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By Joe Calve, Metropolitan Corporate Counsel

Altman Weil, a management consultancy dedicated exclusively to the legal industry, kicked off its “Law Firms in Transition” survey on the heels of the Great Recession. Now in its eighth edition, the survey, released earlier this month, reveals a frightening gap between lawyers and clients.

The gap is so wide that it seems to be spurring corporate law departments to throw up their hands in a manner reminiscent of the famously obnoxious 1960s TV commercial for Anacin pain reliever. A hovering mother tries to help her harried grown daughter with her household chores. Pushed to the edge, the daughter finally erupts:

“Mother, please, I’d rather do it myself!”    
Continue Reading Backstory: GCs Take Matters Into Their Own Hands – Literally

By Michael Stevens, AccessData
Keeping internal tech teams up to date on legal and compliance trends is a never-ending task for many corporate legal departments. But it remains an important one, as CIOs and CISOs developing technology plans for a company need to account for these requirements and more. Security threats, mobile employees and a changing regulatory climate can keep good general counsels awake at night. Along with their CIOs, GCs must look to update their technology and processes to steer the ship through these challenges in a rapidly changing information age environment.

How Secure Is Your Data?
There are many great lists that you would like to see your corporation listed on, but I will bet this isn’t one of them: Krebs on Security. How you interact with your CISO or CIO to manage your company’s security risks is crucial in keeping you off this dreaded list. You may think that you have everything locked down, but you are facing an indomitable foe every day – clever cybercriminals. Who is going to be responsible for handling the legal consequences in the aftermath of an incident? Just look in the mirror.

It is a heavy responsibility to keep customer, financial, intellectual property, personally identifiable and legal information safe from breach. Cisco’s Annual Security Report in 2016 said that 65 percent of organizations feel that they face a significant level of security risk. Additionally, Bomgar’s Vendor Vulnerability Report stated that 55 percent fear a breach resulting from vendor access will occur over the next year, while 20 percent believe the same will happen at any time after one year. A practical reminder – be sure your technical teams are requiring all vendors to adhere to the highest security standards and have a protocol to immediately inform you of any breach.

Creating a detailed map of all of the organization’s data repositories is critical. Unless the organization knows what it has, where it resides within the organization and who is responsible for the data, it cannot respond quickly or effectively to data loss. By creating a detailed data plan with your CIO, CISO and internal stakeholders, you can determine what types of information you have, where it lives and who has access to it inside and outside of your organization. If your organization doesn’t yet have an incident response (IR) plan, insist on it before you experience a cyber or other security breach. Part of that IR plan will outline what steps must be taken to rapidly investigate where and how the breach occurred; what data, if any, was compromised; if the breach is ongoing; and how to remediate it. This is where having a data map, including the locations of sensitive legal and matter, becomes critical.

BYOD: Your Recurring Nightmare
Continue Reading Are You and Your CIO in Sync?: Alignment on relevant industry trends significantly impacts IT’s capacity to satisfy a legal department’s needs

By: Rees Morrison

This article introduces a type of graph that shows multiple metrics of law departments on the same scale – probably a new graph for most readers – a parallel coordinate plot (PCP). We will explain the PCP1 using data from the General Counsel Metrics LLC benchmarking survey sponsored by Major, Lindsey & Africa.

To create the PCP for this article, we extracted data of law departments that participated one or more years over the past six years of the benchmark survey.  More specifically, the subset consists of U.S.-based companies in technology or telecommunications.  We then narrowed the group to companies that reported fiscal year revenue between $500 million and $5 billion.  The resulting 62 companies formed this article’s “tech” industry.

Establishing the tech law department data set is one step, but analyzing and presenting conclusions about its metrics is another.  One of the challenges of displaying benchmark data in graphs is organizing, on one chart, multiple metrics for each law department.  Making the challenge even harder is when the data comes in different scales such as single or double digits for head-count metrics, hundreds or thousands for patent records, millions for spend data, and billions…
Continue Reading Tech and Telecomm Benchmarks with a PCP

By Laura Kibbe and Shelley Brown, Esq., RVM Enterprises, Inc.

