Most of what law departments do is reactive; proactive is a buzz word

Every now and then an in-house lawyer may learn of proposed legislation and alert clients to its possible effects. Here and there a lawyer passes on advice based on a court’s ruling or experience from a deal. Lawyers can sometimes be ahead of the game.

And yet: mostly, law departments handle work when clients initiate it or fall into problems. A law department can try to be as prepared as possible, but shouldn’t jump the clients’ gun. The over-use of the term “proactive” stems more from wishful thinking than from reality (See my post of Sept. 17, 2006: proactive counseling criticized as a term; Oct. 16, 2006: attribute of outside counsel; Feb. 10, 2007: desired attribute of inside counsel; Feb. 14, 2009: clichéd term; May 21, 2009: Nestle and its claimed proactivity in the legal department; and Jan. 28, 2011: a jargon giant.).

Law departments are service functions; they serve when another function – the commercial side of the business – creates a need for their services (See my post of Sept.22, 2009: Peter Kurer’s comparison of business managers and lawyers.).