Today's General Counsel: Providing Accurate And Timely Advice Is Only Part Of The Responsibility

Sunday, July 1, 2007 - 00:00

Editor: Would you tell our readers about your professional experience?

Casey: I have been practicing corporate law since 1980. I graduated from the University of Notre Dame Law School in 1975, and I was a labor lawyer at Proskauer Rose in New York for two years. I came to Day Pitney in 1977, where I continued to practice labor law and then moved into the corporate area in 1980. Since that time I have represented both public and private companies.

Editor: Would you share with us the things that attracted you to Day Pitney?

Casey: During the time that I practiced in New York, I had just come out of the corn fields of Indiana, where I had gone to college and law school. Working in New York City, I felt like a very small fish in a very big pond. Day Pitney was the right size and the right location for me, and enabled me to grow as an attorney and to gain the confidence I needed. The firm has been a wonderful place for me, both personally and professionally.

Editor: Please tell us about the evolution of your practice.

Casey: Much of my practice is devoted to representing public companies. Today my work for public companies extends across a wide range of issues, including securities, corporate governance, executive compensation, employee benefits, and Sarbanes-Oxley.

Over the course of my career, public company practice has become increasingly complex. This comes from the extensive array of new federal statutes, particularly in the securities, corporate governance, and corporate compliance areas. The framework within which corporate America navigates its course is much more difficult than it was in the past, and that has meant that lawyers who focus on representing public companies likewise must navigate difficult and often fairly uncharted territories.

Editor: In light of the recent article on the "persuasive counselor" by former Delaware Chief Justice Norman Veasey and Christine DiGuglielmo, can you comment on the transformation of the role of general counsel in recent years?

Casey: Chief Justice Veasey's article focuses on the role of general counsel. I am struck by the transformation that has occurred with respect to the responsibilities of both general counsel and those outside counsel who advise companies and boards of directors - and in much of my practice I am acting as outside general counsel. Today general counsel and their outside advisors must consider all of the issues that the client faces, and you cannot provide useful advice to your client without completely understanding its business and its management. The client is relying on counsel for a clear perception of the law and the ways in which it applies to their business. In addition to responding to the client's questions, counsel must educate senior management on an ongoing basis. This role of counselor and advisor is one of the main characteristics of both outside and in-house counsel today, and it must be satisfied on a proactive basis.

Editor: As outside counsel you interface with in-house counsel on a regular basis. What has changed with respect to that relationship?

Casey: The best analogy is with the college football star who, in making the transition to pro football, notices how much faster the game is at the higher level. Today's legal environment is much faster than it was in the past. A public company is now faced on a daily basis with a myriad of laws, rulings, and regulations, which must be considered in connection with almost every business undertaking. A company's general counsel no longer has the luxury of being able to wait for answers. Guidance must be provided immediately, and considering the demands that general counsel faces, outside counsel must be readily available and accessible and be in a position to respond as promptly as possible in order for a company's general counsel and senior management to meet their own responsibilities to the company.

The good side to this development is that outside counsel is often included in the information flow at an early point in the process. There is a general recognition that having your outside counsel participate early allows the company to better shape its decision-making, and to consider the legal ramifications of taking one avenue over another.

Editor: Should the board of directors be involved in hiring, firing and compensating the general counsel?

Casey: While in theory this may be a good idea, I am not sure it works as a practical matter. A good workplace culture is one where the tone is set at the top, and that tone most often is set by the CEO, the CFO and the general counsel. They must be on the same page and acting with the same agenda, and that common agenda calls for general counsel to act as advisor to the CEO and CFO. A separate agenda for general counsel might serve to disrupt and confuse the process.

If the CEO retains the authority to hire, fire and set compensation for general counsel - and for the CFO, for that matter - it is nonetheless important that he or she keep the board apprised on an ongoing basis as to the relationship. Most directors believe that it is important for the CEO to have confidence in his or her principal lieutenants and defer to the CEO on this point, but they generally do not welcome a surprise announcement to the effect that the CEO has terminated one of them. I think that it is important in most cases for the CEO to discuss the matter with the board in advance of any final decision. In fact, under most by-laws, only the board may appoint or terminate officers of the corporation.

Editor: Should the general counsel meet with the board in executive session?

Casey: Yes, general counsel and other senior executives each should have the regular opportunity to meet with the board and board committees in executive session. And this is a two-way street. There are things that the directors need to hear that can only come from members of the senior executive team, and there are things that senior management needs to hear, such as board approach, goals and expectations, which in an executive session can only be communicated to senior management from the outside board members.

Editor: Where do you see the role of general counsel going over the next few years?

Casey: The transformation of the role of general counsel is a reaction to a number of things, and, in my view, the corporate scandals do not constitute nearly as important a basis for the greater responsibility of the principal legal officer as two other developments. First, there has been a significant increase in the number of statutes, rules, regulations, case law pronouncements and other legal requirements, and second, there has been a dramatic increase in public activism concerning corporate behavior and corporate image. These two developments mean that governing boards are demanding more of their senior executives, and of their general counsel in particular. And as to the increase in the sheer volume of law to which companies are subject, one of the truly significant factors is that the answers generally are not found in the text of a particular statute but rather require careful analysis and thought. That places a dramatic burden on general counsel. Concerning public activism, boards of directors today are aware that in the eye of the public they are not simply trustees acting on behalf of owners, but also as stewards of the public. This is an evolving area. I think it is fair to say, however, that boards are more vigilant about responding to outside pressures than ever before in corporate history. And it is to general counsel that boards most turn in attempting to shape the company's response to those public matters.

Editor: I gather, then, that you believe that general counsel has a role to play in establishing the right image for the company within the community.

Casey: I think that general counsel shapes the legal responsiveness of corporations. Today that extends to a wide range of subject areas which, in the past, were not regarded as strictly legal. The evolution of the general counsel position includes acting as advisor to the board of directors on issues which concern the community as well as the shareholders. In most corporate settings it is general counsel which has the responsibility to help outline for the board and senior management the appropriate context and appropriate framework. And the process of advising senior management and the board on governance and other public issues is something that occurs over months and years.

Editor: Do you agree with Justice Veasey's view of the persuasive counselor being proactive?

Casey: Today's counselor must be proactive in every way. If you are reactive, it usually means you have missed the bus.

I believe that we have a responsibility to be part of the client's team. That requires an understanding of the client's business, its management, and its goals. Responsive and timely advice is also an absolute necessity in today's business climate, and that includes staying abreast of all areas of law that have an impact on the client and its business. Identifying issues - and identifying them early - has become the responsibility of both outside counsel and general counsel. Counsel need to be on top of their game every day.

Please email the interviewee at wcasey@daypitney.com with questions about this interview.