Getting in and Out of the House: Career Trajectories of In-House Lawyers
37 Pages Posted: 23 Jun 2020
Date Written: June 22, 2020
The traditional story of in-house counsel in the late twentieth and early twenty-first centuries is one of a transformation and triumph over large law firms in a zero-sum game for power, prestige, and money. That story, however, is inaccurate. In-house lawyers were part of the corporate legal elite before large law firms rose to power in the late nineteenth century. In-house counsel then lost ground between the 1940s and 1970s, only to mount a comeback to elite status beginning in the 1970s. Yet the in-house comeback was not a simple power struggle with Big Law. Rather, modern in-house lawyers came from within the ranks of Big Law, an offshoot rather than a competitor of large law firms, sharing Big Law’s background, training, professional values, ideology, and ethos. Thus, the story of in-house lawyers and their relationship with Big Law is one of a complex symbiotic affiliation, not a competitive zero-sum game.
Accurately describing the in-house counsel–Big Law relationship as a symbiotic codependency is not merely a matter of correcting the historical record. Rather, the standard story is incapable of answering basic questions about corporate law practice. For example, if in-house counsel triumphed over Big Law in a zero-sum game, why have in-house lawyers gained only limited control over outside counsel and core legal functions of the corporation? Why are some large law firms prospering when they should be declining? Moreover, if in-house counsel won, why are some in-house lawyers moving back to Big Law? The symbiotic understanding of the in-house–Big Law relationship reveals answers to all of these questions. Rhetoric aside, in-house lawyers never sought to strip outside counsel of their power and control and, given their dependence on Big Law, were never in a position to accomplish such a goal. Instead, the symbiotic codependency between in-house and Big Law lawyers explains both the continued success of some large law firms and the emergence of a two-way street between in-house departments and Big Law.
This Article examines the rise, fall, and comeback of in-house lawyers over the past century. In revising and correcting the standard story of in-house practice, it makes two contributions to the existing literature: disproving the zero-sum thesis, it explores the complex symbiotic relationship between in-house lawyers and Big Law, shedding new light on corporate law practice; and it offers, for the first time, an account of in-house practice in the twenty-first century. The Article then explains how the symbiotic relationship resulted in in-house counsel achieving only partial control over the provision of corporate legal services, allowing some large law firms to continue to thrive, and explores how the codependency led to the emergence of a two-way Big Law–in-house street and the rise of a robust in-house lateral market. These phenomena reflect the increased integration of the elite in-house and Big Law worlds, at the same time as the in-house universe itself expands and increasingly stratifies. Finally, the Article offers preliminary thoughts about the meaning and impact of these practice developments for in-house counsel, Big Law lawyers, the legal profession, and the public.
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