Recently, in-house attorneys from various industry segments throughout Nevada met at the law offices of Holland & Hart in Las Vegas to discuss the myriad of complicated issues their industry faces today. Connie Brennan, publisher of Nevada Business Magazine served as moderator for the event.
These monthly meetings are designed to bring leaders together to discuss issues pertinent to their organizations. Following is a condensed version of the roundtable discussion.
What value is there to having in-house counsel?
Doug Brooks: I’m very biased about the value of in-house counsel, as a lot of us are. There are specialties in certain sized projects that just can’t be done with in-house resources, and that’s what the law firms are a very important partner of. My bias is toward the basic day-to-day routine work and work that is specific or special to your industry would probably be best served by in-house counsel who have the time and access to actual clients. As in-house counsel, you’re part of the business team. That’s what makes for a successful in-house law partner in my book. It’s being able to be accepted by your clients as part of the business team, participating with them and having access to them on a daily basis.
What are some of the challenges in-house counsel faces?
Ann Wilkinson: Right now, one of the biggest challenges is obviously the economy. We’re all feeling it. Our office, in particular, has seen significant cuts in the amount of money that we can spend for outside counsel. So, in addition to handling all the day-to-day issues, we also have to take on more litigation in-house and it’s increasing the significance of our role in the workplace. Unfortunately, I think people have a tendency to see that, with the economy, they think that work is slow. That may be the case in some industries, but the reality is, at least in the legal field, we see it’s actually increased significantly because it’s the type of problem now that we’re facing that requires more involvement from the government lawyer. It involves more involvement because you have a lot more problems that we’re trying to help constituents and businesses, as well as the taxpayers feel comfortable with coming to a resolution.
Stacie Michaels: I think the biggest challenge that we face in our business is the variety of issues we deal with on a day-to-day basis. At any point in the day, my phone will ring and it could be an employment question, it could be a corporate question, it could be a gaming question. You just really never know what sort of issues you’re going to have to deal with on a day-to-day basis.
Mark Dunn: We have a job that, particularly in this environment, is extremely challenging. Much the same as I’ve heard around the table, we are continually asked to do more with less. Our department size has shrunk in the last year by attrition and by other means. It’s a constant battle to try and continue to advance the company’s business interests which, in spite of the slowdown in the economy, continue on what seems to be the same pace that existed prior to a slowdown.
Rob Solomon: We are facing the same challenges that all of the other in-house counsel are facing. Doing more with less. We’ve had reductions in staff in our group and throughout our companies, actually. At the same time, the challenges include more efficient and creative utilization of our outside resources, crafting alternative fee arrangements and being more effective in our management of outside counsel.
What are some of the differences in public versus private in-house attorneys?
Jan Cohen: In-house counsel for a state agency is different than in-house counsel for a corporation. You’ve got the public interest standard that we always have to deal with. I also represent the Commissioners. I feel that part of my job is helping them to come to a legal decision so that it’s easier to defend them. That may be the biggest challenge, in that you have to balance all of these interests. There’s a balancing that has to be when you’re a public lawyer as opposed to a private attorney. Then there’s the open meeting law issue, which I don’t think a lot of people have to deal with. Every issue has to be in the open. So, all of these things are constraints to get what you want done. When I was in private practice, it was much simpler. It’s public interest versus, in my case, the Commission and regulating utilities. They have to balance the interests of the shareholders of the company and the ratepayers of Nevada. They have to be very fair and not be biased toward or against the company, but they have to look out for the ratepayers too.
Hank Stone: In terms of difficulties, as Jan [Cohen] mentioned, open meeting law is always a major issue you have to be concerned about. It’s not just how many are present, or if you have a quorum. There have been some findings against the Board of Regents on open meeting laws, back in the day. So, that’s one problem. The other problem that I think government lawyers have that private in-house lawyers don’t have is the attorney/client privilege. It’s very, very limited in our case compared to what it would be in a corporate setting. I’ve been General Counsel of a publicly traded company and the difference is pretty stark. Given public records laws, et cetera, there is very limited privilege. That, and budget. We took the biggest hit statewide, percentage-wise of any of the state agencies. Everybody is either mandatory or voluntarily on furloughs. Workload gets affected by that.
What are the benefits to working as in-house attorneys?
Cohen: It’s a lifestyle decision for me. In private practice you bill hours, that’s the name of the game. A lot of people talk about public interest, but you really can feel as if you’re doing the right thing if you work for some public agencies. It has nothing to do with money because, I don’t make much money, comparatively. It’s more a matter of, I’m happy with what I’m doing and I like the people I work with. I think that is very important. A lot of women end up in public practice, probably because of a children issue, a travel issue, because of the time commitment. I happen to be one of those. I didn’t want the total time commitment of 24 hours a day, seven days a week having to work.
