Advice for new General Counsels (GCs)

Here’s some advice I give first-time General Counsels (GC) or, as the kids today call themselves, Chief Legal Officers. These are written from my perspective as someone who had worked as an Associate at a law firm and in-house at Google before going to Twitter as the GC. Your mileage should vary.

Being a GC is lonely, you need colleagues.
Once you become a GC you have no colleagues. Your CEO and Board are your boss. You may have lawyers who work for you, but you are their boss. Your colleagues are the other members of the management team, but they don’t really care about legal stuff the way you do. They’ll be friends, but you need to also have GC friends, and you’ll need to find them outside of the company.

Eventually (on my last day), I formed a network of SF Tech GCs that would have been WONDERFUL to have had before I left. At the time I met with a bunch of peers outside of work and they were a godsend. These folks should be struggling like you. That way you’ll feel free to ask them anything and you’ll be as helpful to them as they are to you. They are your support group as well as your knowledge base. Plus they’ll remember being as clueless as you, which will make them good teachers. These are not your mentors. You need good mentors too, but these are your colleagues.

Arabella Mansfield, 1870.
Public Domain image from Wikipedia.
You are the boss and the end of the line.
When you are the GC, you are it. Yes you can “escalate” things to your CEO or Board but doing that a bunch will not build respect with either. For many hard decisions, you are the decision maker. You cannot just let something slide or say “here are three options.” You are being paid to be responsible for this stuff and have an opinion. Also, there are some things that only you can do, especially before you have a team. When the CEO is freaking out about the CFO deciding to go to your biggest competitor, talking to somebody else likely will not cut it. Vacation purity will go down. Stress will go up. You will need a way to deal with that and it is very important that it is not alcohol, drugs, or other bad things.

You are your company.
If you come from being an outside counsel, you may misunderstand the ethical issues involved in being at a company. At an outside firm you might have had a bunch of ways to distance yourself from a bad thing that a firm clients does. You might not work on their matters. Or not advise them on that subject matter. And, in any case, even bad actors need legal defense. When you are in-house that is no longer the case. You are your company. If they do something unethical or illegal, that is you doing it. Another way to say that is that there is no they, only we. So… you need to be VERY comfortable with the company you are joining. Both what they are now and how they might change over the time you are there. Your only remedy will likely be to quit quietly. Quitting quietly is not a good remedy. Especially if you need the job and the money it provides.

Interior of H.A. Goodrich & Co.'s Store. Public Domain
illustration from Fitchburg, Massachusetts
Past and Present
via Internet Archive.

You are the establishment.
You likely came from being a part of a team and not being in the very senior part of management. You might even have complained about the Partners or the management team at your last company. That ends now. You are the management. If the company has a problem, then it is your problem. You whining is not a good thing. You are not a victim and you need to fix what you don’t like, not complain about it. That goes for even things that the CEO or Board do that you don’t agree with. Make sure you had your say. Quit if you need to, but if you are not going to quit, you need to take ownership of it with the rest of management.

You work for the Board (and the CEO).
GCs have a weird dual reporting structure because they represent the corporation, not any particular person in the corporation. Your day-to-day boss is the CEO, but the Board is also your boss and you need a relationship with the Board. This can be tricky because the CEO often thinks of themselves as the only person who “reports” to the Board. You need to have your own relationship with the Board for a bunch of reasons and a wise CEO will understand that your relationship with the Board is helpful to them as well. You should help the CEO manage getting the board deck together and with the basic stuff that goes comes with managing the Board. In that sense you will act a bit like a Chief of Staff and Executive Assistant. You have a legal role too, and may be the Board Secretary as well, but you should do the other, more mundane stuff as well in order to ensure that you are part of the company having a good relationship with its Board. For example, you should have periodic informal meetings with your board members. You should know how many kids they have and where they like to take vacations. FWIW, CFO’s have a similar need for that type of direct relationship.

Crocker Block. Public Domain
illustration from Fitchburg,
Massachusetts Past and Present

via Internet Archive.
You are also an owner of the company & member of the management team. 

Your CEO and the rest of the team will look to you for your legal opinion. That is very important. If you screw that up, you will not be GC for very long.

