Tuesday, December 6, 2016

Outside Counsel Guidelines -- Keeping up on the Conversation

Always important to listen to the client side of the equation. Here is a recent article from Sterling Miller, former General Counsel for Sabre Corporation (and Travelocity prior to that): "Ten Things: Preparing Outside Counsel Guidelines – The Keys" --
  • "Managing your relationship with outside counsel can be challenging. The good ones work hard to make it easy but, even so, there are times when you and your outside lawyers are not on the same page... There are many facets of your relationship with outside counsel that you need to think about and constantly manage. One way to do this is through an engagement letter. While this is a good device to manage some aspects of a particular project, the better path is to create and maintain a set of 'Outside Counsel Guidelines' — a standing set of rules for how you and your outside counsel will interact on key issues, especially on billing."
  • "1. Be reasonable. I have been on both sides of the aisle as General Counsel and as outside counsel. One thing I always tried to ensure was that, as in-house counsel, we were reasonable in what we included in our outside counsel guidelines and in the manner in which we interacted with our outside counsel, especially over billing and invoicing. My assumption was that outside counsel wanted to do a good job, wanted to comply with our guidelines, and wanted to ensure that we felt that we got value for the money we spent with them."
  • "7. Conflicts. As firms consolidate, conflicts become a real issue. One thing I have seen larger firms try to obtain is a blanket waiver of conflicts (sometimes called “advance conflicts waivers”). I would say no to this, and set out your policy on this in your guidelines. Moreover, you should set out that you expect the firm to advise you before undertaking any representation of a client who’s interests are generally adverse to the company, for example a competitor. It may not be an actual “conflict” under the ethical rules, but it’s fair to ask outside counsel to advise you of such representations."
  • "Additionally, if your law firm for some reason needs to withdraw from a representation of your company (either voluntarily or via court order) because of a conflict, you should require that the firm pick up the cost of transferring the matter to new counsel and for getting new counsel up to speed on the matter and if for some reason there is work product that can no longer be used due to the conflict, that the firm refund you the fees and costs associated with that work product."
  • "8. Guidelines trump retention letter. Most retention letters are prepared by outside counsel, which is fine. However, when you get the retention letter don’t just skim over it and sign it as is (even if they send it to you as a signed pdf). Take the time to read through it and ensure that a) it accurately reflects your understanding of how the engagement will work and any special terms or pricing you agreed to, and b) that there is nothing in the retention letter that conflicts with your Outside Counsel Guidelines. If either is not the way you want, change it – do not be afraid to mark up the retention letter. One thing I frequently did (especially if most of the letter was fine) was simply hand-write by my signature “Nothing in this letter trumps the [Company Name] Outside Counsel Guidelines and in the event of a conflict, the Outside Counsel Guidelines shall govern.” On occasion, I am glad I wrote this into the engagement letter."
  • "9. Guidelines do not replace a conversation with outside counsel. You can write the most elaborate Outside Counsel Guidelines, covering everything from A to Z, but in my experience your guidelines do not replace the one thing that is most important – regular conversations with your outside counsel about the relationship, especially around billing and costs. It may feel a bit scary and even awkward but nothing will pay back dividends like an honest conversation with your outside counsel about the bills."
  • "10. Review annually. If you are a regular reader of my blog you know that one thing I preach consistently is that you cannot prepare policies and guidelines and then just leave them on the shelf until “something happens.” You need to schedule regular reviews and you need to create the right team to help with that review – potentially even folks outside the legal department... Outside Counsel Guidelines can be a very helpful tool to help manage your relationships with outside counsel. Don’t be afraid to rewrite them from scratch every few years – the legal profession is changing way too fast to just sit back and assume what you already have is good enough. And, there are many other topics you can/should cover in your guidelines, e.g., confidentiality, media relations, “up-the-ladder” reporting, dispute resolution."

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