Articles Posted in Structure

Many in-house counsel spend more hours in their office than they do anywhere else awake. How they fill, design, and maintain their little plot tells much about them. Those individual – or mandated – features of an office, such as desks, chairs, cabinets, also shackle or enable productivity. Workspace design as a topic sprawls far beyond this sparse post, but I have pulled together what I could locate on this blog about various accoutrement of individual offices (See my post of Dec. 16, 2005: ethnography; June 24, 2007: how people decorate their offices and walls; Sept. 27, 2009: the calming whisper of flowing water; and Sept. 30, 2009: a lawyer’s individual office .).

Desks: (See my post of Nov. 8, 2005: SEI Investment’s completely mobile desks; Feb. 2, 2008: piles; Feb. 13, 2008: the messiness or orderliness of a general counsel’s office gives clues; and Nov. 17, 2008: piles on desks and procrastination.).

Bookshelves and cabinets: Hard as it may be to believe, in 6,006 posts there is not a single reference to bookshelves or cabinets.

From guest blogger Jeff Kaplan at Kaplan Walker, an expert on compliance.

“The need for strong FCPA compliance measures is not likely to go away any time soon. The flow of FCPA investigations and prosecutions shows no sign of abating – if anything, the bounty provisions of the Dodd-Frank Act will add further fuel to the fire. And, with the new U.K. Bribery law and other initiatives outside the U.S., a more global (if not universal) era of anti-corruption enforcement could be at hand. As well, various government agencies have recently signaled degree to an unprecedented degree their expectations that companies have robust anti-corruption compliance programs, meaning, among other things, programs with sufficient resources and independence. However, for some companies meeting the challenges of these expectations can, from a staffing perspective, be difficult.

Law departments that are unable to hire a full-time in-house FCPA attorney should consider deploying an “inside/outside” counsel model for anti-corruption compliance. The basic approach would entail assigning an outside attorney defined ongoing compliance program operational duties, i.e., the types of responsibilities typically reserved for in-house counsel. By going this route, a company can gain access to anti-corruption expertise for routine but sensitive matters (e.g., reviewing requests for hiring third party agents or providing travel to government officials). Also – because of the nature of the relationship (i.e., retention, not full-time employment) – it can build an important independence component into its compliance program.”

I tried to find my prior writings on globalization and lawyers who practice “international” law. It is a polyglot group, to say the least (See my post of April 9, 2005: globalization of legal issues may be exaggerated; July 20, 2005: practice area benchmarks suggest less than 10% of in-house lawyers are “internationalists”; Feb. 12, 2006: the terms international, transnational, and multi-national; April 7, 2006: international lawyers in the US; March 19, 2006: modest international trade by US companies; March 13, 2008: high pay for “international lawyers” may be swelled by ex pat surcharges; July 13, 2008: globalization; July 27, 2008: is globalization driving the agendas of law departments; July 27, 2008: questions on definition of term; March 2, 2009: specialists at headquarters and commercial lawyers in international regions; July 1, 2009: vague, diachronic force; Oct. 15, 2009: formula regarding international revenue and in-house lawyers overseas; and Oct. 15, 2009: “global” department if more than 25 percent are on two other continents.).

It is a tough subject to get your arms around because so many ideas touch it. Locations of offices outside the US, ex pat lawyers, and lawyers hired in a foreign country have each earned a metapost (See my post of Sept. 16, 2008: foreign locations of in-house counsel with 11 references; Jan 12, 2009: ex pat lawyers and their costs with 7 references; Jan. 11, 2009: overseas staff and hires with 6 references.)

A survey of 80 US law departments in 1989 classified the lawyers in those departments into eight practice areas. The largest group was “General” (26%) followed by “Intellectual Property” (22%), “International” (11%), and then “Litigation” and “Government” (both at 9%). In the smaller practice areas were “Corporate/Securities” (7%), “Labor” (5%) and “Other” (11%). This data comes from Richard H. Weise, Representing the Corporate Client: Designs for Quality (Prentice Hall 1991), Chapter 3, at 3-Ex-25.

