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External counsel a good bet when lacking in-house experience

2019-11-19

Organizations have increasingly found efficiencies by using in-house lawyers, but sometimes there is a need for them to seek outside help, says Windsor employment and education lawyer Sheila MacKinnon.

“If you’re doing something routine — like real estate, where the transactions are not particularly novel — it makes sense to use in-house counsel,” MacKinnon, managing partner of Shibley Righton LLP’s Windsor office, tells AdvocateDaily.com.

She points to a municipality needing to draft a new bylaw as an example of routine work that can likely be tackled by an organization’s internal legal team.

But sometimes, unique situations — including litigation — arise outside of the legal staff’s area of expertise. So at that point, they should consider tapping an outside law firm.

If the organization needs to defend or launch a lawsuit but that’s not something they do routinely, they might be better off hiring a litigation lawyer or firm that specializes in litigation and works exclusively in that practice area, MacKinnon explains.

“It becomes not so much a cost factor as a capacity issue,” she says. “It really isn’t to their benefit to train up just to do one file.

“But if you’re dealing with human rights complaints on a regular basis, for example, it makes sense to train in-house lawyers to take on those files.”

Often, she says, it’s simply less expensive to higher outside counsel. Costs associated with having a lawyer on staff go beyond salary and benefits. There’s the expense of mandatory training as well as support staff who require instruction as well.

“So a company or an institution would have to weigh the cost of getting this person up and running to the volume of work they anticipate will happen. The larger the institution, the more likely they have higher volume routine matters,” says MacKinnon, who has seen the evolution of in-house lawyers.

She recalls when opportunities for lawyers looking to work with an organization or business were largely restricted to banks, security commissions and governments. The work wasn’t very diversified and, until about a decade ago, the pay wasn’t nearly as good as private practice.

Although, for lawyers, in-house work can be an attractive alternative for those seeking regular office hours and predictability.

MacKinnon says the contrast between corporate counsel and those in private practice would be particularly noticeable during litigation, which involves intense work, especially during the period the issue comes before the courts. The lower-paid in-house lawyer would have to put in the same long hours and dedication on the file as the much higher-paid lawyer they're opposing.

"No litigator works nine to five" when they’re on a trial, she says.

But the pay has improved substantially and the work can be rewarding, MacKinnon says. There are also opportunities for lawyers to move from the legal department into the operations side of the establishment, where their legal knowledge and education are viewed as a benefit to the overall organization.

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2019-11-19