One of the greatest challenges facing in-house counsel today is the soaring cost of litigation. One of the primary contributors to those extraordinary costs is the ever-growing creation of data and data sources, resulting in the unpredictability of e-discovery. For years the e-discovery industry has been exploring alternative fee arrangements (AFAs). The AFA methodology was created to increase predictability in litigation-related spend. The foundation is simple: Provide cost predictability and the ability to create future budgets based on historical spend. While AFAs have certainly met their cost predictability goals, in an age of complex electronic discovery, it raises a question as to whether or not the model has sacrificed expertise and strategies that provide valuable, high-quality solutions for an overall lower cost. We think so.

Rather than relying upon AFAs alone as a solution to the budget problem, perhaps we should look toward the use of more strategic methodologies to better control costs. Strategic alternative fee arrangements (SAFAs) could be the answer. In the e-discovery world, AFAs often take the form of per document charges, an all-in processing flat fee or some combination thereof. But those AFAs do not incentivize the service provider to reduce volume (and therefore cost). Instead, we should look to implementing early case assessment and litigation readiness strategies to help mitigate e-discovery costs. At first blush, the higher initial spend in per hour analytics or consulting may seem counterintuitive to cost savings, but if the exercise results in a reduction of the reviewable universe by 40 to 50 percent, total case cost goes down. The perfect SAFA model would combine the cost-predictability goals of the AFA while encouraging new strategic approaches to traditional tasks, resulting not only in a lower total case cost but also in giving the case team a strategic advantage over their adversary. Knowing their case early on can direct case strategy.

Utopia or Reality: A New Approach

The traditional electronic discovery budget looks like a laundry list of unit prices and assumes, for the most part, that a linear process will be followed: collection, processing, search terms, maybe analytics and a review of the resulting data. In this model, ensuring that each unit price is as low as it can be will lower costs and create predictability, but at what effect on total case cost? What if the collected data contained information that was particularly harmful to your client’s theory of the case? What if the collected data does not include a key custodian? What if the collection was generally overbroad due to similarly overbroad corporate data retention policies or nonexistent litigation readiness plans? In failing to take a strategic look at what the case team hopes to accomplish in discovery, those unit prices often result in spend which could have been avoided altogether. In addition, that traditional model does not necessarily identify the key documents early enough in the case to assist the client in reevaluating its strategy.

The analytics tools that are available today make it possible to spend time and resources on a true early case assessment that can result in an overall lower total case cost. Ultimately even greater savings and efficiencies could be achieved. As with law firms, engaging an experienced partner early on to help formulate strategy is important. Delegating the execution of that strategy to more cost-effective resources and engaging a consultant with specific e-discovery subject-matter expertise (and likely a higher billable rate) broad enough to span information governance, litigation readiness and e-discovery can reduce downstream discovery spend.
Continue Reading Alternative Fee Arrangements: Panacea or Problem: Delegate strategically to reduce downstream litigation costs

Interview with Brian Campbell, ACC New York City Chapter
The Association of Corporate Counsel (ACC) is a global bar association, promoting the professional interests of in-house counsel through education and advocacy. Via local chapters, the ACC offers its members resources for continuing legal education (CLE) credits and networking. The New York City chapter (previously called Greater New York) is led by DHI Group General Counsel Brian Campbell, who shares highlights from a recent event here, along with the benefits he has enjoyed through his participation in the chapter. His remarks have been edited for length and style.

MCC: This is your fourth year as a board member of the New York City chapter of the ACC, and your first as president. Tell our readers about the chapter. What are you hoping to deliver to your members?

