy and other cyber issues also keep general counsel up at night, the panelists said.
Dennis Kerrigan, executive vice president, general counsel and corporate secretary for commercial insurer Zurich North America, said data collection, storage and transfer laws and regulations vary across jurisdictions and overseas. “Without effective governance, without a policy upfront to handle it, you’re going to be in deep, deep trouble,” he said.
Jeannie Frey, senior vice president and chief legal officer of Presence Health, an Illinois-based hospital and senior-care network, noted that thorny legal issues involving data theft and loss arise from B.Y.O.D., the “bring your own device” expectations of employees and customers who demand access to networks through smartphones, tablets and other portable electronic equipment.
Boggs added that B.Y.O.D. can also create employment law problems when employees access the company’s network during nonwork hours. And Hayman underscored the cybersecurity problems his utility company must be attentive to. “We provide water to the White House,” he noted.
The electronic world is also on the minds of general counsel when it comes to social media use, panelists said. An inappropriate tweet by an employee can spiral into a legal headache, some observed. Kerrigan said that his company decided to cut off social media sites on workplace computers but allows employees to access Facebook and Twitter from their personal smartphones.
How can law firms help their in-house clients navigate the legal issues on their plates? Panelists agreed that the issue-focused newsletters and other alerts they receive from law firms can be helpful. But they said it’s important to either send them out within a day or two before other firms get the same idea, or to take the time to give more context and analysis than more immediate alerts would be able to provide.
Frey suggested that law firms make their internal CLE programs available for current or potential in-house clients, both to educate general counsel on cutting-edge issues and to demonstrate the services the firm can provide.
“How does a law firm get on your radar screen in the noise of your day?” Refo asked the panelists.
Hayman noted that he tries to make time occasionally for brief pitches from law firms, but they need to be worth his attention. The lawyers “need to come and show me that they have experience in what I need to do,” he said. “I don’t need to hear the ‘good general litigation law firm.’ I need to hear, ‘We know you have a lead case, we have this background, we have this experience with EPA, and we have this success record.’
“That goes a long way.”