However, you are also (hopefully) a significant owner of the company through your stock grant, as well as a member of the senior management team. In those roles the CEO is looking for you to have an opinion on what is the right thing for the company to do. If you come from being an outside counsel, you may be used to giving opinions of the form: “Doing X is a legal risk.” or perhaps “Doing X is a legal risk and I would quantify it in the following way.” Once you are a GC you need to be ready to say things like: “Doing X is a legal risk but is important for us to do because Y” or “Doing X is a legal risk that is not worth pursuing because Y.” What you fill in for Y will not be legal analysis but business, customer, user, employee, etc. analysis. Get to know those parts of your business and start making contributions that have nothing to do with legal.

Be careful about acting in your non-legal capacity.
Now that I’ve told you not to only act like a lawyer, I need to flag some important pitfalls. First, you need to do a good job of labeling and calibrating your non-legal advice. You’ll make more mistakes and tread on other management team members expertise in your non-legal role. If you are not clear about it, the management team may start treating your non-legal advice like your legal advice (or vice versa), and that is usually unhelpful. This can be as simple as saying, “this isn’t a legal issue but…” or “there is nothing legal that requires X but…” and “here I’m speaking directly about our legal requirements under the contract.” You needn’t do it all the time, but being able to be clear can help a lot.

Second, we lawyers are somewhat spoiled by the protections that our legal advice affords us under the law. We can have conversations with people that won’t be revealed in lawsuits. When you venture out into the world of non-legal advice those protections fade away. Some lawyers have gotten into bad habits based on their attorney-client relationships and have gotten used to saying really dumb things in email that they (a) don’t mean, and (b) would never let a client say in email. Remember that your non-legal work is not protected by your special status as an attorney. Do what you tell your clients to do. Imagine your email on the front page of the Wall Street Journal.
Legal is a cost center.
If you came from a firm, legal advising was the profit center. Lawyers were extremely important and probably ran the show. That is not true now. You are a support service. Act like it. Don’t waste your clients time (ie. arrive to meetings on time, with an agenda, etc.). Respond to their emails. Do the things you said you were going to do when you said you were going to do them. Provide value. Make sure your internal clients are happy. And, understand that winning at the Supreme Court and establishing precedent are not the purpose of your business. They shouldn’t be your purpose.

Thurgood Marshall, 1976.
Public Domain image from the
Library of Congress via Wikipedia.
Set yourself up to be constructive.
Some people say GCs shouldn’t say no. I strongly disagree. There will be times when you need to say a flat no. Those times will be bad for the company and for you. But the flat no you enforce may be a moment where you are providing your greatest value to the company. Don’t shy away from those times, but don’t welcome them either.

Try to set yourself up so that you do not get into a flat no situation by understanding legal issues early, and by understanding product goals enough to suggest solutions that will meet the product goals and legal constraints.

Understanding legal issues early, particularly in a startup, means having a very good understanding of who is working on what. Many startups spend a large amount of time transitioning from everyone knowing everything to having processes so that people can know what they need to know. That in-between stage is a hard one for the GC. If you find out about a feature launch from reviewing the launch blog post, you are likely too late for a product redesign. Your product team will have spent a bunch of time working and dreaming about the feature implemented exactly the way they have implemented it. They will be looking to you to say yes (or no). That may be a valuable “no” but it will hurt a lot. And if you say “yes but…” then at that point you may only be putting lipstick on a pig. It is FAR better to be able to understand what is going on when the feature is just an idea. Product managers, designers, and engineers are really good with constraints. They design within them all the time. Having them understand the legal constraints and desires when designing is essential. To do that, you need to be really in tune with whatever part of your company first thinks up new features. Google’s first lawyer, Kulpreet Rana’s practice of taking one afternoon a week to just wander around introducing himself to people and asking them what they were working on is brilliant in that respect (and also helps with the culture points below).

Equally importantly, once you see a legal issue, don’t just issue spot. Know enough about what the teams are trying to do to get your hands dirty in a design setting to help them understand the legal constraints and design within them. Sometimes this looks like working with the engineers to implement variable public domain rights for very old books in Google Books and embedding local copyright law into code. Sometimes it is jumping from a legal constraint to value creation, such as when Glenn Brown, Zahavah Levine, and I helped design the YouTube DMCA system to also allow content providers to leave content up and get a share of revenue. There is almost always more than one way to do something. Help your product teams choose the way that helps users and will survive legal challenges.

