(Author) Intellectual Property Attorney

What would you do if your GC doesn’t think we need outside counsel support for contracts when entering a completely new industry area in which none of us are specialists and feels comfortable handling these new commercial agreements? But you don’t think the GC has the industry expertise or insight necessary and shouldn’t be so comfortable?

General Counsel Responses:

• Gently document concerns to GC via email and save to a file. Then just do your best. If issues arise, you’ll have documentation you raised the issue and were told to go forth and do. If there is a particularly large dollar value contract or one that subjects the company to higher than typical liability exposure, document the same via email to your GC. File the response. Go forth and do your best. Rinse and repeat. I know this advice will leave you in an uncomfortable place, but I think it’s the best you can do here.
• Do some research about contracting in that area to identify what considerations may come up and see if you can or cannot address them.
  Also for consideration: call in a favor from an attorney you know. Suggest something less costly than “kick it all to outside counsel”. For new contracts I’ve done a hybrid approach where we do a redline review after research (I love practical law for this), send it to outside counsel with a 1-2 hour budget to review and then schedule a 1 hour call to discuss it. Just because it’s new to you doesn’t mean you’re incompetent to do the work. Remember when you were a first year associate? You knew nothing then, Jon Snow.
• I feel the frustration! Good luck, and you’ve got this!!
• Look to the ethics code and maybe gently go over GC’s head to a CXO to express concern that there is a situation that may lead to unacceptable risk to the company.
  It depends on the people and severity of issue. Maybe you can raise the issue gently in some way. It’s a tough situation, for sure.
• Don’t go above your GC unless there’s securities fraud or something of that level going on. Unless you don’t mind getting fired or working in unpleasant conditions going forward.
• It depends on the area. If this is your first foray into ERISA, I would be really careful. I am knowledgeable enough with ERISA to handle most issues, but have seen inexperienced people get mauled by ERISA. So if it is something high risk and you are unfamiliar with the area, do what others here recommended and have the outside firm review your edits before sending to the otherside. Firms should be able to review most things relatively quickly. If the business gets upset at the delay, I have said, "Unfortunately your timeline doesn't provide enough time to perform a review of (contract / issues)."
• CYA. I’d spend time learning about the industry at a high level and what the risks are, have a meeting and send an email to highlight the risks, including that you don’t know the area.

Counsel Responses:

• Effing learn as much as you can as fast as you can.
• Lol found the big firm transfer. Welcome to in-house.
• Follow the GC home, record your thoughts on cassette tape, and hold a boombox above your head in the rain until they give in.
• You gotta chill out, man. It’s not your money. Edgar is better than westlaw for templates anyway, but if you want something off of practical law have a friend at a firm pull it for you.
• Give your advice, make sure it is well-documented so you have something to point to if anything goes sideways, and move on to the next fire drill. That’s all I would consider doing unless the bad contract terms implicate the company in something fraudulent or criminal.

Attorney and Associate Responses:

• Operations and revenue generation is what matters. Legal is a cost center, and frankly, is left out of the loop a lot intentionally. Just be comfortable that really no one cares what you say on the business side until something bad happens.
  This doesn't sound like it rises to the level of going over the GC's head. Maybe you end up with some less-than-ideal terms in your contracts, but 🤷. Just CYA in case this comes back to bite you in the future.
• Identify the risks and rough likelihood of them happening. (Small fine? Breach of agreement and destroying major supplier relationships? Massive PR disaster? Probably nothing?) Then evaluate again if you need to push on your GC further.
  Do what you can to get the GC saying no in an email. Create a special “personal” folder for stuff like this. You will use it regularly.
• It’s just peace of mind knowing you have it in your back pocket. Further peace of mind is knowing none of you are experts in that field, but you are competent attorneys, so you can’t mess it up too spectacularly.

In-house? Be a part of the conversation on Fishbowl (anonymous).