From the New Lawyers Committee

RECOGNIZING THE SCOPE of your representation of a client is an essential skill for a new lawyer to learn (and for experienced lawyers to continue to practice). This is especially true when your client is a company that has in-house counsel. While there is no secret method for guaranteeing successful partnering with in-house counsel, the following are some concepts outside counsel should consider in order to nurture that relationship.

Define the Roles

You must remember that in-house counsel also are active practitioners of the law. As such, the role of in-house counsel goes beyond merely coordinating outside counsel’s work. Because in-house counsel know the law (or know where to find it) and can advise our clients on it, outside counsel may be retained simply as support for the in-house legal function. Sometimes there is a need for a partner with whom to co-draft, co-negotiate, or co-litigate. While there are times when in-house counsel will not have expertise in a particular area, filling a knowledge gap is not the only reason that outside counsel is retained. Accordingly, as outside counsel you should be comfortable with being co-counsel on a matter, and not simply the lawyer to the client.

Open & Effective Lines of Communication

As lawyers to the company, in-house counsel are responsible for all aspects of a company’s legal matters, and are expected to be up-to-date on such matters. Accordingly, outside counsel should report directly to in-house counsel, and keep in-house counsel informed so that we may keep the company informed. Provide copies of all correspondence, as well as all written work product (case evaluations, draft interrogatories, status reports, discovery requests, etc.). Rest assured that we will read it and work with you on the issues that you raise.

Approvals

Before you take any action, discuss it with, and seek approval from, in-house counsel. In-house are familiar with the company’s goals and strategies. Before you take any action, whether it be sending comments on an agreement or serving interrogatories on opposing counsel, in-house counsel will want to know about it and will want to make sure that the action fits with the plan not only for the matter at hand, but also for the company’s overall goals, strategies and reputation.

Prevailing vs. Dispute Resolution

When faced with an issue, the goal of in-house counsel may be to focus simply on dispute resolution and to minimize legal exposure, rather than aiming to prevail on the matter. This includes an obligation to rein in the overall costs of outside counsel fees, settlement and litigation. Spending $200,000 to litigate a matter that could have been settled for $50,000 may allow our team to claim that we successfully defended a claim, but such an outcome will not necessarily be the best for the company. A pyrrhic victory to the client is most often a victory in name only.

Budgets

On the issue of money, an estimated budget of your resources and their costs is helpful. When preparing a budget, keep in mind that if you are working with in-house counsel, then the company is already paying for legal representation. What you can offer will undoubtedly be counterbalanced by the cost of your services and whether they are justifiable. It is assumed that the unknown (and unbudgeted) may arise during the course of your representation. If and when this occurs, in-house will work with you to address such matters and the additional costs associated with them. Absent any change in circumstances, however, you should expect to work within the budget. After all, your budget directly affects our budgets, which must be balanced in order to set aside money to be able to pay you for your services.

Outside Counsel as a Valued Partner

Finally, it is important to remember that, although the in-house counsel may dictate the course of your representation, act as the intermediary between you the client, make the final decisions, and hold you to a budget, as outside counsel you should not feel as if your opinions and views are devalued in any way. The fact that you were retained is an acknowledgement of your knowledge and abilities and their potential benefit to the client.

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