Trust is the inventory

People assume a law firm's General Counsel spends the day fending off lawsuits against the firm. Those happen, and I handle them, but they are the smallest part of the job. The largest part is a question I ask about fifteen times a week, usually before nine in the morning: can we take this?

Every new matter at Hale & Mercer goes through a conflicts check before a file is opened. The check compares every party to every party in every matter the firm has ever handled, and it flags anything that touches. Most flags are nothing: a common surname, a company with the same name in another state. Some are something, and the something is almost never dramatic. A client's cousin. A company that bought a company we once advised. A witness who was a client in 2014.

The rules on conflicts of interest are long, but the principle is short: a lawyer cannot act for you if their loyalty to someone else, past or present, might pull against you. It does not matter whether it actually would. The client has to be able to trust that it could not. That is the inventory, and every engagement we accept either protects it or spends it.

In 2016, at my previous firm, the check turned up a conflict in a lucrative engagement that was already underway. Nobody else had spotted it, and there was a reasonable argument that it was technical. I advised the firm to withdraw. The partners were, to put it kindly, unpersuaded. We withdrew. The client went elsewhere and the revenue went with them. I still think it was the most valuable thing I did in nine years there, because every other client could now be sure of the answer to one question: would this firm put my interests behind its own? No.

Elena Marsh hired me to be Hale & Mercer's first General Counsel on the strength of that story, which tells you something about the firm. The conflicts process I built here is not sophisticated. It is a database, a checklist, and a rule that nobody opens a file until the check is done and signed, by me. It costs about four hours a week in declined work. Against the firm's reputation, four hours is nothing.

The rest of the job is answering questions. Can I take this call? Can I mention this in a speech? A former client wants to be a reference; what can I say? Lawyers ask these questions because they want to get it right, and the single most useful thing a General Counsel can do is make it easy to ask. I keep my door open and my answers short. Most of them are yes. The ones that are no are the ones that matter.

A law firm does not sell briefs, deals or closings. It sells the confidence that the person acting for you is acting only for you. Everything else is packaging. My job is to make sure that when the packaging comes off, the thing inside is what we said it was.