Biglaw, Boutique Law Firms, In-House Counsel, Intellectual Property, Patents, Small Law Firms

Beyond Biglaw: In-House Talent -- Access Denied?

Why are in-house lawyers limited to working only for their particular employer?

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A time-sensitive matter comes in. An experienced hand is needed to help. Where to look for that help? In Biglaw, the answer is usually an easy one: call up Partner No. 37 in distinguished branch office No. 6, and keep the billable hours rolling — with a happy nod towards a successful “cross-sell,” and instant validation of the underlying “size is good” concept behind so many of today’s firms. But is Partner No. 37 really the best lawyer to help out? Hard to believe that the answer is “yes” more often than not. Because Biglaw firms are constructed the way they are, however, there is a premium on making sure that existing firm resources are utilized as much as possible.

At the same time, we know the legal industry is struggling to cope with demand fluctuations, or all too often a lack of demand for expensive legal services. In the current environment, it is not a surprise to see Biglaw firms contorting themselves to reach optimal size, whether through mergers, layoffs, or lateral growth. Despite their efforts, there are very few firms that are optimally size-calibrated in relation to the demand for their services. For those firms fortunate enough to experience the occasional demand spike, retaining the ability to be nimble on staffing can mean the difference between a satisfied client or one who looks elsewhere “next time there is a big need.” Firms want repeat business, and being able to incorporate experienced additional lawyers — within the budget for a particular matter — onto the legal team can make a real difference in whether or not that repeat business happens.

But where else can firms (of all sizes) go for experienced help on short notice?

Many times lawyers are reluctant to introduce another firm to one of “their” clients, making firms partnering with each other a less likely occurrence than perhaps clients would like. In fact, it is more likely that a firm will just ask a more junior person to jump in than it would be for a firm to farm out even a portion of the work to a lawyer at another firm. Of course, sometimes clients “suggest” bringing in some outside help, but that usually depends on whether the client is made aware of the staffing “issue” in the first place.

If time allows, a firm might try and locate a contract attorney to fill the gap, but sometimes the time crunch, or lack of availability of qualified candidates, makes the contract attorney route unworkable. There is another reason why working with contract attorneys can be impractical. Lawyers are by nature cynical and prefer working with known quantities, particularly on matters of importance. The general unwillingness to work with unproven, even if properly pedigreed, contract attorneys means that lawyers will look for help from lawyers they know. Meaning lawyers in their firm or former colleagues at other firms.

There is a third source of potential experienced talent, however: in-house talent. Trusted former colleagues, often forged by the same crucible of experience, with the added benefit of a “corporate perspective” that can be most useful for outside counsel to appreciate. But these talented lawyers are by and large off-limits, unless they are on the legal team for a particular matter being handled by your firm. I know that an in-house counsel’s primary responsibility is and should be to the matters affecting their particular employer. At the same time, it seems like there is a lot of underutilized talent sitting on the proverbial sidelines. And just as it irks me when I see talented lawyers at firms idled for lack of billable work, it seems to me that there should be a better way for firms and in-house counsel to cooperate on select matters.

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Here’s an example, germane to patent practice. Thankfully, my partners and I have varied technical backgrounds, coupled with a collective history of litigating patent cases that implicate different technological areas, from pharmaceuticals to hard-core electrical components. Despite that breadth of experience, there have already been times in our firm’s young history where I thought that it would be great to consult with a former colleague who had specific experience with a particular technology. And who knew their way around knotty patent issues much better than any junior associate could ever hope to. When it comes to patents, sometimes in-house counsel have more specific experience with particular technical or legal issues than outside firms. But the colleague I had in mind was working in-house, and thus off-limits — even though they would personally want to (and have the time) to help on the particular project, and would gain some valuable experience that would accrue to their company’s benefit through that work.

As a partner in a boutique firm, I am comfortable employing creative staffing solutions when they are called for. I definitely appreciate the value of tapping into experienced help when necessary, and quite frankly have no problem working with former colleagues who are still in Biglaw or who may have left for smaller practices themselves. In fact, clients are more open to unorthodox staffing arrangements when they are working with a boutique in lieu of a Biglaw firm. As our practice continues to get busier, our need to tap into our networks of fellow “outside counsel” will only grow. What I personally have not figured out yet, however, is if it is even possible, with a willing (1) outside firm like mine, (2) in-house counsel and their company, and (3) client of our firm, to structure an arrangement where we can work together on a matter with support from someone currently in-house. Maybe my experience is too limited, having spent my entire career in Biglaw, where the lines between in-house counsel and outside counsel were clearly drawn. It does seem, however, that something that is in the interest of all parties should be utilized more often. And that restricting in-house counsel to only working for their companies means not maximizing a lot of talent. To me, this seems like an issue worthy of more attention, especially as in-house legal teams grow ever larger, while demand for outside legal help gets more sporadic.

Please feel free to send comments or questions to me at gkroub@kskiplaw.com or via Twitter: @gkroub. Any topic suggestions or thoughts are most welcome.

Gaston Kroub lives in Brooklyn and is a founding partner of Kroub, Silbersher & Kolmykov PLLC, an intellectual property litigation boutique. The firm’s practice focuses on intellectual property litigation and related counseling, with a strong focus on patent matters. You can reach him at gkroub@kskiplaw.com or follow him on Twitter: @gkroub.

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