In-House Counsel

Outside Counsel: Work With Me, Not Against Me

Get with the Program. And the Program is simple: ACT LIKE AN ATTORNEY AND DON’T MAKE ME LOOK BAD.

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Back in the heyday of my misspent youth, sometime after I’d left Biglaw and definitely before I stopped measuring my in-house experience in months, I was asked to sit on a panel about general in-house topics, which included a softball question or two about working with outside counsel. Up until that point, I’d actually had limited interactions with outside counsel. There wasn’t much a company of our size with our legal department couldn’t do in-house. So I’d replied vaguely and politely about how important it was to be clear and concise with outside counsel so that your expectations were clear. Or some clap trap like that.

Then my respectably sized fish of a company started eating all the other fish in the pond. When it tired of feeding off the chubs and minnows, it made for the brackish waters and from there, the whole wide ocean where it morphed into one of those prehistoric megalodons that co-star in summer blockbusters with the likes of Jason Statham.

Overnight, my leviathan of a company had needs beyond what our legal department could provide. Because damn it, I’m not an international tax law expert, or particularly well-versed on the finer points of maritime law. Suddenly, I had nowhere to turn but to outside counsel.

I get it. I used to be outside counsel for companies that could afford me. And I do realize how things have changed. Even for a spastic behemoth like us, we don’t use the big-name Biglaws unless it’s bet-the-farm litigation. No one can justify those rates for everyday transactions. Not when your Finance department is a bunch of Big 4 ex-pats. Or is it 3 now? Ba-zing!

So, in this age of cost-cutting and zero-sum budgeting, you would think the outside counsel we do bring in for non-bet-the-farm litigation would get with the Program. And the Program is simple: ACT LIKE AN ATTORNEY AND DON’T MAKE ME LOOK BAD.

No, really. It’s that simple. And yet, for as many outside counsel I adore and keep at the top of my rotation, there seems to be an equal number of bad eggs out there. And it all boils down to one true thing: Don’t act like a business person.

I know. This encompasses so much, but can be distilled down into a few key points. First, don’t make me chase you. If you say in your email you’ll have comments back by this Friday, then I should have the draft by (wait for it) Friday. If come Monday morning, I’m the one that has to break radio silence and fend off the business partners I told would have their draft, I’m putting you on the shit list. Life happens, stuff comes up. But if for some reason you can’t make that deadline, let me know so I can manage the expectations of the wolves. You keep track of your time in six minute increments, I know you have better recall than that.

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Along those lines, do not sneak shit into my document. This is similar to when a business partner scrawls nonsense in the margin of a contract, draws some contradictory arrows, and signs that puppy. He or she has left me with an incomplete contract now up for interpretation. So it is with an outside counsel who writes in the slightly more dignified comment field in Word that he or she needs to do “additional investigation on this question” and leaves it at that. You’ve just left a pile of steaming crap in my draft. What am I supposed to do with this? Hint, the answer is not, “chase you until you have an answer or admit you forgot about it and it’s probably fine.” If you need to flag something you can’t resolve before you send the draft, do it in the cover email. Don’t leave me a nasty surprise in my document.

Follow directions. Particularly, when it comes to billing. Yes, I too hate our billing software. I completely support your theory it was designed by soulless millennials. I sometimes spend more time approving your invoice than I do reading that email guidance you gave me. But, like the tide, the software is inevitable. Please don’t try and skirt the process, or ask me to make an exception for you. Remember the Big 4 ex-pats? They’re all over these invoices and reports like flies on … garbage. I can’t move up your payment term. I can’t approve your block billing. Please just follow the directions in the outside counsel guidelines I gave you.

While I’m on the subject of following directions, memos are for law students and litigators. I’m a corporate monkey. When I see you’ve sent me a memo, I want to crawl under my desk. Maybe rock myself in the fetal position if I see citations. When I say, “just shoot me a few bullets in an email,” I really mean that — just shoot me a few bullets in an email. This is not bet-the-farm litigation. I just want some advice on independent contractor classification. I get that it’s messy, but sending me a memo is just going to make it worse. I can’t give that thing to HR. They’ll freak out. Maybe create a meme about it. I’m just going to have to rewrite what you sent me into bullets. So really, you’re making more work for both of us.

And finally, whatever you do, do not throw me under the bus. I repeat, do not throw me under the bus. I spend my life crawling out from under the bus. I expect to regularly eat pavement from my business partners, but I expect better from you. If we hop on a call with our team and you insinuate that you were unable to do something to your satisfaction because of a delay on my end, I’m going to call you on it. Particularly, if it’s something along the lines of, “I asked your counsel for it yesterday, but I’ve just received it this morning, so I’m unfortunately unprepared for this call.”

This is not a good look on you. I get it. You’re swamped, you’re frustrated that you sent an email out at 10 last night looking for information and that slovenly in-house counsel who doesn’t know her ass from her elbow when it comes to data privacy regulations in the EU, ignored your email until this morning. I get it.

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Maybe the answer is, I actually was right all those years ago on that panel, when I said the key to a successful partnership with an outside counsel is clear and concise communication and level setting of expectations. Maybe being more explicit up front as to how I expect us to work together is the way to go. And in any event, it should at least cut down on the amount of memos that cross my desk.

Kay Thrace (not her real name) is a harried in-house counsel at a well-known company that everyone loves to hate. When not scuffing dirt on the sacrosanct line between business and the law, Kay enjoys pub trivia domination and eradicating incorrect usage of the Oxford comma. You can contact her by email at KayThraceATL@gmail.com or follow her on Twitter @KayThrace.

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