A Fish Out of Water - what to do when you don't have the expertise.

Within a week after I had passed the bar and was officially given the title of “Staff Attorney” at my employer the CEO came into my office to ask my opinion about something.  My GC was in a meeting (she was otherwise never out of the office) and he needed an answer but didn’t want to disturb the meeting. I was stunned.  I didn’t really know anything about anything at that point – or at least I didn’t think I did.  I stammered a bit and told him I’d look into it and have an answer within the hour.  Luckily for me it was a relatively easy question and I actually did know the answer but wasn’t confident in it.

Since that day I’ve learned that an in house attorney is often faced with answering question we aren’t fully trained on.  There are two schools of thoughts on this – some prefer to engage the experts and hire outside counsel to address every distinct area of law other than what you’ve developed a high level of competency in.  The other thought process is to learn as much as you can and engage the experts only where the risk warrants the added expense.  For those of us in leaner startups, we often take the second approach – both out of general philosophy and financial need.  I don’t have the budget to engage outside counsel every time a general IP or employment law question comes up – so I’ve learned to become a generalist. 

The trick with this second approach is knowing when the risk is high enough that outside counsel should be brought in (which requires you admitting to yourself that although you’re a good generalist, you don’t know everything).  Additionally, you have to make sure that your client understands where you’re level of expertise actually lies.  Over the years I’ve gained more experience in certain areas than in others and feel like I’ve got a good level of expertise in my core areas.  But I wouldn’t attempt to draft a patent or a motion.  I might be great negotiating at the business table, but if rules of evidence are a primary concern in the conversation you want someone who does that stuff daily.  I can keep the minutes of our board meetings and make sure that the resolutions passed are properly documented – but you want a specialist working on your IPO. 

In order for my approach to be successful, I need to have confidence in both what I know and what I don’t, and I have to communicate that well to my client.  They need to have confidence I know what I’m talking about when I tell them they need to make that requested accommodation for the employee and that we don’t need outside counsel to file that trademark, my paralegal can do that just fine for 1/10^th of the cost.  I also need them to not freak out when I tell them that we’ll need to add $10k to the cost of the deal because I’m going to need outside counsel to help make sure that the agreement is tight and in line with the tax objectives we have for the transaction.  The client needs to know I can't give them tax advice or file that patent lawsuit in the EDTX.

  

Occasionally, I still need time to research answers for my CEO.  But now, I’m confident that I’ll find the answer within the timeline and that I know when to pick up the phone to my specialist.  So what's your approach?