In many robust organizations, the ultimate decision to retain outside counsel does not rest with the in-house team. We can make recommendations to our executives, and even beseech them to take our advice, but the ultimate authority to bring in outside counsel often rests with our CEO or CFO. To get them agree to bring in more attorneys is no small feat, nor is it a fun ask for the in-house counsel to have to make.
Generally, I first have to explain to said executive why, despite being a licensed attorney myself, I feel the need to spend the company’s money to bring in someone who, in the executive’s mind, is just like me. Then I often have to justify my own work on whatever the issue may be to demonstrate I truly have reached an impasse in my time or resources before they agree to turn on the billable-hour spigot. This is not to say I have a bad relationship with my executives or they do not trust my counsel, but more so that I need to come up with a compelling business case for bringing in expensive outside assistance.
Which means that prior to this in-house reaching out for help, the issue and decision has been vetted at the highest levels. So even if it’s an unfair expectation, we expect outside counsel to come in on the first day and prove we made the right decision through your adding value or a new perspective from the start. Simply restating the obvious or chastising us for not bringing you in earlier will get us off to a rocky — and from our perspective, wastefully expensive — start.
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As for whose representation we ultimately retain, unless it is a highly technical and specialized matter where we need to shop firms, your business development efforts usually win the day as we commonly go with whom we know and have built a rapport. And from what I have experienced, business development is a subtle art.
We were once contacted by a rather respectable firm in town offering their assistance on a case they noticed in which we had been named as a defendant. They were clearly monitoring the online case registry and thought this was their opportunity to connect with our organization. From their email, it was also clear they had read the plaintiff’s complaint, and they dedicated a couple of paragraphs of their email to the particular expertise they had in the area of law being raised and how they were certain they could guide us through this particular case.
On its face, this was all well and good, and a fine attempt at business development. However, the plaintiff’s complaint was not only a textbook case of the reason the glorious 12(b)(6) motion exists, it was rife with spelling errors and had been filed by a less than reputable local counsel. Taken together, my colleagues and I were left with little other choice than to feel a bit insulted this firm did not think we were capable of dispatching of the complaint on our own and that we would need them to “guide” us through it.
Yes, as a corporate legal department we may lack many of the resources a larger firm has available to its counsel, but at the end of the day, we still graduated from law school and have demonstrated at least minimal competence to practice, so maybe pass on the offer to help on the obvious 12(b)(6) candidate.
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From our perspective, choosing to retain outside counsel is a pure business decision. Again, setting aside the occasional highly technical suit, as in-house we have seen it all, and maybe more than you. If we are reaching out to bring you on board, it’s probably because we made the decision it is in our company’s interest for our time to be spent elsewhere, not necessarily because we believe your firm can do a better job.
So when you come on board, treat us like another one of your colleagues. Respect our time and our knowledge, add value from the start, and you can bet we will keep you in mind for future cases. Blatantly shop for an easy business win we can handle internally, or treat us as though we should be thankful for your counsel, and you can bet you will not make it to our CEO’s desk for consideration.
Stephen R. Williams is in-house counsel with a multi-facility hospital network in the Midwest. His column focuses on a little talked about area of the in-house life, management. You can reach Stephen at [email protected].