Three Rules for Avoiding Problems with Outside Counsel.
While your outside counsel may have excelled at everything they have done in life up to representing your company, this does not ensure success in being responsive to your needs. In that regard, here are three rules you might want to communicate to them early on, in order to avoid problems down the road.
Rule 1: Think like the client
Your outside counsel needs to understand your interests. For example, what is the budget for the case or assignment? When do you need it? If the work product is not for you, but for another ultimate audience, how much lead time will you need to review it given your numerous other commitments? Are you looking for a quick informal answer or a magnum opus? Is the advice practical and feasible in the real world?
Rule 2: Communication
The best attorneys are excellent communicators. That is the simple fact. Communicating well does not mean communicating a lot. It means communicating effectively. You should expect that your outside counsel has taken the time to organize their thoughts and presentations before communicating with you. If they need facts from you or your business colleagues, your outside counsel should be prepared to explain exactly what they need and why it is relevant. This may be news to outside counsel, but the company’s employees are not there to satisfy counsel’s fanciful legal whims. They have real work to do.
Expect complete honesty. Your outside counsel must understand that it is imperative that they are honest and open in all of their communications with you. While it may be intimidating to tell a client about a bad outcome or confess a mistake, they must do it. You are trusting your outside counsel with your company’s most sensitive legal problems, and you must be able to trust them. No one is perfect, and bad results or mistakes often can be repaired or minimized. But trust, once lost, is exceedingly difficult to regain. You should expect that same degree of ethical communication when your outside counsel is communicating as your legal representative with third parties, such as a court or governmental entity.
Counsel should not take on more than they can responsibly handle. Effective communication involves a realistic sense of what counsel can handle. They should not promise timelines for completion that they should know are unrealistic, and they must never claim expertise in subjects that they do not have. Your counsel ought to appreciate they have more to lose by delivering a subpar product because they overextended themselves than by giving you an honest appraisal of their capacity.
Rule 3: Excellence and Efficiency
Always expect your counsel to deliver their best work product. Never compromise on this. You should expect that your outside counsel has thoroughly reviewed the product before delivering it to you. This is true regardless of the scope of the assignment.
Every minute that your counsel bills should add value. Your counsel must understand that their time will be reviewed by you, and possibly by other persons within your company. The billed time should be proportional to the scope and complexity of the project. If your counsel is unclear as to what you want, they should be instructed to obtain clarification early on. The bottom line: Every minute your counsel spend on every matter should add value to the project, and it is their responsibility to review the bills before they are sent to you to ensure that the billed time is appropriate and proportionate to the project scope.
Gregory Pimstone is a healthcare litigation partner in the Los Angeles office of Manatt.