By Gary F. Torrell
Valensi Rose, PLC
After serving as temporary in-house counsel (IHC) to a client in 1990, I published an article entitled “How to Work With In-House Counsel.” Since then, I have been general counsel at a publicly-owned financial institution and a privately-owned real estate company and developed the following guidelines based on my experience as both IHC and outside counsel. The guidelines may seem unremarkable, but following them will increase your chances of obtaining business from (and developing strong bonds with) IHC and their companies. As with most everything in the law, there are exceptions to every guideline below, and you must always tailor your service to the wants and needs of the particular client and matter.
1. Getting Retained. Most IHC (and their companies) already have a full compliment of outside counsel to contact for new matters. To break in with them, you need a hook to distinguish you and your law firm from other law firms soliciting IHC for business -- e.g. being referred to IHC, promoting specific lawyers (by name) at your law firm with necessary expertise, offering a fee discount, or some other incentive. Money is a huge incentive, but not at the expense of high quality services. As general counsel, I regularly retained lawyers with big-firm training who charged lower rates at their present (smaller) law firm. If your law firm’s regular hourly rates are low compared to national law firms or other lawyers with similar credentials, sell this feature. Consider offering a discount for the initial matter or for an initial time period, to give IHC an obvious reason to try you. Diversity can also be an asset: Advertise and promote the minority lawyers employed at your law firm – this may be an important criteria to IHC. If you simply ask for business because you provide quality lawyers, competitive rates and good service, chances are your solicitation will go in IHC’s round file.
2. Your First Matter. Congratulations – you’ve been retained! The next step is to ask for and review all of IHC’s policies and procedures (written and unwritten), and then share them within your law firm and follow them to the letter. The point is to recognize that IHC is in control of the relationship, so ask how and when IHC prefers you communicate with them and accommodate IHC’s preferences. Do not speak directly with others at the company without IHC’s permission (unless it’s an emergency). When permitted to communicate with others at the company, copy IHC on all written/electronic communications; it’s more than a courtesy, it keeps IHC where they should be—the number one spot.
3. Get Noticed For the Right Reasons. IHC knows the client, the goals in the matter, the budget concerns, the internal politics and the other important considerations. As outside counsel, you should talk less and listen more, especially on your first matter. Let IHC interrupt you and ask questions; they are not hiring you to hear speeches. Encourage IHC to ask questions and ask for their opinion on substantive decisions. Treat them as you would want to be treated as co-counsel. Be humble when asked about your experience; give examples, but undersell. Be cost conscious--ask before you charge substantial fees or incur substantial costs. Try to offer ways to reduce the legal expenses and behave as if you were paying (rather than collecting) the fees and costs being charged.
4. Give Substantive Advice and Be Accessible. If IHC leaves a substantive question on your voicemail, give a substantive response in your return voicemail/e-mail and don’t just say “returning your call.” Give IHC choices on possible legal strategies, but recommend your top choice and justify it. Then, if/when IHC (or the company) chooses a different direction, support the client’s choice. Do not direct – suggest, and always solicit IHC for suggested strategy. When IHC asks about your availability later that day or in the next few days, tell IHC when you are available, rather than what you’re doing that prevents you from being available – IHC didn’t ask for that and doesn’t really care (sorry). Give IHC ample advance notice of your planned absences/unavailability and remind IHC as the dates approach. Return all calls/e-mails promptly. If you cannot, have your assistant promptly return the call/e-mail and politely explain when you will be available again.
5.
Predicting Results, Fees and Costs. Often IHC will request a budget from outside counsel for the matter and, in a disputed matter, your opinion on the likelihood of success.
(As general counsel, I had a third question for outside counsel: the likelihood of recovery of legal expenses as the prevailing party.)
At the outset of a new matter, outside counsel often underestimate the fees/costs and overestimate the likelihood of success. Be conservative on predicting results and on the high side in estimating legal fees; then strive to obtain a better result and charge lower fees than estimated.
It is also
essential to update all estimates as the matter progresses, to avoid surprises and offer a meaningful option for IHC to change direction midstream, before the fees and costs have gone too high.
6. Meet or Exceed Time Deadlines. The following should be familiar for those of you who have had regular, recurring meetings (business or pleasure) with the same group of people: Certain (few) attendees are almost always early, most are on time or slightly tardy and some are almost always late. Most lawyers (IHC and outside counsel) promise and endeavor to provide prompt service, but often deliver/show up late. To distinguish yourself from many outside counsel, you must accept IHC’s tardiness yet be on time (or early) for meetings. The same goes for providing legal advice and draft documents to IHC. In litigation matters, my rule of thumb is to get a polished (not rough) draft of pleadings to IHC at least a few business days before the filing deadline (earlier for dispositive pleadings), then request substantive input from IHC on the pleadings. To reduce costs, ask whether IHC wants to use company resources to respond to discovery requests, especially gathering documents. Remind IHC as deadlines approach, rather than telling IHC only once about the deadline.
7. Promptly Send Clear Billing Statements. Outside counsel’s billing statements should follow the same general guidelines for good legal writing: They should be clear, concise, descriptive and complete. Many companies now have billing guidelines or requirements; follow them to the letter. Also, a person unfamiliar with your matter may review the invoice, sometimes years later, so it should contain enough information for a stranger to understand what you did for the time charged. Make it easy on IHC to see the total time and billing rate charged for each timekeeper. Describe and itemize the costs in easily understood terms. When you write off time or do not charge for certain services, show that on your invoice (when appropriate) so IHC realizes this benefit you provided. When IHC questions you about the invoice, promptly respond and resolve all doubts in favor of IHC, lest you win the battle but lose future business. Try to get your monthly invoice to IHC within 20 days after the end of the month; you can create problems for IHC (and for payment) with tardy, incomplete or inaccurate billings.
8.
Other Important Services.
Give credit to IHC for successes, especially in front of IHC’s client and superiors.
Offer free services – seminars, etc.
Send new published cases and articles of interest to IHC (about relevant legal issues, the company, the industry in general, competitors, etc.).
When asked by IHC for a lawyer referral, it’s fine to recommend another lawyer in your law firm (or yourself) if the person has the expertise, but recommend the right lawyer, even if that lawyer is outside your firm.
Give practical advice.
Suggest IHC and/or outside counsel get involved in any actual or potential dispute early on, to help develop better facts in the event
the dispute goes to litigation.
Finally, try to be positive and upbeat in conversations and other communications with IHC.
Gary’s career spans over twenty-four years of solid legal and business experience working with extremely sophisticated clients, companies and firms. He spent the first seventeen years of his career working in the Los Angeles area with such notable law firms as Paul, Hastings and Brobeck, Phelger & Harrison, where he honed his legal skills and developed savvy business insight handling creditors’ rights and bankruptcy cases. In 2000, Gary changed the focus of his career to become in-house counsel to several major corporations, including holding the Executive Vice President, General Counsel and Corporate Secretary titles for Downey Financial Corporation, a $16 billion, NYSE traded company that had over 2,500 employees. Gary Torrell’s role as a partner at Valensi Rose brings his practical business thinking and problem solving approach to their clients. Gary helps continue the Valensi Rose tradition of providing clients the highest level of business and legal advice, structured to keep fees and costs in check without sacrificing results.
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