Coincidentally, Corp. Counsel, Dec. 2010 at 87, includes data from 114 law departments (mostly US, I believe based on past surveys) in the latest ALM Legal Intelligence survey. It shows 27 practice areas so the fit with the eight of Motorola is modest. Even so, “Commercial/Contracts” (19%), by far the largest area, may correspond reasonably well to Weise’s “General.” For ALM, “Intellectual Property” (9%) is much less than the Weise survey, but two reasons may account for that. I suspect that Weise’s company, Motorola, invited companies with significant patent activity and, second, many law departments have moved patent prosecution largely to law firms.

As to litigation, the ALM survey breaks out “Personal Injury” (1%) along with “Product Liability/Class Actions (1%) and “Litigation” (11%) so its total of close to 13 percent is larger than the survey 20 years before at 9 percent, but not that far off.

Sandy Samuels was Countrywide’s general counsel for 18 years, until Bank of America acquired the huge mortgage services company in 2008. Corp. Counsel, Dec. 2010 at 18, writes that “Samuels built the legal staff at Countrywide from nine attorneys to more than 250.” As a percentage increase almost 3,000 percent, the ramp up was awesome, but law departments that began with one lawyer – don’t they all? – could beat that if they grew to 30 or more. Twitter, to name one, has blossomed from a single lawyer to more than 25 in a couple of years.

In terms of absolute numbers of lawyers, the 240-plus added under Samuel’s watchful eye deserve an entry in the Guinness Book of World Records. Mergers of huge companies don’t lead to anything like that expansion since they typically result in huge layoffs or attrition. Other law departments that have mushroomed – think Google – may not have had the same general counsel during the boom. Countrywide went down in flames, but not for a lack of lawyers steadily added by its long-serving general counsel!

Sometimes referred to as the risk professions, this quartet has overlapping but distinctive roles. I recently heard these broad definitions and added my own for audit.

Law interprets statutory and judicial rules and makes sure internal constituencies understand them. Compliance applies the rules to day-to-day conduct and monitors the level of observance. Risk supervises and manages risks, including those associated with inadequate compliance. Audit checks on specific instances of compliance or not, especially financial controls.

One view is that compliance and audit serve as police functions, looking back at behavior. From that vantage, law and risk look forward and try to prevent problems.

A supplement to the ACC Docket, by Sutherland Asbill & Brennan, Summer 2010 at 6, discusses approvingly the establishment by companies that license their patents to others (“outlicensing companies”) of a separate corporate licensing team. The team should operate on its own, not part of law or business development, and it should include an interdisciplinary mix of staff, including from the legal department. BellSouth is cited as an example of a licensing team, one that included more than 30 professionals.

The complexity of big-league licensing agreements, the article argues, and the length of time required to hammer out the terms on many of them, or the funding associated with both make it better to create a distinct group (See my post of Dec. 31, 2007: intellectual property licensing with 12 references; Nov. 8, 2009: most patents make no money; and July 15, 2010: Motorola’s licensing structure.).

The American Intellectual Property Law Association’s (AIPLA) Rep. of the Ec. Survey 2005, at 5, states that 27 percent of the 1,558 survey participants practiced in-house, with fully a third of them serving as the head of the Corporate IP department. When they estimated how much of their time they spent by technical specialization area, the average results for IP chiefs were 26.8 percent chemical, 26.4 percent mechanical and 14.1 percent electrical. For those 140 top IP lawyers, therefore, the three broad areas consumed on average two-thirds of their time. Perhaps with the ascent of biotechnology in recent years, the 2010 distribution will alter.

For non-technologists who manage IP lawyers or for those who might gather benchmark data about the services provided by IP lawyers, it is good to know not only terminology but also a framework for the kinds of work they do.

One final point comes from the Report: for all the corporate IP lawyers, 70-80 percent of their time goes to patents, with the remainder to trademark, trade secrets and other domains.