Vive la Difference

February 14, 2011

One of the most common and persistent questions that I have been asked over the last four years is what are the real differences between practicing as a transactional IT lawyer in house as opposed to in private practice.

My, by now quite well rehearsed, answer goes along the lines of:

 “Well the law is the same and the contracts are the same and so in many ways are the negotiations”.

If anything I have found that the quality of work can be higher and in a sense more specialist because in private practice there is always a greater variety of work, some of which may take you away from IT. For example, providing corporate support on the venture capital acquisition of an outsourcing company or advising on a construction outsourcing contract, all of which can from my experience come your way.

However this is only a part of the story and does not really recognise the very different environment in which we practice as in house lawyers. The first big change is discovering that there are other professionals on a project who do have a genuine and sometimes profound input to the development of a contract, such as programme directors and technical experts and of course the company’s senior management. You do come across these people in private practice but often their views are filtered by an in house lawyer or commercial representative. Thus in private practice you can sometimes get an exaggerated impression of the importance of lawyers (how can this be I hear you asking!) relative to other disciplines. This might seem threatening but I actually find it quite stimulating. It makes me keep questioning the validity of the legal advice I provide to ensure that it is in the right context and proves effective in practice.

The other big change is the recognition of the amount of work that goes on after a contract has been signed in terms of implementation, change and contract resets. These can remain largely hidden to an external advisor but make up a substantial portion of in house work for commercial and legal advisers.

It is not therefore so much the law or the ability to advise on it in practice and negotiate contracts to good effect that marks out the role of the in house lawyer. It is rather operating in this more comprehensive climate deeper in the workings of an organisation. This encourages a focus not only on “What is the problem” but “I can see there is a problem how can we fix it”. This of course is also the approach of the good private practice IT lawyer, but it is a matter of degree. In house you are encouraged, almost driven to a solution oriented approach, while still of course recognising and dealing with risk.

It is for these reasons that we have established an In-House Group in SCL (with considerable input and drive from Shanthini Satyendra of Accenture) which is now led by Dervish Tayyip of Microsoft. This group is promoting a series of events with this practical approach in mind. The first example is the Seminar on Cloud Computing on 24 March which you will see is sponsored by the In-House Group. More such events are planned. The intention is very much not to create an exclusive club within SCL but to run events that will be of particular interest to the in house community. It follows I think as night follows day that these events should also appeal to lawyers in private practice and indeed other professionals in the IT world.

I would therefore encourage lawyers firstly in house to recognise the potential value of these focused events which are tailored more for them, but also lawyers in private practice to attend. As I say the differences and approach are not always obvious but they are there and they are important.