In Part 1 of the risk series, we said that the perspective on risk depends on who you ask, and to prove it we now pivot from the client to the law firm.

To say that outside counsel are naturally risk averse is like saying deer are naturally shy. In the case of outside counsel, it’s not surprising. There isn’t a lawyer in private practice who hasn’t had caution drummed into them from every professor, then every partner, for their entire career. Read everything. Use caveats. Don’t commit.

That’s all fine and dandy, but it’s not very lean. This over-cautious, defensive approach to the practice of law prioritizes the firm’s fear of getting sued over the client’s need for relevant, actionable advice. Outside counsel understand this tension, and try to find a balance, but if in doubt, protect the firm. The “cover your ass” (or CYA) memo has been around forever and is alive and well.

There is a better way, and it starts with mindset. Try to think of the client as a business partner, not a potential predator. As we say in Lean Adviser, outside counsel exist to help clients solve problems. At times this will involve some leadership. Don’t be afraid of that. Instead of looking inwards at the potential risks for the firm, look outwards at the risks attendant to the project from the client’s standpoint. Try to understand their risk appetite, advise through that prism and help the client navigate those risks.

When this came up at ALM’s GC Midwest Conference in Chicago, multiple panelists complained about how law firms slow down projects, and how they need to embrace calculated risks. If your review leads to some options, set them out clearly, do some risk analysis for the client and make a recommendation. If you need to add some CYA text, that’s fine, the GC will understand.

Bottom line: The in-house legal function has a tough enough time being seen as what Alex Su calls the “dept. of no” rather than the “dept. of go.” Your job is to be a business partner, help the GC protect the company and still move ideas forward.

Can you bill for all this? No, not always. Again, it comes down to mindset. Look past the numbers and even past the specific matter at hand. Look at developing the relationship.