You have a decision to make about who to hire when.
As you build your team, you need to decide who to hire when. You will eventually be middle management and do very little legal thinking. You also came into this job not knowing most of the legal areas you will supervise. Do you hire what you know first, or what you don’t? Do you start building with someone who could be the next GC, or someone more junior who can churn through more basic stuff so you don’t have to? If the company is getting bigger, do you start with an employment lawyer? There is no right answer, other than that employment lawyers tend to get hired really early because very few GCs love dealing with employment issues, and good employment lawyers are really good.

Your team(s) are everything.
As your team grows and perhaps you take on a few extra responsibilities (public policy, trust & safety, communications, corporate development, business development, human resources, etc.) because you are a competent leader at a growing company, your teams will be much more important than you in terms of the company’s success. Many lawyers never get management training and didn’t start out life wanting to be managers. That is your life now. It is difficult and you need to want to do it extremely well. That means training, intentional focus, and making sacrifices on other things to make sure that you are doing the management part well. It also means understanding, valuing, and actually achieving diversity from the get-go. Start growing your leaders and empowering them. Get out of the way.

If you don’t like management and would prefer to be doing law stuff, being a GC probably isn’t the right job for you.
Clara Shortridge Foltz. Public Domain
image from History of the Bench and
Bar of of California
 via Internet Archive.

You define the culture of the Legal department, and likely the culture and ethics of the company.
Many of you will get the privilege of being at a very small company, or being the first or second attorney at the company. When I joined Twitter we were around 50 people and had one other intrepid lawyer (the great @tyip!). You will define the relationship between the company and legal. You will define what legal is. Those are probably your most important jobs other than ensuring the company continues to exist. If you establish that legal should be consulted last, heard to say no, and then overruled by others without consequences, that will be the way legal is treated by the company for a very long time. If you are teammates who provide value and help get stuff launched, it will be hard to lose that reputation. Make sure that legal’s relationship with the company is something you focus on. Have goals. Do things that help. For example, Ben Lee and I created the Innovators Patent Agreement as a way to signal to engineers that Twitter was in line with their ethics on patents so that legal could contribute to the company’s #1 priority of hiring great engineers. Another one of my favorite hacks is to set up a desk by wherever your team gets coffee for the post lunch afternoon coffee time. Sit there. Answer questions. (Yes, it is amazing how many engineers have “friends” with weird legal issues and need to be told to get a lawyer.) Being a GC is not a popularity contest, but you need to be known and you need to make sure people understand you are on their team, especially when you disagree with them.

GCs are also often the oldest and/or people who have the biggest vocabulary for ethics at the company. I don’t think we are necessarily the folks who care the most about ethics or have the best ethical compass, but we have the hubris / common sense to have been thinking about ethics and how it applies to our work for a long time. That often makes the GC the de facto Chief Ethics Officer. The important part of that often unofficial role is to understand the difference between ethics or values, and law. When a GC says something is OK to do, we sometimes mean legally OK but the company will frequently hear that it is both legally and ethically good. Ideally everyone at the company is thinking about ethics and your founders, CEO, Board, and management team all provide a solid tone from the top on ethics. That is not always the case. You should ensure that you are the backstop on ethics. Consider making that part of your job official. Definitely talk to the company about its ethical responsibilities and always consider those in your analysis. “That’s legal but completely unethical” is extremely important advice from a GC.

You are not an impostor. Nobody was born a GC. No GC knows every area of law. There is no perfect way to manage people. There is no secret to being a GC that is not something that was learned through trial and error on the job. The truly incredible GCs that I have met may have been better at the job than I but they weren’t superhuman. They started out just like me and you.

Finally, have fun. I found being a GC to be really interesting, challenging, and rewarding. I still love the various teams I helped build. I still have trouble not referring to my old companies with the pronouns “us” or “we.” Being a GC can be a phenomenal job (but it is only a job). Congratulations and good luck!

P.S. Thank you to the SFGCs email list for their useful comments on a working draft of this paper. Ken Carter and others on that list have grown it and made it into something great since I left SF. If you are an SF GC, DM me on Twitter (@amac) and I’ll forward to the right person to add you. If you are a D.C. GC, I’d also love to hear from you.

P.P.S. I got another great suggestion for a pic to add to this post, Laura de Force Gordon.
Laura de Force Gordon
Public Domain image via Wikipedia.