Last year, the Litigation & Investigations team instituted its first ever secondment program when Veronica Ip, an Associate General Counsel, went on parental leave. We onboarded Kate Driscoll, an Of Counsel at the law firm Morrison Foerster, to take over Veronica’s role while she was out. The program was very successful and served as a great example of how a deep and thoughtful collaboration can unlock mutually beneficial results for in-house legal teams and their outside counsel. We thought it would be helpful to share our learnings from this experience and provide a blueprint that other in-house legal teams considering secondments might follow in the future.
What is a secondment and is it right for our team?
A secondment refers to the temporary assignment of an employee to another organization. A legal secondment typically involves an arrangement in which a lawyer, usually from an outside law firm, joins an in-house legal team. In-house legal teams use secondments for all sorts of reasons, including to relieve shortages in resources, deepen relationships with outside counsel or provide expertise in particular areas of law. In our case, a secondment was put in place to manage Veronica’s heavy docket of litigation matters while she took time off during her parental leave.
Secondments typically last for less than a year but can be longer, depending on the circumstances. There are a number of considerations that should be taken into account in determining whether a secondment is appropriate. A secondment program can be helpful to an in-house legal team for all the reasons described above, but typically a company has to budget for such resources so any benefits need to be weighed against the cost. From outside counsel’s perspective, providing a secondee is an investment. A secondment is disruptive to a law firm that will lose an employee for a period of time, which will also be associated with a potential loss of revenue given that secondments are usually offered at discounted rates from a law firm’s typical billable rate. On the other hand, a secondment offers outside counsel the opportunity to better understand and deepen its relationship with a client to better serve them in the future. Secondees benefit from being able look “under the hood” at a company and acquire valuable practical experience that spurs professional development and growth. A secondment also affords an opportunity for someone curious about working in-house to “test the waters” without committing to an in-house role.
A well-thought-out secondment program can present a win-win opportunity for both the in-house legal team taking on additional talent resources as well as a secondee and the outside law firm to which the secondee belongs. In our case, a secondment program clearly made sense for what our relatively small Litigation & Investigations team needed at the time – an extra set of experienced hands for a period of several months, from an outside law firm that knows the company well and could hit the ground running.
Who is the right fit?
Usually an in-house legal team in search of a secondee will look to its network of outside counsel to find someone with the right profile. In our experience, integrating an outside attorney from a law firm that is familiar with the company’s polices and processes and has a general understanding of how the company operates day to day will often facilitate a smooth transition into the in-house legal team. That said, it may be necessary for an in-house legal team to search beyond its immediate network of outside counsel, and in those situations it may take a bit more training to fully prepare the secondee for the role.
The seniority of the secondee should also be tailored to the company’s need. In some cases, an attorney like Kate with strong judgment honed from years of practice and experience may be needed to fill an in-house role like Veronica’s that involves managing multiple complex litigation matters. This may not always be the case, and in some situations experience may be less important than having expertise in a particular area of law.
What are some key considerations in drafting the secondment agreement?
Once both in-house legal and outside counsel have decided that a secondment makes sense, the parties should draft a secondment agreement that will govern the relationship between the in-house legal team, the secondee and the outside law firm that is sponsoring the secondee. Key provisions that need to be considered in a secondment agreement include (i) length of secondment; (ii) costs, if any, to be paid by the company for the secondment and (iii) conflicts considerations.
When determining the length of a secondment, time needed to train and integrate the secondee should be taken into account. For example, Kate’s secondment lasted approximately six months even though Veronica took off a little over four months for her leave. The short period of overlap before Veronica’s leave enabled Kate to shadow her and provide real-time training on how to handle the various matters for which Veronica was responsible. There was also a short period of overlap after Veronica returned, which allowed for a smooth handoff of matters that Kate had taken on in Veronica’s absence.
There is no formula that dictates how to price a secondment and some variability in how in-house legal teams and outside counsel determine the cost. Ultimately, the cost structure of the secondment will be a matter of negotiation between the outside law firm and the in-house legal team.
Finally, all parties should be attuned to the potential for conflicts to arise over the course of the secondment. For example, it is possible that during the secondment the secondee may be asked to work on a litigation involving a party that is adverse to the company but also happens to be a client of the law firm to which the secondee belongs. The secondment agreement should clarify the steps that the parties should take to clear potential conflicts and obtain waivers as appropriate.
How should integration of the secondee occur?
Once a secondment agreement has been finalized, the parties should plan the secondee’s integration and transition to the company. The integration should include training on the company’s in-house legal department and business lines, as well as skills unique to the in-house role that aren’t typically part of the law firm training curriculum, such as, for example, communications management and policy drafting. In-house legal may want to offer advice to the secondee on how to reach out to internal employees to conduct interviews, how to communicate with board members and how to explain legal concepts or issues in layman terms. It’s also worth mentioning that compared to a secondee’s typical docket at a law firm, in-house legal may be responsible for managing many more matters than a secondee is used to. Providing pointers on how to manage multiple matters in parallel and keep those who need to know in the loop may be helpful. Finally, in-house legal should stress to their secondees the importance of offering clear direction to outside counsel and strategies to manage outside counsel effectively, efficiently and in manner that results in thoughtful work product that’s in line with a company’s overall legal strategy and cost containment.
In our case, because there was a period of overlap before Veronica went on leave, Veronica had the opportunity to show the ropes to Kate on all of the items above and ensure that Kate was fully up to speed by the time she needed to fully step into the role. Kate was flexible, adaptable, collaborative and able to pick up very quickly a different way of working. Kate’s dynamic with Morrison Foerster shifted, too, over the course of her secondment. Because she was interacting directly with the law firm from which she had been seconded (and was planning to return to) as well as other law firms, she needed to learn to collaborate with her colleagues in a new way—one that not only allowed her to perform her role as a client, but also preserved and elevated her relationships with her law firm colleagues. To ease the transition and act a sounding board, we suggested that Kate set up regular check-ins with someone from the Litigation & Investigations team on a regular basis. Establishing check-ins, especially during the early period of the secondment, are helpful to all parties as they provide opportunities for in-house legal to provide the secondee with feedback on performance and allow the secondee to course correct, if necessary, early on. They also provide space for the secondee to ask questions about navigating the company.
What makes a successful secondment program?
In our view, a successful secondment has three key ingredients: (i) a secondee who is the right fit for the role, (ii) preparation and (iii) open communication channels that enable the secondee to ask questions, voice concerns and receive feedback. The benefits of a successful secondment program extend beyond the duration of the program itself and can lead to continued collaboration outside the parameters of the typical law firm-client relationship, including through joint speaking and teaching opportunities, championship of public interest initiatives and thought leadership.
The authors wish to thank David Karp for his thought leadership on this topic.