In-House Counsel

Speaking Up As In-House Counsel

More often than not, in-house counsel are also seen as business advisors and counselors -- asked to leverage our innate analytical skills to help the company navigate reputational risk among other risks.

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giving prelaw student advice advisor adviser counselThere’s no question that as in-house lawyers, we are expected to use our voice and share our opinion when it comes to the topic of legal risk. Our role in this very narrow lane is clear — what are the legal consequences of doing X over Y or some variation of that. Depending upon your organization, and its leaders, this can be your only role (although I personally see it as more of an outside counsel’s role).

However, more often than not, in-house counsel are also seen as business advisors and counselors — asked to leverage our innate analytical skills to help the company navigate reputational risk among other risks, along with legal risk, while trying to achieve business objectives. To me, this is the inherent value of having in-house counsel, who intimately know and can take into consideration the core values, culture, historical journey, and goals of the company.

But as our world is becoming more complex and more controversies arise and the “right” approach is more “gray” and nuanced, how do in-house counsel ensure their advice is what’s right for the company? How do we, as human beings, set aside our own personal beliefs and convictions (without compromising our own values) as we advise our clients on what is best for them. And presuming we are able to, how do we use our voice and speak up as in-house counsel? While I don’t have clear answers, here are a few things I think about.

Know The Ask

One of the first things I want to know when “legal” is invited to a meeting is why. What is the problem we are trying to solve and what’s the specific ask. It’s critical to answer the question pending, to the best of your ability. For those “stay in your lane” stakeholders, this may be all that they want, but even for those stakeholders who see your role as more comprehensive, they will want the specific ask answered first. Knowing the ask, while very basic, can ensure that you are not going to pontificate on something that wasn’t asked of you (which can undercut your credibility and effectiveness) and can ensure that when you do choose to use your voice and share an opinion, it will be seen as intentional.

Check Your Bias And Benchmark

If you are asked to exercise your judgment or share an opinion that is beyond simply the legal risk — to the extent the topic is something you are personally passionate about, check your bias before sharing your opinion. We, as lawyers, have an obligation to act in the best interest of our client, even if we might personally make a different choice. As we give advice, it is important that we are aware of our own biases and do what we can to focus on our company’s core values, culture, and goals, when we help our companies make decisions. If you have experience as outside counsel, you probably have already learned this skill. It’s certainly where I learned it.

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And this may be counterintuitive, but for matters that are particularly controversial, I try to seek out neutral sources and get a sense for arguments for both “sides.” This is how we ensure that our advice is balanced and that our opinions are “tested.” For more, check out the book “Think Again” by Adam Grant. I also benchmark to the extent I can on what other companies are doing, especially if they are our similar industry and size. To punctuate this point, diversity of thought is paramount here.

Bifurcate Your Opinion

This may not work for everyone, but when I share my opinion, I like to bifurcate it. I’ll share the purely legal risk first, but I’ll also share the practical implications and considerations, and I’ll end with my recommendation and why. If the issue is particularly controversial, I also like to include in my discussion how decisions might land with various constituencies. I see my role as helping the company get it right, and less about advocating for a particular position. If I have contributed to the decision by ensuring a robust discussion, then I’ve done my job, even if my recommendation is not taken.

To Thine Own Self Be True

I may get a lot of push back on this one, but if an organization I worked for truly didn’t align with my core values, I would need to evaluate whether I’m in the right place. For example, diversity and inclusion is important to me. It’s one thing to work for a company that might be agnostic — for example, a startup that doesn’t have resources to commit to D&I or perhaps a company like Coinbase or Basecamp which have had policies in the past about no political or societal discussions at work. But I don’t think I could work for an organization like Hobby Lobby, where there can be no alignment because, on a few things, we fundamentally disagree.

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Outside of work, I am careful to make clear when I’m sharing my personal opinion and include the usual disclaimers that I do not represent my employer when I’m sharing that personal opinion. But I am also careful about where, when, and how I speak up — out of consideration for how it could be imputed to who I work for.

Meyling Mey Ly OrtizMeyling “Mey” Ly Ortiz is in-house at Toyota Motor North America. Her passions include mentoring, championing belonging, and a personal blog: TheMeybe.com. At home, you can find her doing her best to be a “fun” mom to a toddler and preschooler and chasing her best self on her Peloton. You can follow her on LinkedIn (https://www.linkedin.com/in/meybe/). And you knew this was coming: her opinions are hers alone.

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