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Is Your Outside Counsel Your Ally?


April 29, 2020

Read Time

5 minutes


Maintaining an effective relationship with your outside counsel is important. Even more so, in times of distress, you should feel that you have a true partnership and ally. There are several key questions that business leaders can ask to ensure they are maximizing this relationship.

  1. Are they being empathetic and proactive? Has your outside counsel made an effort to understand the challenges you are facing? Have they reached out at all, other than to confirm you will be paying the bills? Have they proactively offered to help you through those challenges, or asked what you need right now? In times of crisis, your outside counsel should be there to support you, personally and professionally.
  2. Are they taking advantage of you? If you are a long-term client and have always paid timely, now is not the time for your lawyers to suddenly require a retainer for everyday matters or to put you into potentially awkward situations regarding conflict waivers without thinking. Allies do not take advantage when times are tough, and your law firm shouldn’t either.
  3. Are they keeping you informed? Do you know what impact the coronavirus pandemic and state-wide shutdowns have on your deals or lawsuits? Have you been advised about court closures or deal delays status? Are they helping you come up with strategies to address impediments to current matters to get you as close to your expected outcome as possible under the circumstances? Court closures are not an excuse to stop working on a lawsuit, and deal closings can still happen remotely if lawyers leverage good relationships with title companies. They should be keeping you informed about what you can do now, and what you should be thinking about next.
  4. Are they wasting your time? Even in the best circumstances, business leaders don’t have an abundance of free time, and in the current climate, that is especially true. If your outside counsel expects you to get crucial information in the form of drawn-out webinars or lengthy articles, they do not understand what you are going through right now. You need key information, you need it fast, and you need them to understand that in their communications.
  5. Are they sharing the financial burden? The country is facing an unprecedented financial crisis. Now is the time for firms to share in your financial strain, and take a hit with you. Your advisors are your problem solvers, and they should get creative to address the current crisis. If you send significant work to a particular firm, are having trouble paying the bills, and they have not accommodated you with temporary rate decreases, alternative fee arrangements, or extended repayment terms when you genuinely need it, you should have a serious discussion with your outside counsel.
  6. Are they focused on delivering value? Your law firm’s work should be tailored to achieve your goals, and that is especially true in uncertain times when cash is scarce. While you may be prepared to run headlong into a lawsuit, which would be big fees for your outside counsel, that may not always be the prudent decision. If you have no way to recover attorneys’ fees and it will take years to reach a resolution, it may be a better value for you for your lawyer to leverage a settlement quickly and get you some money now. Or if previously planned work is not essential right now and you’re better off focusing on your money-making deals, your law firm should be inquiring about your priorities and how to achieve them. Now may be the time push down work without sacrificing quality, if that is what your current budget allows. Your outside counsel should be asking you about your goals and coming up with creative ways to deliver.
  7. Are they reviewing their bills? You don’t have time to go through bills with a fine-tooth comb right now, but given the financial constraints caused by the coronavirus, your budget is top of mind. That means every line item gets scrutinized, and your outside counsel should be sensitive to that. If it is clear that they are sending out bills without reviewing them in detail for errors, inconsistencies, or other irregularities, they are making things harder for you, not easier. Unnecessary expenses should be written off. Office conferences should be billed only if you allow them and only if they are demonstrably accretive. The bills should be consistent with past bills and should not suddenly skyrocket unless the firm took on a new project or did authorized work to address the coronavirus pandemic or other damage control.  When your law firm sends you a bill riddled with errors or unexpected charges, at best, it shows a disregard for the difficulties you are enduring right now. At worst, the law firm is protecting its bottom line at the expense of yours.
  8. Are they performing under pressure? Now is the time for your outside counsel to show how well they can perform under pressure. Are they exceeding expectations, or are you getting a lot of excuses? Are they working hard on your matters and committing to delivering outstanding results? Are they overcoming the challenges of working remotely? If your law firms are incapable of rising to the challenge, that could be a bad sign for uncertain times to come.

If any of this strikes a chord with you, you should give serious thought to whether your outside counsel is genuinely your ally. Be prepared to state your expectations and know when to ask for more.

Filed under: Litigation

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