Wilkinson: I’ve had the chance to work private, public and in-house. For me personally, the law firm setting, which was more litigation-oriented at the time, at least in the firm I was in, I didn’t find it personally satisfying. It was, let’s take this problem, get it solved, go away and move on. For me, it was more that I want to be a part of a team, to work more on a big picture and work together to get something solved, as opposed to constantly being adverse. It’s more about finding a place in that world for me that I can bring everybody together, sit down and try to get to the same end result, even though we have competing interests. So, for me, it wasn’t necessarily the lifestyle change. I’m still 24/7 and I’m a government lawyer. For me, it’s the personal drive of trying to be involved in seeing things move forward from a project perspective.
Cohen: I agree with her on that.
Brooks: It’s interesting to talk with the people who came from law firms, both big and medium, inside and outside Nevada. They’re surprised at the pace and volume of the work. I don’t think they thought this was a retirement job, but they though the pace would be different than what they experienced in their law firms. At the same time, I think we allow attorneys a lot more flexibility in terms of times and family circumstances. The company is sensitive to those types of needs, my impression is much more so than law firms are. The biggest thing I learned was how surprised the law firm people were at the amount of work and the pace of work in-house.
Solomon: I graduated from law school and joined as a new lawyer in what was then a large law firm in Cleveland. My life was being managed by my colleagues when I started and by strangers when I came out here. Most importantly, when I started with the firm, there was a high emphasis placed upon the non-billable time that was spent getting to know your client. With the pressure of the budget, the ability to mentor and the need to extract every last penny of profit out of our lawyers and the demand that clients be billed at par and collected became, for me, an unwieldy pressure. The pressure of the billable hour is what moved me from private practice to in-house practice. I’m glad I organized my life the way I did, but I’m glad I am where I am now. I have tremendous empathy [for outside counsel]. When I have the difficult conversations about bills and fees, I’m uncomfortable. It’s a necessity, but I’m absolutely understanding of the pressures and stresses my colleague sitting across the table is bearing.
Wilkinson: Having been fortunate enough to work both in a big firm environment, for government and for in-house counsel for two very large corporations, I’m appreciative of those prior experiences, partly when it comes to managing outside counsel contracts. Also because I think it helped instill in me a work ethic that is not the atypical, stereotype of a government worker. We don’t shut down at five o’clock. I feel like, because of the variety of experience that I’ve been able to have professionally, it’s made me a better lawyer and more of an in-house counsel/government-type role. Better rounded, maybe.
Cohen: In government, you get such an opportunity to experience different areas of law. You get the opportunity to do so many things when you’re working for the government; there are different kinds of law being practiced. It’s not as easy as it appears, but it’s challenging and it’s more fun. When I was in private practice, I wasn’t a partner yet, but you did what the partner told you. Now it’s more like you get to maybe choose your own path a little bit more. As a partner, I’m sure you have the choices, but you ended up in a certain area of the law. I was getting pigeonholed in litigation. I can still do litigation, but I’d much rather fix it. I’d much rather prevent it than fight about it.
Do you often deal with outside counsel?
Cohen: If we had lots and lots of matters, we would probably hire an outside counsel in D.C., because they’re right there. I’d have to fly in. Usually we try to pick and choose, if the case is big enough to warrant the involvement. We had firms in the past that we’ve had good experiences with and so we would probably use those firms. In Nevada, we’d probably never use outside counsel. We wouldn’t need to. We’ve got seven lawyers.
Dunn: We’re a little bit different from an operational perspective. I’ve been with the company seven years. I can count on two hands the number of times I’ve used outside counsel for an operational matter. It’s a rare day that we go outside. The exceptions would be for certain gaming licensing issues, then, we’ll go outside. For certain zoning issues, we’ll go outside. For awhile, my foray into international included some development work we were doing. In those cases, obviously, we’ll go to outside counsel. But, the outside counsel is located where it is, whether Singapore, Czechoslovakia or Spain, for example. There are others in our in-house group who occasionally use outside counsel here locally. Again, most of those matters are for regulatory and local real estate issues where you’re looking for somebody to appear in front of one of the local boards or agencies or commissions.
Solomon: Our use is dictated by a level of expertise that we might need that we don’t have in-house, given how small we are. Or, if there’s an excessive quantity of work that must be done within a very short period, we might turn to the outside.
