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Many outside attorneys act as de facto GCs for companies that do not have legal departments. So, when an outside counsel works with a company that does have a GC, the outside counsel needs to recognize the different needs that he or she will have to meet and implement a different approach to providing legal services. (The most important requirement of an outside counsel is to recognize that the general counsel is a client with many hats and responsibilities.) When outside counsel acts as a de facto GC, he or she gets the information from a variety of sources at the company; when working with a GC, the in-house attorney is the information gatekeeper between the outside counsel and the company’s management. It is imperative that the flow of information not be constricted so as to impede the outside counsel’s ability to provide the legal services the company expects and pays for. If this happens, it is incumbent upon outside and inside counsel to communicate more often and more efficiently immediately. In addition, the outside counsel must understand the goals and objectives of the company decision makers who are not attorneys. Outside counsel need to be in a position to consult with management (which necessarily includes the GC). This only can be achieved by attending company meetings with decision makers. Outside counsel need to know their place. Each company has a unique way of doing things. Some companies have in-house attorneys who are highly specialized in discrete areas of the law; other companies may not have their expertise and, therefore, rely on the expertise of outside firms. Knowing the structure of the corporation can give outside counsel the ability to make his or her service better fit the demands of the client. INS AND OUTS A complete understanding of the factors that influence the business will make the outside lawyer better able to anticipate roadblocks and find answers to difficult questions that make the most sense for the corporation. If making acquisitions in a regulated industry, for example, knowing the ins and outs of the regulatory process will influence the progress of the transaction. Similarly, if the outside counsel knows that he or she is handling an acquisition in which the client is purchasing a business primarily for its core technologies, then the outside counsel can allocate more resources from his or her firm’s IP group to help with, say, trademarks and patents. On the other hand, if the main emphasis is to gain key personnel, then the human resources and Employment Retirement Income Security Act personnel must become involved to help create a smooth transition and focus on employment contracts, stock options or perhaps some creative incentives. Each company has a different attitude about and approach to business. Some have a vertical hierarchy; others are more horizontal in management structure. Outside counsel can’t take a one-size-fits-all approach. Outside counsel must tailor his or her service to the client. Outside counsel must become part of the team that the GC uses in completing a project. Often the outside counsel is the support and not the lead. But it’s possible to be vice versa. The role should be clearly identified with each project. It may be best for the outside counsel to lead when he or she has far more expertise than the inside counsel in particular areas. If the opposite is true, the outside counsel must recognize this and take on the support role. An outside lawyer keeps a client happy by meeting expectations, but those expectations must be clearly established, and that’s why communication is imperative. If the outside lawyer is a member of the project team and has the same understanding as everyone else on the team, then the outside lawyer can manage the project to meet the mutually understood expectations. It’s up to the outside lawyer to ask the right questions to avoid misunderstanding, but it’s up to the GC as information gatekeeper to allow those questions to be asked and answered. None of this takes away from the vital role of the GC, who is ultimately responsible and must answer to management for the success or failure of a project. Timothy R. Brown is a senior partner in the business transactions section of Thompson & Knight in Houston.

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