Getting the most from your outside counsel

Getting the most from your outside counsel can make a big difference to your budget, as well as your effectiveness and success as a key member of your company’s legal staff and as an advisor to the business operations.
If the relationship with your external attorneys is managed well, their services can provide essential expert guidance, leverage your time, and free you to provide the critical services your company requires.
Below are suggestions on how to maximize the value of services provided by outside counsel.

Engagement

A good relationship starts at the beginning, so the ground rules should be set out then. Areas to clarify include billing rates and practices, reporting responsibilities, and any issues regarding real or potential conflicts of interest. You may want specific attorneys identified whom you expect to be key service providers and to develop a working knowledge of the particular business considerations and needs of your company.
Be sure you know the rates and rate structure of outside counsel and make clear that you expect to be apprised prior to any changes in rates. A primary contact attorney at the firm should be identified. Key issues and requirements should be addressed in the engagement letter/agreement.

Assignments

Assigning work in a clear and effective manner to outside counsel is perhaps the most important step to ensure that you receive advice that is on-point and valuable. If the services you require involve a broad or complex issue or project, such as an acquisition or a major litigation, you may need a team of outside lawyers and an equally comprehensive and complex plan to coordinate the significant and sustained work to be provided by your outside attorneys.
For certain situations, such as major litigation, you may want a full budget prepared with at least a high level estimate of the work and cost involved. This will prepare the business team for the anticipated expenses and for the potential demands on company resources, including their time and yours.
Regarding demands on your time, when a major matter is at issue, you may have no choice but to commit a significant amount of time and energy to managing the matter. Where possible, however, the amount of your time on a matter may be minimized by spelling out the role and responsibilities of the external counsel and clarifying what you need to be directly involved with or what you only need to be apprised about.
In other situations, however, outside counsel is best utilized in a more narrowly focused manner for their specific knowledge and expertise. For this type of assignment, it is critical to request the services from the correct attorney with the relevant knowledge and experience – and be specific about exactly what is the question or issue on which you want an answer or guidance. Don’t hesitate to put a time limit on the number of hours that outside counsel should spend on formulating and preparing the answer or guidance to you.
If the project is taking too long, you probably asked the wrong attorney. Be clear about deadlines as well. Guidance provided too late is of no value, no matter how insightful or on-point it may be.

Work product

You should be specific about how you expect to receive the answer or guidance. Often, a simple verbal report will suffice. You may want to have the attorney provide you with a high-level summary, or you may want to schedule a meeting of the relevant business team and have your outside attorney provide the advice directly to that group.
You might also request a verbal preliminary report before a significant amount of research is undertaken. This can help you to determine whether the research is likely to be helpful once completed, or whether the focus of the research needs to be refined or changed.
Another approach is to have the attorney prepare a brief summary, or a set of bullet points, in an e-mail or other written format. If concise and on-point, you may elect to provide it directly to the business team that you are advising on the matter, or it can form the basis for your analysis on that issue in a communication from you to your business team. An answer succinctly prepared by the attorney also can help you decide whether a more formalized memo is appropriate.
Be sure to tell the attorney who is the audience for the advice. If the ultimate recipient of the guidance will be the CEO of your company, for example, it should be written so that you do not have to completely revise it before showing it to the CEO.

Feedback

If you are happy with the work product, tell your outside counsel. If you are not, tell them that as well – and explain why you are not happy. The best work will occur when communication is good, and when inside and outside counsel know and understand each other’s needs and expectations.

Peter Markman is associate general counsel at Progress Software Corp., where he provides legal services in support of the business operations of the company. Peter is a NECCA Board member and former treasurer of the organization. He can be reached at 781.280.4891 and at [email protected].