Campbell: Our New York City chapter is one of the ACC’s largest at nearly 1,800 members. We serve the five boroughs of New York City, as well as Long Island. The board is made up of in-house lawyers, who are all engaged in and dedicated to fulfilling our chapter’s mission. Our programs and events are geared toward in-house counsel, and although law firms and service providers sponsor us, our goal is to provide members with opportunities to learn about what’s going on in the industry and to educate themselves on issues that come up in their day-to-day practice or in their own career growth and development, all in an environment in which they’re not subjected to a sales pitch. We also encourage engagement among members and want to bring them together to help one another advance their careers.

We regularly poll our membership via surveys and informal conversation to see what is piquing their interest, and through that we’ve enhanced our program offerings. We’re always coming up with new and creative initiatives to get our members what they need. We emphasize over and over that for less than $400 a year for an individual membership, in-house counsel can get all of their required CLE credits, without being charged any additional fees. They can also take advantage of social and networking opportunities with other in-house counsel.

And of course, there’s the ACC annual meeting, where for an additional fee in-house counsel can obtain all of their CLE credits in only a few days. On top of that, they can meet members from other chapters around the world and interact with their peers as well as top-level practitioners. For example, at the 2015 annual meeting in Boston, Ben Heineman, the former general counsel at General Electric, addressed other chief legal officers (CLOs). There were around a hundred CLOs in the room. Ben spoke to us and then stayed around to answer questions, and it was really a fantastic event – one of the highlights of my years practicing in-house. That’s something you don’t otherwise see outside of ACC, someone of the caliber of Ben Heineman connecting with in-house counsel on a personal level.

Also, ACC as a global organization has continued to expand and grow worldwide, with new chapters as far afield as Australia. ACC global also hosts conference calls and webinars and distributes literature and other resources.

MCC: What are some of the benefits of taking on a leadership role?  
Continue Reading ACC-NYC Offers Outreach and Opportunity: The regional chapter of a national organization can offer uniquely local networking and educational events

By: Lloyd M. Johnson Jr.

Recently, I was speaking with an executive recruiter about what it takes to be a successful GC in this era of the activist investor (see my column in the April issue of MCC). “If you don’t have managerial courage, you’re probably not going to be an effective general counsel – or even get the job in the first place,” she told me, drawing on years of experience placing GCs in major companies. And she’s not alone in believing that. Increasingly, executive recruiters are telling me that managerial courage is part of the GC’s job description. And that means the wise general counsel will include it in his or her leadership toolkit.

More Than Just Courage

At its heart, managerial courage is the willingness to raise difficult issues openly and honestly. It means putting the need to do the right thing ahead of personal concerns about career and advancement – saying what people should hear rather than what they want to hear. For the general counsel, it can also mean asking the tough questions of an especially tough audience. “When you’re talking about having that conversation with your CEO or board, and the…
Continue Reading Creating Transformation Through Managerial Courage: For a general counsel, demonstrating managerial courage can transform the entire organization.

By Joe Calve

In his nearly 20 years as the top legal executive at General Electric, Heineman redefined the role of the GC in the modern corporation. The key to a GC’s success, he says in his indispensable new book, “The Inside Counsel Revolution,” turns on her ability to resolve the tension inherent in the dual roles of partner to business leaders in the drive to achieve performance goals and guardian of the corporation’s integrity.

That’s no easy trick given the “Herculean” task the typical GC faces. Indeed, as Heineman marches readers through a parade of corporate horrors – Enron, WorldCom, HP, Siemens, Wal-Mart, GM – he’s compelled to conclude that inside counsel, too eager to please their business partners, have “failed miserably as guardians.” He does not, however, abandon hope, citing “the many voices maintaining that a strong guardian role for the General Counsel is both desirable and feasible.”

There is no shortage of doubters. They survey the wreckage littering the corporate landscape and conclude that reconciling the partner-guardian roles can’t be done. Securities law maven John C. Coffee, Jr., a professor at Columbia Law School, is a prominent example. Coffee believes inside lawyers are fatally compromised by the very nature of their roles. In his book, “Gatekeepers: The Role of the Professions,”
he poses the obvious question: Why do so many corporate gatekeepers, including inside counsel, fail?
He answers his question with a question.
Continue Reading Backstory: Rebel with a Cause: A talk with Ben W. Heineman, Jr.

