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Think of experience and learning as a lawyer’s income – they work and they get paid in knowledge – and then think of efforts to harvest and give away that knowledge as a tax. This analogy occurred to me when an interviewee in a consulting project offered an explanation for the failure of knowledge management to take hold. “Lawyers don’t want to contribute their ‘intellectual property’ to the common good.”

“It’s mine, mine, and I don’t want to give up any of it!” That conveys the stickiest obstacle: lawyers who have worked long and diligently to master an area of law and its practices feel that their hard-earned knowledge is their personal recompense (and retirement pool, i.e., job protection). Knowledge management efforts tax it, a redistribution that not only helps those poorer in knowledge but also takes time for the taxpayer to file. Sure, all of us benefit from governmental services, but who volunteers to pay more taxes?

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Among the tools available to in-house attorneys who strive to protect new ideas of employees is defensive publication. An extended discussion of this technique appears in the “Canadian briefings” supplement, at page 5, to the ACC Docket of September 2011. As I understand it, when a company concludes that an innovation is marginally valuable or where “significant naturally-occurring competitive advantages are present,” it might make sense to publish the idea. Doing so creates “prior art” that precludes someone else from obtaining a patent, since patents can only be granted for novel inventions. If someone else has already written about the idea for the public, that prior art denies the later, same idea’s novelty. One more task to consult on and oversee for the inside patent lawyer.

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Benny Tabalujan, ed. Leadership and Management Challenges of In-House Legal Counsel (LexisNexis Australia 2008) at 14, refers to a survey by Mahlab Recruitment in 2008. Mahlab announced that Australia’s in-house lawyers worked an average of 50 hours a week. Later, in a chapter by the editor, he cites a 2008 benchmarking study of 125 legal teams in Australia and New Zealand. That report found that around 1 in 4 of those in-house counsel worked more than 50 hours a week (at 34). The two findings do not cover the same ground, but if 25 percent worked more than 50 hours, 75 percent must have worked less so the average is unlikely to be Mahlab’s 50 hours a week.

I am pushing these numbers hard. Still, this does give a rough idea of self-reported hours worked and some of the challenges of reconciling different pools of data (See my post of Sept. 25, 2005: full-time attorneys are generally in their offices between forty-five and fifty hours most weeks; and May 6, 2010: slightly less than half of U.S. respondents reported that on average they work 40-50 hours per week.). The posts on this blog about chargeable hours per year, a figure I use at 1,800 hours in my General Counsel benchmark survey, also suggests less than 50 hours a week

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A profile of General Mills’ top lawyer, Rick Palmore, refers to the significant amount of time his 50-lawyer team spends on checking advertisements and other marketing materials. The three-page profile is in SuperLawyers, Bus. Ed. 2011 at 221.

The decision whether a claim made for a cereal or other product will hold up to challenge, from competitors and regulators, falls partly on the lawyers and partly on the product development staff. It is one of those grey areas where the proper role of the legal department depends on too many factors to make any “best practice” call (See my post of Aug. 5, 2005: so-called pre-law groups including those who check promotional material; Dec. 3, 2007: rollout of new product requires marketing review; Dec. 17, 2008 #1: software to check promotional material; and Jan. 20, 2009: sometimes lawyers oversee marketing review personnel outside the law department.).

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The law departments of companies with famous and valuable brands spend time combating counterfeit products. Actually, to varying degrees all companies protect their key brands and protect them as vigilantly as they believe is warranted. When you’re Procter & Gamble with 350 lawyers, the intellectual property to be guarded of its well-known brands deserves special attention. It gets it, according to Deborah Platt Majoras, P&G’s General Counsel, who describes some of the efforts in SuperLawyers, Bus. Ed. 2011 at 191.

The P&G legal team works with governments to find counterfeiters and pays special attention to online sellers of fake products. As I read the description of tasks, it seems yet again that the legal component (counsel and interpretation) matters less than the operational details (process, training, communication) (See my post of Oct. 11, 2008: role of law departments in anti-counterfeiting.).

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ILTA’s 2011 Law Department Technology Survey gathered data in December 2010 from 54 law departments. Almost all of them were from the United States or Canada and three out of four were from companies with at least a billion dollars of revenue. The findings included that “Legal IT committees were reported from about one third of the respondents.” That means that even in a group that would appeal to law departments with a heightened likelihood of interest in things technological, since they belong to ILTA, and from mostly large departments, the incidence of technology committees is low.

