The Inside Counsel Revolution: Resolving the Partner-Guardian Tension

by Ben W . Heineman

Overview

The Inside Revolution: Resolving the Partner-Guardian Tension, provides a thoughtful and thought provoking analysis of the role General Counsels, and lawyers more generally, can and should play in business and society.

In the past 25 years, there has been a revolution in the legal profession. General Counsel and other inside lawyers have risen in quality, responsibility, power and status. Once second-class citizens in corporations and the legal profession, they have become core members of top corporate management, equaling in importance the Chief Financial Officer and the finance function. They have dramatically shifted power from law firms to corporate law departments, assuming strategic direction over legal matters and exercising far greater control over law firm billing and economics.

Ben W. Heineman, Jr. has led that revolution in his nearly 20 years as the top lawyer at GE and then in teaching and writing as a Distinguished Senior Fellow at Harvard Law School’s Program on the Legal Profession and lecturer at Yale Law School. In this analytic and prescriptive book, he describes the essence of that transformation and the modern role of inside counsel: the key functions, relationships, issues, problems and dilemmas. Moreover, he argues for the role of inside counsel as lawyer-statesman, motivated not just by the desire for income but by broader values of integrity and corporate citizenship.

In this analytic and prescriptive book, he describes the essence of that transformation and the modern role of inside counsel in helping attain the corporate mission of high performance with high integrity: the key functions, relationships, issues, problems and dilemmas. He argues for the role of inside counsel as lawyer-statesman and as a partner of the CEO but also guardian of the corporation, motivated not just by the desire for income but by broader values of integrity and corporate citizenship.

The Inside Counsel Revolution is a succinct, concrete yet visionary statement of first principles from a highly regarded founder of the in-house revolution that fundamentally changed the legal profession and reframed the lawyer-statesman role in this era to serve the performance, integrity and risk goals of global capitalism.

Published by the American Bar Association in April 2016. 

Product Details

ISBN-13:	9781634252799
Publisher:	American Bar Association
Publication date:	08/15/2023
Pages:	527
Sales rank:	404,471
Product dimensions:	6.10(w) x 9.10(h) x 2.00(d)

About the Author

Ben W. Heineman, Jr., was GE’s Senior Vice President–General Counsel from 1987–2003 and then Senior Vice President for Law and Public Affairs from 2004 until his retirement at the end of 2005. He is currently Senior Fellow at Harvard Law School’s Program on the Legal Profession and its Program on Corporate Governance, Senior Fellow at the Belfer Center for Science and International Affairs at Harvard’s Kennedy School of Government, and Lecturer in Law at Yale Law School. A Rhodes Scholar, editor-in-chief of the Yale Law Journal, and law clerk to Supreme Court Justice Potter Stewart, Mr. Heineman was assistant secretary for planning and evaluation at the U.S. Department of Health, Education, and Welfare and practiced public interest law and constitutional law prior to his service at GE. His book, High Performance with High Integrity, was published in June 2008 by the Harvard Business Press. He writes and lectures frequently on business, law, public policy, and international affairs. He is also the author of books on British race relations and the American presidency.

 

He is a member of the American Philosophical Society; a fellow of the American Academy of Arts and Sciences; a member of the Presidents’ Circle of the National Academies of Sciences, Engineering, and Medicine; and a former member of the National Academy of Science’s Committee on Science, Technology, and Law. He is recipient of The American Lawyer magazine’s Lifetime Achievement Award, the Lifetime Achievement Award of Corporate Counsel magazine, and the Lifetime Achievement Award of Board Member magazine. He was named one of the Top 50 Innovators in Law in the Past 50 Years by The American Lawyer, one of America’s 100 most influential lawyers by the National Law Journal, one of the 100 most influential individuals on business ethics by Ethisphere magazine, and one of the 100 most influential people in corporate governance by the National Association of Corporate Directors. He serves on the boards of Memorial Sloan Kettering Cancer Center, the Center for Strategic and International Studies, Central European University, and Transparency International– USA. He is a graduate of Harvard College (BA–History), Oxford University(B.Litt—Political Sociology), and Yale Law School (JD).

