Regardless of the inherent differences in the nature of their respective industries, revenue models, geographic locations, market share or myriad of other characteristics, most businesses will face at least one common legal challenge—the consideration of whether, when and how to hire outside legal counsel. Smaller companies may not have the resources or desire to retain their own in-house counsel. A large conglomerate could be faced with more specialized legal needs than its in-house staff can handle effectively. But, no matter the circumstances, there are some universal best practices that all companies can and should take into consideration when it comes to engaging outside counsel.
Hire the right counsel for the job.
Just like an individual should not seek medical treatment from his or her accountant, companies should understand that not all lawyers can handle all matters, and even lawyers who broadly market themselves as “litigators” or “corporate” lawyers often have specific and specialized niche areas of practice. Determining what your potential outside lawyer does best, and then leveraging it your advantage, is the key to starting off on the right foot in any outside counsel relationship.
Set specific guidelines.
A company should never engage outside counsel prior to holding extensive discussions with that attorney regarding fees, cost estimates, budgeting and staffing and, most importantly, the scope and goals of the representation. Insist on a written engagement letter clarifying and establishing the key points of consideration and defining duties and obligations, just as you would before entering into any business deal. The best time for clearing up misunderstandings is before they ever happen. Be sure to discuss accountability and reporting requirements, as well as invoicing and billing procedures. Ask to meet or speak with the law firm’s billing coordinator or office manager so that you understand how the law firm normally operates and its expectations for payment of its services.
Implement an effective framework for managing the project.
Although you may have a written engagement letter that defines the scope of the representation you will receive from your outside counsel, there typically are going to be changes along the way as unforeseen circumstances arise. In addition, even in one of the rare occasions when there will be no changes to the project’s scope, you will want to have a structure in place for keeping abreast of developments and maintaining an active line of communication with outside counsel. Some companies employ a mandatory written reporting system whereby outside counsel updates budget line items, to-do tasks, etc. on a monthly or quarterly basis. In lieu thereof, regularly scheduled telephone conferences, email correspondence and personal meetings, when possible, all can serve the same function to keep you well informed in real time of how your legal dollar is being spent. Be sure to review invoices and billing narratives in a timely fashion; and schedule meetings or calls to discuss the same as soon as possible to avoid unnecessary ongoing challenges.
Plan for terminating the relationship.
There is an old expression that you should never buy a house without thinking about how you can sell it later. The same concept is true for employing outside counsel—think about the representation exit process in advance. The most likely place to cover the eventualities of termination of representation are in the engagement letter. Understanding both your and the outside attorney’s rights to terminate the engagement, as well as the attendant obligations for the same, are necessary to defining the total scope of engagement. Hopefully, you will be engaging your outside counsel for the entire time needed to resolve your legal issues successfully. But, if legal performance is lagging and/or expenses are increasing at unacceptable rates, know and understand what rights you to have to change counsel. Once an engagement is completed, whether it’s an early termination by you (or the lawyer), or your outside counsel successfully has accomplished your goals, ask for a file closing letter and final invoice (if your attorney does not provide you with one or both promptly). This formal step severs the attorney-client relationship and should bring to a head any remaining invoice or expense issues.
Analyze the outcome of matters.
After you have gained perspective on the process, take some time formally to compare the outcome(s) achieved to the original goal/scope of the engagement. Consider doing a formal cost-benefit analysis. Even when you are fortunate enough to obtain the precise result desired for the exact amount budgeted, there are always lessons to be learned and areas in which you can improve the efficiency and economic rationality of your model for hiring and retaining additional outside counsel. Consider conducting an “exit interview” with the outside attorney to find out what worked or did not work from their perspective.
By now, hopefully, you have noticed that the most basic element in all phases of successfully engaging and using outside counsel is effective communication. Understanding and communicating expectations on both sides gives a business the foundation to learn of and act quickly on changes in circumstance. Establishing an honest and open dialogue with your counsel will encourage fluidity and turn reactive responses into proactive efforts. If a company and outside counsel commit to an effective communication process at the outset of the initial engagement, they greatly increase the chances for a successful and satisfying long-term relationship–no matter what legal challenges they may be facing together.
Stephen M. Parham is the managing partner with the law firm Bloom Parham in Atlanta. He counsels clients and tries cases in the fields of commercial business, construction and tort litigation.