Best Practices for Outside Counsel
Lawyers in private practice who represent corporate clients as outside counsel have regular dealings with their clients’ in-house legal teams. Outside counsel often work at the direction of in-house counsel and report directly to them on the status and developments of a case. The following practice tips from experienced lawyers who represent organizations as outside counsel highlight some of the key challenges—and opportunities—that exist when representing a client who also happens to be a discerning lawyer.
Keep in-house counsel informed. Every client, and every in-house counsel, will have different preferences regarding communications. It is the responsibility of outside counsel to learn what the client’s communications requirements and preferences are. But err on the side of communicating more detail rather than less until directed otherwise. Copy in-house counsel on all communications with others in the organization, with opposing counsel, and on pleadings. In-house counsel want, and have the right, to be involved in making critical decisions about the case as it progresses. To do so effectively, they need to know what’s going on.
Pay attention to client-specific requirements. Many in-house legal departments have specific billing standards and other requirements for reporting periodic assessments or written plans and budgets. It is the responsibility of outside counsel to be aware of in-house counsel’s requirements when handling a matter. This responsiveness is particularly important when a new development in a case affects your prior strategy and risk analysis.
Be candid. From the outset of your engagement with in-house counsel, be honest and upfront about the strengths and weaknesses of the case and don’t blame bad outcomes on the judge or opposing counsel or other factors outside your control. In-house counsel can have reasonable expectations, but it is important to recognize key challenges with a case from the outset so that in-house counsel can help devise the best possible strategy and not be caught off guard when things don’t turn out as planned.
Be cost conscious. Candor is also important when it comes to the budget. Be realistic about your budget, if you’re asked to provide one, at the outset of your engagement. Even if your client’s outside counsel policies and billing guidelines don’t require a budget, in appropriate cases, ask in-house counsel if they want one. Don’t offer a low-ball estimate just to appeal to the client but provide a reasonable range and offer suggestions for minimizing expenses wherever possible. When unanticipated expenses arise, don’t just exceed the budget without explanation. Be proactive and tell in-house counsel why initial budget parameters were not right. If you expect to take certain actions in a case that will cost a lot of money, let in-house counsel know in advance and get their approval.
Make sure your bills are meaningful. When preparing time entries for your bills to in-house counsel, make sure to explain what work you’ve done and why it’s important to the case. Take the time to review your billing statements carefully, and make sure they conform to the billing guidelines provided by in-house counsel. Be willing to discuss billing issues with in-house counsel when they arise and be willing to cut time when appropriate. For example, writing off time may be suitable if you followed the wrong lead when researching a particular legal question and a different approach would have been more efficient, or if you get an associate involved in a case to participate in a way that enhances the associate’s professional development but does not necessarily require two billing attorneys. Don’t assume that in-house counsel are agreeable to anyone in your law firm working on a particular matter. Even when billing guidelines do not require advance approval for each timekeeper working on the matter, consult with in-house counsel whenever additional staff is necessary and explain the added benefit to the case.
Take time to explain. Don’t just send (or have your assistant send) copies of pleadings, letters, discovery requests, orders, etc. to in-house counsel without explaining the significance of the document to the case. Tell in-house counsel how the document affects the case, what challenges or issues it raises, and what opportunities it presents.
Be responsive. Answer emails and phone messages from in-house counsel within a reasonable amount of time. Work with other people in your law firm that you trust to be able to field phone calls from in-house counsel when you know you won’t be readily available. Although outside counsel work on many different matters at any given time, it’s important to demonstrate that you care about the problems your client and its in-house counsel are facing.
Ask for feedback. Most in-house counsel appreciate a “client assessment” meeting, where in-house counsel, as your client, have an opportunity to provide feedback to you about the services you’ve provided. For larger cases or clients for whom your law firm handles several matters, offering to visit for a client assessment (at your law firm’s expense) is always a good idea. If an in-person visit is not possible, send written communications or ask for an assessment meeting by telephone. It is important for outside counsel to show in-house counsel that their satisfaction with your services is a priority.
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