Table of Contents

Part 1 The General Counsel as Partner and Guardian 1

Chapter 1 Introduction: The Inside Counsel Revolution 3

A Transformation 3

B Credit Where Credit Is Due 8

C Causes: A Schematic View 10

D The Prescriptive Perspective 15

E Core Concepts and Key Issues 21

Chapter 2 The Lawyer-Statesman Ideal 23

A Overview: Is It Legal? Is It Right? 23

B Historical Traditions 26

C Outstanding Expert, Wise Counselor, and Accountable Leader 31

D "Complementary" Competencies: Beyond the "Core" 41

E Analysis before Recommendation 46

F Analysis before Advocacy 51

G An Important Conscience of the Corporation 53

Chapter 3 Partner-Guardian Realities 55

A The Tension 55

B The Fusion 58

C The Obstacles 63

D The General Counsel's Character, Reputation, and Identity 68

E Protecting Other Inside Counsel 71

F Alliance with Other Staff Functions 74

G The Board of Directors 75

H The CEO 81

I Dealing Directly with CEO Risk 83

Chapter 4 The Cultural Imperative 91

A Primacy 91

B The Pressures That Corrupt 95

C Imposing Discipline 108

D Letting Employees Speak-and Then Listening 115

E An Integrity "Learning Culture" 121

F Financial Rewards 125

G Assessing Culture 127

Part 2 Key Issues 129

Chapter 5 Compliance and Legal Hazard: The Essence 131

A Complexity 132

B Regulatory Trends 135

C Determining What Is the Law 140

D The CEO as Chief Compliance Officer 142

E Prevent, Detect, and Respond 144

F Deals 159

G Value of a Good Compliance System: Morgan Stanley 161

H Value of a Good Response to Compliance Disaster: Siemens 163

I GC, CFO, and Chief Compliance Officer: Function Not Form 168

J People and Resources: Platinum, Gold, Silver, Bronze-or Nickel 176

Chapter 6 Ethics: The Complexity 183

A Identifying Ethical Issues 185

B Setting Ethical Standards 188

C Challenges in Global Supply Chains 197

D Conflict between Global Standards and National Law 213

E Ethical Problems When There Is No National Enforcement 219

F Exiting Rogue States 222

G Cost: Small and Medium-Sized Companies 226

H Values 226

Chapter 7 Risk and Crisis Management 229

A Scope 230

B Organizational Principles 232

C Framework Questions 236

D Catastrophic Events and Crisis Management 244

E Fukushima: Debating Disaster 249

F BP and the Gulf: "Exhibit A" for Catastrophic Costs of Failure 253

G A Comment on Geopolitical, Terrorism, and Cyber Risk 264

H The Need for Specialized Knowledge 270

Chapter 8 Governance: The Board Relationship? 275

A The Three Dimensions of Governance 276

B The Framework of Formal Rules 278

C The Six Essential Tasks of Board-Management Leadership 280

D Special Problem: Executive Compensation 300

E Board Independence and Leadership 307

F Shareholders: Stewards and Activists 310

Chapter 9 Citizenship and the Primacy of Public Policy 317

A Philanthropy 319

B Business Activities 323

C Collective Action: Anticorruption 326

D Public Policy 335

E Reporting 354

F Reputation 357

Part 3 The Global Legal Organization in the Future 359

Chapter 10 Leading the Law Department 361

A Mission 361

B Hire the Best 363

C Delegation 371

D Accountability: Centralized or Decentralized Model 374

I Global Integration 380

F Duties to Inside Lawyers 382

G Innovation, Management, and Cost 390

H Explaining the Legal Organization to Business Leaders 398

Chapter 11 Law Firms-And Alternatives 401

A Problems: A Brief Bill of Particulars 402

B Solutions: A Brief History 406

C The Primacy of Segmentation 411

D Rethinking Resource Allocation 412

E Resetting the Relationship 417

F Cooperation on Ethics 428

G A Personal Note 438

Chapter 12 The Future: Problems and Possibilities 441

A Extending the GC's Reach 442

B Attitudes: Boards of Directors, CEOs, and Business Leaders 444

C Making the Case That Cost Creates Value 447

D Going Global? 450

E Portner and Guardian 454

Notes 457

Acknowledgments 491

About the Author 493

Index 495

Editorial Reviews

"Ben Heineman redefined the world of inside lawyers and corporate General Counsels. His book, The Inside Revolution: Resolving the Partner-Guardian Tension, provides a thoughtful and thought provoking analysis of the role General Counsels, and lawyers more generally, can and should play in business and society. Every lawyer working in or for a business should read this book. And every business leader who works with lawyers should read it. Ben’s analysis will help them understand what to expect from their lawyers, as it also holds a mirror to what they should expect from themselves in handling the complex issues that define the modern corporate world."
— Frank Blake, former Chairman and CEO, Home Depot

“This powerful book explains how the inside counsel revolution has helped shape the role of responsible global companies and has transformed the legal profession. How should the corporation where you are general counsel deal with the use in China of the ultra-sound equipment it manufactures to carry out sex-selection abortions aimed at favoring boys over girls? What's an in-house lawyer to do when her duty as guardian of the corporation conflicts with her role as the CEO's lawyer and partner? On these issues and everything else — from good citizenship, to managing the profit maximizing urges of outside law firms, to handling internal scandals, to managing risk, to dealing with laws and regulations that contradict each other once you cross a national border, to chiming in on appropriate executive compensation — Ben Heineman, Jr. has provided the ultimate analysis of how corporations can, and should, function in a complex legal environment here and around the globe. More than that, he offers a fascinating set of examples of how it’s done. Every board of directors should read this book — and make not just their lawyers but their executives, too, study it and take an oath to live it.”
—Steven J. Brill, Brill Journalism Enterprises

“Ben Heineman is responsible for defining the modern Office of the General Counsel. This is a must read for all in-house attorneys?—and for all outside lawyers who serve corporations.”
—Michael J. Holston, Executive Vice President and General Counsel, Merck & Co.

