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“Better connecting Corporate America to the judicial system: The role of the bar association”

Inside Counsel By Kevin M. Long

At our core, all lawyers are connected by one thing. We take the same oath. Though the oaths vary a bit from state to state, some of the key phrases in most include the following:

  • I will support the Constitution of the United States ...
  • I will maintain the respect due to courts of justice and judicial officers
  • I will not counsel or maintain any suit or proceeding which shall appear to me to be unjust, nor any defense except such as I believe to be honestly debatable under the law of the land
  • I will never reject, from any consideration personal to myself, the cause of the defenseless or oppressed, or delay any cause for lucre or malice
  • I will in all other respects conduct myself personally and professionally in conformity with the high standards of conduct imposed upon members of the bar as conditions for the privilege to practice law in this state

At our law school graduation or bar admission ceremony, we participated with a group of diverse people connected by common goals: obtaining a law degree and being admitted to practice law. That admission came with an obligation, the oath we all took.

Some of our law school colleagues knew exactly where they were going. They were laser-focused on achieving the goals they set out to achieve when they started law school. However, most of us came to our place in the profession through a combination of ambition, hard work, unforeseen opportunities (and sometimes obstacles), a desire to meet our more important family obligations and some level of fortuity. That led some to the bench, many to public service, into private law firms of all sizes, into prosecuting careers and public defender roles, and, to those who are the target of this publication, to in-house roles within corporate America. Indeed, the courthouse lawyers (those who go to work every day in courtrooms, such as prosecutors, public defenders, corporation counsel, commissioners and the judiciary) and the corporate lawyers rarely overlap.

In reality, litigators are more likely to be confronted by the precepts underlying our oath than transactional lawyers. The litigator focus is on the courtroom and the judiciary, including trial and appellate courts, the very guardians of the oath. Too often litigators are not as cognizant as they should be to corporate governance and the performance of their clients. Corporate transactional lawyers, on the other hand, are laser-focused on those issues, but sometimes oblivious to the judiciary. Somewhere along the way, lawyers involved in government service and those serving corporate America inevitably lose their connectedness.

It is easy (and almost expected) for in-house counsel to drift apart from the judicial systems in which they began their practice. It is rare for an in-house lawyer to manage a docket that is exclusively in one state's courts. Moreover, in-house counsel naturally become more focused on the performance of their company and how to avoid litigation. However, I submit we would be a stronger, fairer and more efficient profession if the bar took greater steps to connect in-house counsel with government lawyers.

When appearing at hearings at courts of general jurisdiction with corporate clients, they and I are often impressed by the tremendous variety of issues a single judge must handle. When you sit through a divorce finalization, a drunk driving sentencing and a criminal plea hearing before your civil matter is called, you learn a lot about the perspective of the decision maker on your case. One of the clearest lessons is that large businesses, while not disliked overtly, are among the least sympathetic non-criminal parties a judge will see in a typical day.

The unfortunate reality is that the judiciary has very little communication with Corporate America and inside counsel. Thus, they have limited understanding of the impact that rulings (particularly discovery rulings) can have on the operations of companies. Judges rarely come to the bench with any experience working as inside counsel. Too often, inside counsel and the companies are equally ignorant with respect to challenges faced by the court system. The court system has limited resources. Almost every other constituent that comes before the court system has limited to no resources. It is possible for some public sector lawyers and officials to view corporate America and its lawyers as the only parties with resources in the system, and as parties who are unsympathetic to the court system’s challenge.

So how do we improve communication between the business community and the judiciary? One way is through more active participation in bar associations.

Bar associations can and should play a meaningful role in helping these two important parts of the legal system understand each other’s challenges. Bar associations are seen by judges and law firm practitioners as opportunities to network and learn from each other. However, in most community-based bar associations, in -house counsel are rarely involved. In-house lawyers tend conversely to be attracted to conferences dealing with their particular specialty area or industry.

Private law firm lawyers try to spend their non-billable time in places where prospective clients will be. Because in-house counsel from Corporate America is rarely involved in community-based bar association events, some firm lawyers are less inclined to participate in them. Rather, they follow the clients to the trade organizations and meetings.

If there were more involvement by inside counsel from Corporate America in community-based associations, state bars and the ABA, they would have the opportunity to talk directly with courts about ways to streamline dispute resolution, control discovery costs and prevent parties from gaming the system. At the same time, they could learn more about the challenges facing the judiciary. I have no doubt that the relationship between the judiciary and corporate America would improve, and the result would be a judicial system that better serves all of its constituents.

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