Arguments in favor of such a committee are varied. There is less grousing about outdated software and technology if more members of the department understand corporate capabilities and limitations as well as departmental budgets. Further, a committee should be more representative of departmental users than other forms of decision-making. Third, apart from the technology decision-making, a committee can bring together lawyers and others who would not otherwise mix. It distributes the burdens of administration and management. Then too, people may believe that collective decision are better than individual decisions. And, finally, committees give people roles, voice, leadership practice.

The downsides of technology committees include demands for meeting time and sometimes a false sense of involvement. Also, committees can be hijacked by geeks and fanatics. They can create more frustration since there is an apparent means to act, but nothing changes. Also, they can slip into technology for its own sake rather than to cost-effectively improve the productivity of the department. Finally, committees of all stripes can degenerate into conflics and dysfunction.

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Two years ago, the International Legal Technology Association (ILTA) surveyed its law department members about their technology, including several specialized kinds of software for law departments (See my post of Feb. 15, 2009: three focused applications.). That survey covered 45 respondent law departments; this year’s increased slightly to 54.

For corporate secretary and entity management this year, four departments reported that they use ComputerShare – GEMS while one department each reported using ICSA Blueprint or NetSuite – OneWorld. That set of applications represents a dramatic change from two years before when the results were Secretariat (Bridgeway) – 20 percent of those who responded and World Records (Transcentive) – 5 percent. The results also listed Two Step Software Corporate Focus – 0 percent and “Other” – 27 pecent. I think the remaining 48 percent had no corporate governance software.

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Five challenges that arise from inept communication often show up in law departments. I wrote about them in my latest National Law Journal article, published on Oct. 10, 2011, and had the temerity to suggest some ways the vorpal blade might snicker snack improve them (if the end of that sentence confuses you, enjoy “Jabberwocky” this weekend, especially with a small child).

If you would like to see the article, click below for my frabjous communication piece.
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ILTA’s 2011 Law Department Technology Survey asked about intellectual property software, but 22 of the 54 respondents had none. Seven others had created an in-house system, which left 25 departments using at least one of ten applications. Those 25 named the system they have installed.

Five each (9%) use Computer Packages (CPI), Thomson Reuters (MDC) IP Manager, or CPA Global Memotech. Four departments (7%) use Thomson Reuters (MDC) IP Master or Dennemeyr DIAMS/DIAMS XE. Three (5%) use Anaqua or CPA Global FoundationIP while one each reported using Lecorpio, RightsLogic, or WebTMS. No one reported using OPSolutions Pattsy, Patrix Patricia, Innovator Enterprise Management System (MindMatters) or ipWorkflow – the last two were identified in the survey two years before. Obviously, the dominant three vendors are Thomson Reuters, CPA Global, and CPI.

From the comparable survey of ILTA two years ago a somewhat different set resulted (See my post of Feb. 15, 2009: 45 respondents reported on three classes of specialized software.) : “IPMaster (MDC) – 14%; Patent Management System (CPI) – 11%; Memotech/FoundationIP (CPA) – 9%; Anaqua (5%); ipWorkflow and Pattsy (OPSolutions), and Innovator Enterprise Management System (MindMatters) – 0%. Along with these seven, “Other” garnered 14%, which probably included custom packages, and “None” 48%.” Not much movement in this niche, at least according to this small sample.

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“In 1330, the Florence Commune introduced the first sumptuary laws: limits on what kind of fabrics could be worn, when, in what styles, by whom, only so many buttons, no fancy patterns, only so much jewelry, not more than so many dishes at dinner parties, restrictions on spending for weddings and funerals.”

This effort to control ostentation and spending reminded me of guidelines for outside counsel: limits on limo service, weekend meals, first class flights, hotel courtesy bars, lawyers at a deposition, and photocopying on colored paper, and wasted paperclips.

As explained in the London Rev. of Books, Sept. 22, 2011 at 22, theological beliefs about sobriety, waste and conspicuous consumption drove the sumptuary restrictions on the populace of the Italian city-state. Likewise, secular theologies animate restrictions on the profligate ways of prodigal law firms.