Legal news and trends for Canadian in-house counsel and c-suite executives
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Inside job Bombardier Inc., for appropriate terms to be reached, a client must be direct in com- municating what he or she needs from a firm and interview several potential sec- ondees. "You're in effect hiring that per- son for a few months," he says. If one firm isn't willing to provide several lawyers to interview, he advises going elsewhere to build a relationship with another firm. A secondment can provide an on- the-ground education in a client's rules, processes, and management style. The seconded lawyer comes to see matters from the client's perspective. Indeed, adds Johnson, a secondment can put a lawyer in a position where they replace the sole in-house counsel for a period. "You are stepping in flying solo working with the senior executives," he says. Johnson says his secondments gave him a deeper understanding of the indi- vidual clients' needs, and made him better able to respond to clients' needs once he returned to the firm. "It's working with the engineers and the accountants. The intent is to build strong bonds between the firm and the client," he says. "It gives the client another point of contact with the firm. It's someone else in the firm the client trusts. It makes it easier to pick up the phone and have a quick conversation about where things stand." Johnson adds seconded lawyers find out what irks clients about external coun- sel. And because in-house counsel are in highly demanding roles, they need external counsel to respond efficiently to their needs. "It's useful information to have when you come back to the firm. It can't help but improve the relationship," he says. And it helped him develop a skill set he can apply with other clients. For Auger, an enhanced skill set gained through a secondment can only strength- en a young lawyer's knowledge of exactly what a client needs. And that, he says, "can grow the relationship or build a relation- ship that was not there before. The young lawyer will have a taste of what it would be like on the other side, what it will be like to be inside the corporation." Jaar agrees a successful secondment 40 • AUGUST 2010 can create personal links and a durable relationship between the seconded lawyer and an in-house legal department. "The real benefit for an outside law firm is to have an insider who is going to know what is important to the client . . . and identify needs and make a bid for future develop- ments." Those skills can be particularly impor- tant during tough economic times, but it seems the 2008 global economic shift has had minimal effect on the secondment process itself, say those interviewed for this article. "I cannot say that I've per- ceived any change," Auger says. "When we see a request for a secondment, it's usually linked to a specific reason." While Desjardins suggests firms send their best lawyers to their clients for free, Jaar disagrees. He says such an approach devalues the work of lawyers generally. "Law firms are intelligent," says Jaar. "The money they're not making on the sec- ondment, they're going to make up else- where." Jaar adds the economic downturn has seen hungry young lawyers offering their services for free to clients in return for the possibility of a job. That, he says, is a threat to the secondment business, adding that if firms won't play ball with clients, those clients will look elsewhere in order to manage their budgets. Indeed, Jaar says, he has seen companies use second- ments as ongoing strategy to fill positions instead of hiring new counsel. "Many legal departments need new staff but can't hire more staff. It's an artificial way to meet that goal." To meet that ongoing need means firms must provide that value in plac- ing the right person. Johnson explains a client's needs for a secondment vary due to circumstances. In some cases, an articling student can handle a work- load while in others, the client will need counsel at a mid-to-senior associate level. "Secondments can fill a lot of different needs for clients. In some cases, it makes sense to send an articling student. In other cases, the client may be looking [to cover] in-house counsel going on leave. In that case, the year of call of the lawyer will correlate with the need." Whatever the INHOUSE need, however, he says, "the intent is to build strong bonds between the firm and the client." Auger, though, says the first thing to be determined when the file lands on his desk is what specific tasks the seconded lawyer will be asked to do. "Is it more litigation or corporate? Is it more labour? Is it the two years of experience lawyer; is it 15 years? What are the expectations of the client? It has to be a win-win situation for all the parties involved. Sometimes we cannot say 'yes.' There is a cost involved for the firm." Those costs include having the lawyer to be seconded transfer his or her caseload to another associate. That involves a learn- ing curve and associated costs, says Auger, adding the firm must be selective in how it decides on secondments due to impacts on the firm of being without a given num- ber of lawyers at any time. "We're not in the business of secondment," Auger says. "We're not in the rent-a-lawyer business. It's a service." From the firm's perspective, there is also a question of whether the short-term financial sacrifice resulting from the sec- ondment is going to provide long-term client-firm value. Jaar says it can be the case, but only if the lawyer returning to his or her firm has the ear of the decision- makers. In some cases, he says, it's a writ- eoff used to cement a relationship while the client gets the expertise. "It's a brilliant strategy by the in-house community." Jim Reid, an adjunct professor at Osgoode Hall Law School, doesn't dis- count economic factors, but says second- ments are generally based more on need. Some firms and clients may even begin to institutionalize secondments as part of cementing the firm-client relationship. "It's relationship-driven and not economic climate-driven," says Reid. Auger says many secondments in Quebec are a result of female in-house counsel going on year-long maternity leaves. Or, says Johnson, the lawyer could be covering for an in-house counsel taking off to go on leave. In that case, he says, the choice of the seconded lawyer will have to correlate with the experience of the lawyer who is temporarily leaving. Additionally,