Attorney at Law Salt Lake City Publisher John Marciano sat down with Robert W. Payne to discuss his transition into corporate counsel.
AALM: How did you make your transition to corporate counsel?
Payne: After cutting my teeth as a commercial litigator for 13 years, first with Van Cott, Bagley, Cornwall & McCarthy, and then with Snell & Wilmer, I had the great fortune of being invited to join the university’s Office of General Counsel. It took several years to stop thinking of my day in six-minute increments, panicking at the occasional lulls in workload, and experiencing some guilt if I left the office before 6 p.m. But the tradeoffs to my 60 percent cut in pay were immediately obvious. Our office is committed to a healthy balance between work, family and play. My colleagues are amazing lawyers and our team could compete with the best law firms in the country. Our clients are smart, sophisticated and dedicated to the meaningful work they do. I simply cannot think of a more meaningful and enjoyable job.
It is the goal of our office to meet the legal needs of the university and to minimize the need for outside counsel. From time to time, our lawyers have retooled their practices to gain special expertise in areas such as health care regulations, NCAA compliance, export controls and employee tax. Because our office is prohibited by statute from litigating, we regularly work with the Attorney General’s Office on employment and tort litigation. On the rare occasions when a vendor relationship goes south, and cannot be resolved through informal negotiation, we hire law firms to litigate those disputes. These professional interactions, along with the great relationships I developed with my colleagues during my years in private practice, keep me connected with the private practice community.
AALM: What qualities do you look for when choosing outside counsel for litigation needs?
Payne: When hiring outside counsel, I look for a law firm and a lawyer with a great reputation and demonstrated competence in the area of law, underlying the dispute. Because we are a public institution, we ask our firms to provide us their best legal rates and we expect them to be efficient with their time.
AALM: How would you describe your ideal relationship with outside counsel?
Payne: Because I have a lot of experience in both private practice and in higher education law, I expect to work with outside counsel in a very collaborative fashion. I want to be kept regularly informed about the progress of any litigation matter, and I want to have sufficient time to review and weigh in on all aspects of the case.
AALM: What major concerns does the university’s board raise about outside counsel? How do you address those issues?
Payne: Our board and senior leadership do not micromanage the work that we do as lawyers. However, they do want to be kept regularly informed, particularly concerning litigation. Because we are a public institution, leadership expects us to appropriately manage the public funds that flow through our office. We keep the board and senior leadership, regularly informed about our work and the litigation we oversee. We minimize the use of outside counsel and carefully manage those relationships to make sure the university is getting the best bang for its buck.
AALM: What challenges do you face when working with outside counsel?
Payne: The ever-rising costs of outside legal counsel always present a challenge. More and more, we are asking our law firms to consider creative billing arrangements that include discounted hourly rates, blended rates, fixed fees and fee caps.
AALM: What changes do you see in the future with regards to the relationships between the business and legal community?
Payne: I have thought for years, even during my law firm practice, that the tradition of hourly billing is not a sustainable model. It’s miserable for the lawyer, miserable for the client, and drives a wedge into the attorney/client relationship. As businesses pull their legal work in-house to avoid the vagaries of the marketplace, I expect law firms to become more proactive and creative in the way they off er and bill their services.
AALM: How has technology changed your business and your legal needs?
Payne: The founder of our office, John Morris, was deeply committed to finding and using technologies that would make our practice more efficient and effective. One of the most significant technologies that we have implemented is our electronic document management system. Keeping track of the thousands of new matters that we open every month is essential. The system allows us to be organized and collaborative, since several lawyers will oft en work on the same matter. It also helps us to avoid reinventing the wheel each time a new matter, with old themes, comes along.
AALM: How would you recommend a law firm maintain a relationship with their business client?
Payne: The best way to maintain a relationship with any client is by providing prompt, excellent and cost-effective service. Holiday gift baskets aren’t the way to keep a client and public entity clients have a duty to decline these gifts.
AALM: Share a unique story with our readers about a positive or negative outside counsel experience.
Payne: Lawyers in private practice should keep in mind that opposing counsel may one day be a potential client. There is often a disturbing lack of civility between lawyers, particularly those who sit on the opposite sides of a dispute. Without mentioning any specific stories from my time in private practice, suffice it to say that there are a few lawyers in town who were so offensive and miserable to deal with in private practice, that I could never direct university work their way and would think twice about a law firm that has the bad sense to employ them.
AALM: What advice would you give to attorneys wishing to switch to general counsel?
Payne: First, working for a reputable law firm is great experience and often necessary to secure a good in-house counsel position. Second, living the life of a private practice lawyer is not for everyone. In fact, I’ve known of only a few who love it and do it well. If private practice is not for you, and you’ve lost your love for the law, don’t despair. A corporate counsel position may just be the salve to heal that wound.
AALM: What advice would you give to attorneys looking to win your business?
Payne: Be prepared to go through a RFP process, depending on the anticipated cost of the legal work. Whether or not an RFP is required, be creative when you offer your services. It’s our job to obtain excellent legal work at a cost-effective price.
Sponsored by Dorsey & Whitney