There is an emerging consensus that the role of in-house legal departments is changing dramatically, and these changes raise significant legal ethics issues for in-house legal teams. The workload for in-house lawyers, which has been substantial for some time, is increasing in many industries, as in-house lawyers navigate significant increases in regulatory issues and compliance. And the composition of work handled by in-house lawyers is changing: a significant amount substantive work that was previously referred to outside counsel is now being handled internally in corporate legal departments by in-house lawyers. These changes are likely to continue, and to accelerate, because in-house lawyers are more cost-effective for certain matters, more closely connected to the legal issues and principals at the company, and more immersed in the details of the subject businesses. But as the role of in-house attorneys continues to evolve, it is critical to consider the legal ethics implications for the attorneys on your in-house legal team.
- Does Your In-House Legal Team Have Too Much Work? As the workload for in-house lawyers increases, and as the composition of work for in-house lawyers increasingly involves the type of substantive work that companies may previously have sent to outside law firms, consider whether your legal team is in danger of becoming simply overworked. The incentives for overloading in-house lawyers with too much work are significant. Since in-house attorneys typically represent a fixed cost to the company, there is a strong incentive to give in-house lawyers as much work as possible, with relatively little regard for how this impacts the attorneys. If not properly managed, this will lead to attorney stress and burnout. In the worst-case scenarios, this can lead to missed deadlines, mistakes, or worse. Do you have a system in place to ensure that your in-house legal team is not overloaded?
- Does Your In-House Legal Team Have the Right Support? It can be tempting for companies to view in-house legal teams as more cost-effective versions of outside law firms. And in-house lawyers do have certain advantages in access to company personnel and knowledge about company history and culture, that may make them more efficient. But if companies assign more of the type of work to in-house lawyers that they previously sent to outside law firms, they must also consider whether the in-house legal team has the right support systems in place. Law firms have many layers of people and robust technology to ensure that they don’t miss deadlines, for example. Does your in-house legal team have similar resources? If you ask your in-house team to take on more substantive work, do the attorneys have the correct support systems to handle that work properly?
- Does Your In-House Legal Team Have the Right Resources? Law firm lawyers frequently focus on a narrowly defined practice area, and they frequently have access to considerable firm resources that make it manageable to stay up to date on critical developments in that area. Some in-house attorneys are similarly specialized, but others are generalists. If you ask in-house generalists to moonlight as specialists in particular legal areas, make sure they are also permitted enough time, and have access to appropriate training, to learn what they need to know.
- Are Your In-House Lawyers Properly Authorized to Practice Law Where Needed? Law firms spend considerable energy and effort ensuring that their attorneys are properly admitted to practice in the jurisdictions where they work. Chances are high that your in-house legal team is made up of attorneys who are admitted to practice only in the state where the company headquarters is located. If you ask your in-house attorneys to take on the type of work you previously outsourced to law firms, have you also made sure that they are properly admitted to practice where needed?
- Do Your In-House Lawyers Have Access to Legal Ethics Resources? As the role of in-house legal departments evolves, and in-house attorneys and teams take on more of the type of work previously outsourced to law firms, you should ensure that the attorneys on your in-house team have the right access to legal ethics resources. In addition to advising the company on compliance issues and ethics, in-house legal teams must themselves have an internal culture of compliance. Does your in-house team have a robust process in place for attorneys to identify, to assess, and to resolve the legal ethics issues that they face as attorneys?