By: Lloyd M. Johnson Jr.

General counsel have been called many things, but visionary has rarely been one of them. Though most GCs have, over the past 40 years, made the journey from administrator to counselor to gatekeeper to strategic advisor, that’s generally as far as they’ve gone. The highway that most general counsel – and their legal departments – still travel remains pitched toward the same horizon it’s been pitched toward for decades. The scenery along the road has changed little. And it’s possible that the horizon line itself is nothing but a cliff.

What’s become increasingly evident is the need for off-ramps from that highway and, in fact, a brand new destination: a legal department headed by a general counsel who, by dint of truly transformative change, has established herself or himself as not just the traveler but the mapmaker, the one establishing the directions in which the company will move and adapting the map as the company encounters roadblocks, detours and changes in terrain.

This column is the first in a series that will explore that evolution, digging deep into what general counsel need to understand – and master – to become mapmakers, exploring the factors…
Continue Reading Expanding the Known Universe: GCs who take on a visionary role become the mapmakers charting their company’s course

MCC Interview with Megan Belcher, ConAgra Foods

Successful, powerful, dynamic leaders do not mysteriously appear in the C-suite fully formed as perfect leaders. Megan Belcher of ConAgra Foods encourages women lawyers to seek out the stories about the paths to leadership from those leaders – the struggles, risks, and triumphs – and use them as levers to transform their own development. Her remarks have been edited for length and style.

MCC: What is the current state of affairs for women and their path to leadership in the practice of law?

Belcher: I think it’s been challenging for many decades, and it remains challenging. Agnostic of practice venue, women still have not come close to reaching leadership roles in parity with men, despite entering law school in almost equal numbers. Whether it be at the equity partner level, or at the Fortune 500 general counsel level, women aren’t even cracking the 30 percent mark in representation. The pay gap similarly remains, with women making about 80 percent of what men in either firms or in-house venues make. Women are also leaving the practice of law in greater numbers, which is probably the most troubling trend, in my opinion.

All that being said, there’s never been a time in the practice of law when there has been more momentum behind supporting women in their practices, in their path to leadership and in building a community to empower one another. There are a tremendous number of leadership and development opportunities about which women in law can be excited.

MCC: What are the key barriers and derailers for women, not just in seeking leadership positions, but also in staying in the practice of law?

Belcher: From an infrastructure perspective, I believe the biggest barrier is the continued broad use of a “one shoe fits all” model of leadership in the practice of law. There has long been an iron-clad concept about the model for a successful lawyer, what a successful path to leadership looks like, and what the core competencies of that path to leadership are. It’s fairly inflexible and it’s outdated. Part of what’s going on now in the practice of law, and particularly in the focus on women’s development and leadership, is rejecting this “one shoe” model of leadership and evolving into a new, more inclusive model of leadership.
Continue Reading The Power of Authentic Storytelling: The path to leadership for women in law is bumpy – better get going

By: Rees Morrison, Altman Weil Inc.

General counsel want to know about the legal department’s productivity, value and client engagement. Even better, they welcome ideas regarding how to improve those important attributes. The good news is that insightful clues to each of them are as close as the email inbox! General counsel who understand and interpret data about the email traffic sent by their lawyers to internal business clients and received by their lawyers from clients have tapped into a trove for analysis. This column sketches how to collect that email traffic and ways to analyze it.

Is It Legal?

As readers might be concerned about invasion of privacy, my assumption is that all email handled on a corporate server is owned by the corporation and can be studied by the corporation. Hence, there should be no expectation of privacy regarding the emails of lawyers or clients. Point two is that the email traffic to be examined would be stripped of any content other than names of lawyers and clients and dates. Point three is that the data source will only be messages between corporate clients and their in-house counsel. (Whether attorney-client privilege would be threatened is beyond…
Continue Reading Email by the Numbers: Graphing a department’s email activity can yield crucial information on productivity and value