“This is a must read for any director of a public company. Ben Heineman, legendary GE GC, makes a compelling case that the General Counsel is an essential partner for boards and business leaders on core issues of performance, integrity and risk. The stories of right and wrong will stay with you for years.”
—Shelly Lazarus, Chairman Emeritus, Ogilvy & Mather

“Major international corporations have become quasi- public institutions impacting the thousands, if not millions, who are either employed by them, use their output, or are impacted by their functioning, worldwide. Inside legal counseling of their management requires a vast combination of talents: law, obviously, and sensitivity to public policy, governmental concerns, and most importantly, courage. Ben Heineman, the long-time leader of the inside counsel revolution, has that combination in abundance and brings to those attempting that counseling an aspirational model, and to the general reader, a fascinating glimpse of the tensions inherent in counseling the management of these unique institutions.”
—Ira M. Millstein, Senior Partner, Weil, Gotshal & Manges

“Based on his pioneering work in creating the modern corporate law department, lawyer-statesman-teacher Ben Heineman ably sets out the core rules that must guide lawyers of skill and integrity as they advise businesses striving to achieve sustainable strong long term performance. The challenges he faced and the lessons he learned provide an invaluable and practical vision for both inside lawyers and the external counsel who work with them.” —John F. Olson, Partner, Gibson, Dunn & Crutcher

“Ben Heineman puts forth a vision of the modern General Counsel that is both aspirational and profoundly practical. Refreshingly candid about the challenges facing global companies today, The Inside Counsel Revolution shows why Heineman’s ‘lawyer-statesman’ General Counsel is an indispensable member of a winning leadership team. A must-read for CEOs and boards of companies seeking high performance with high integrity.” —Lynn Sharpe Paine, John G. McLean Professor of Business Administration, Harvard Business School

“Ben Heineman, a renowned pioneer at GE, has written an extraordinary and definitive book on the role of the general counsel in companies today. It offers rich insights not only for those of us who serve in these positions, but for business people who must operate at the intersection of business, law, public policy, and corporate responsibility.” —Brad Smith, President and Chief Legal Officer, Microsoft Corporation

“No one understands better the critical role General Counsel play in assuring the success of global corporations than Ben Heineman, the former GC of GE. Expanding on his important and ground breaking work and writing, Heineman’s The Inside Counsel Revolution is deeply insightful— rich with detailed analysis and penetrating vignettes based on real life crises. This is a must read for anyone, not just lawyers, who want a practical vision of how global corporations can thrive and avoid the reefs and shoals of today's treacherous legal environment.” —Larry D. Thompson, former Deputy Attorney General of the United States and former Senior Vice President and General Counsel, Pepsico

“Ben Heineman’s extraordinary book, The Inside Counsel Revolution, is a ‘must read’ not only for inside corporate counsel at all levels but also for all corporate officers in the C-Suite and senior outside counsel who regularly interact on major matters with the corporate team. Why? Two primary reasons: First, it is a richly-textured and comprehensive chronicle of his remarkable first-hand experiences in high-level, real-world, and high-stakes settings. Second, it is chock full of wisdom, insightful analysis, and priceless advice for any lawyer sitting, or aspiring to sit, on the hot seat of the chief legal officer.”
— E. Norman Veasey, former Chief Justice of the Delaware Supreme Court

“During and after his landmark tenure at GE, Ben Heineman became the leading voice articulating the highest aspirations for the general counsels that have followed in his footsteps. In this insightful and deeply practical book, he forcefully describes the tremendous potential that general counsels have to help their companies, the legal profession, and society as a whole achieve what he aptly refers to as ‘high performance with high integrity.’ His sustained and comprehensive analysis should be required reading for every academic, practitioner, and law student committed to making this ideal a reality.”
—David B. Wilkins, Lester Kissel Professor of Law and Director, Center on the Legal Profession, Harvard Law School

"The transformation of the corporate legal department from a “backwater” into a premiere destination for ambitious lawyers to learn and grow their careers, in many ways forms the nub of what Heineman calls the Inside Counsel Revolution..... Heineman’s book is not a memoir of his time inside GE or a history of the inside counsel movement. Rather, he offers a set of prescriptions for how GCs can maximize their role in a corporation. The book explicates the unique role that a general counsel can play to help a corporation meet its highest performance and maintain integrity. He draws on recent history to call out lawyers who have fallen down, or commend his colleagues who in his view have effected tough decisions.... in-house counsel bring a unique perspective and analysis that makes them a conscience [of the company], their views important and their role bigger than a bureaucratic function, he writes."
—Gabe Friedman, Bloomberg Big Law Business

From the Publisher