Frequently Asked Questions

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Good question! In-house counsel can mean any lawyer who is employed as a lawyer by a corporation. As a title, “In-House Counsel” (I’ll use capital letters to distinguish the title from the role) usually designates a junior or intermediate position, and often implies a limited scope of work. “General Counsel”  are also employed by corporations and are senior lawyers with considerable industry experience. The role is also a senior management position and may be a “C-suite” position whether or not designated as “Chief Legal Officer”. All General Counsel are in-house counsel (the noun, not the title). External counsel is a term used by in-house counsel to distinguish lawyers from external law firms who do work for the corporation, usually on a file-by-file basis, with a specific scope of work. 

It's important to note that there are no hard and fast definitions for the first three roles and the scope of work will vary from case to case. The following are general statements:

In-house Counsel work exclusively for a corporation and are salaried staff. They have one client: the corporation. Larger companies may have more than one in-house lawyer who each specialize in a particular transactional or operational area. In-house Counsel are generally, though not necessarily, less experienced lawyers or may have less subject matter experience in the corporation’s business space. 

General Counsel work exclusively for a corporation and are salaried staff. General Counsel are part of the senior management team and may alternately be titled “Chief Legal Officer”. Activities vary from case to case, but the main difference between In-House Counsel and General Counsel is that General Counsel are senior lawyers, sit on the senior management team, have broad subject matter experience in the corporation’s business space, and commensurate legal experience. Studies show that the work of a General Counsel includes both legal work, and senior management work. Often General Counsel also act as corporate secretaries to the corporation’s board.

External Counsel work at a law firm. They act on behalf of their clients when called upon to do so. They will generally have many clients and work on demand on an hourly or set fee basis. At larger firms, external Counsel often have areas of expertise and practice preferences. Where a client issue is outside of their area of expertise, they will refer the matter to another lawyer in their firm who has the requisite transactional experience. Generally, external Counsel do not have deep subject matter experience in the client’s business, but rather have deep legal transactional knowledge to assist the client. External Counsel are generally retained on an as-needed basis, or reactively, as they do not have day-to-day contact with their clients.

Fractionalized Retained General Counsel is an increasingly popular model of legal service which is designed to maximize and focus utilization. A lawyer with deep subject knowledge experience provides General Counsel service to a limited number of corporations who do not have in-house legal staff. Rather than being employed by any corporation on an full time basis, the retainer is limited to a fixed or flexible number of hours per month. For example, a corporation may want retained General Counsel to attend a weekly senior management meeting, review contracts and subcontracts, and be available by phone for issues on demand. They estimate that on average this will take 15 hours a month. The relationship is on-going. The retained General Counsel becomes part of the senior management team, accumulates corporate institutional knowledge, and gains increasing familiarity with day-to-day operations and projects, which results in improved levels of service through a virtuous circle of deeper corporate insight.  The retainer can be modified as time goes on to add or reduce scope and time as agreed by the parties.

Unlike the external Counsel model where the client brings issues to external Counsel, the retained General Counsel model, like any in-house model, is proactive. Retained General Counsel scans operations and identifies actual and prospective risks. Actual risks are managed by early tactical management, negotiation, and resolution before they grow out of control. Prospective risks are managed by revising contract terms or by modifying policies and procedures before issues arise. 

My experience is that most small and medium sized companies would be hard pressed to utilize a full-time in-house lawyer. By hiring a full-time lawyer, you are paying a full-time lawyer’s salary plus benefits, and only getting partial value. By considering fractional services, you obtain a senior, experienced lawyer with deep subject matter knowledge and General Counsel experience for a fraction of the cost of hiring the equivalent on a full-time basis. I discuss the Pareto Principle in my first blog post, and why it makes good economic sense to consider fractional retained General Counsel.

In a consultation, I learn about your business, how you manage and operate, your team’s strengths and weaknesses, where you find success and your pain points. We’ll discuss a check list of items I’ve developed to uncover areas where my experience and skill set can add to your senior management “bench strength”.  Together we'll look for important areas you may be ignoring. The objective is to find ways to bring immediate, proactive risk reduction, and identify means to scan for potential or actual commercial and project risk. Based on our meeting, I will provide a proposed scope of work, and estimated time and costs for you to consider. 

No and no, again.  My professional obligation and ethical imperative is to provide you with frank and fearless advice.  Your right is to accept all, some or none of it because it's your business and commercial expediency is a legitimate basis for decision making, so long as it is within the rules of law.   I've seen many cases where staff and consultants are scared to give "the boss" their best advice.  Surrounding yourself with "yes" men or women is not good for business.  You want your advisors to give you their best.   When you are fully informed with sound, logical, and experienced analysis then you can make the best decision for you and your company.   

I believe strongly that the best companies create a psychologically safe space for their staff to present new and contrary opinions without fear of reprisal.   As an independent contractor to your company, and as one bound by the highest professional standards, I will "tell it like it is", frankly and fearlessly.  Genuine disagreement and conflict may be uncomfortable but is a key source of innovation, and a critical process in identifying and mitigating risks.  For me, being forthright in a professional and respectful manner, is an important value to bring to risk analysis and mitigation for the benefit of your company.  Anything less fails to meet professional standards.