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R e l at i o n s h i p b e t w e e n I n - h o u s e a n d O u t s i d e C o u n s e l
How to Get and Keep Our Work
Pet Peeves and Fave Raves
of Corporate Counsel
By Chrys A. Martin
Every attorney wants to know the secrets to getting work from a major corporation, keeping
the client happy, and building positive working relationships. Retaining a client is based upon
building relationships and committing to responsiveness and efficiency. Marketing surveys
also consistently show that business clients assume that most attorneys have a significant level
of substantive law competence. Therefore,
the top concerns of clients are responsiveness, industry knowledge, and efficiency.
How can attorneys insure that they are
responsive, have industry knowledge, and
are efficient? As an attorney who has the
wonderful opportunity to work with a
number of major corporations in a comprehensive manner on employment law
and employee benefits issues, I’ve learned
what clients want. I con-
clude that many attorneys see themselves
as merely providing legal services to the
client rather than partnering with them to
help them meet their strategic objectives.
If, in the role of outside counsel, an attorney simply works on the piece of litigation
on his or her desk, without understanding
and appreciating how it fits into a business’
overall strategic objectives, he or she may
provide great legal work but still not meet
the client’s business objectives.
For example, although it may be more
financially viable to quickly settle a case,
a company may be worried about copycat
cases and may not want to set a precedent
for settlement. Conversely, perhaps company executives who would be embroiled
as witnesses in litigation are in the midst
of an expansion plan or another important
corporate objective and simply cannot be
diverted by a lawsuit, no matter how frivolous the lawsuit may be. Thus, the corporate
Chrys A. Martin is an attorney based in the Portland, Oregon, office of Bullivant Houser Bailey, PC, which also has offices in Seattle, Vancouver, Sacramento, San Francisco and Las Vegas. Ms. Martin’s practice focuses on employment law and employee benefits from the management perspective. Ms. Martin was named by Chambers USA as one of America’s leading business lawyers in
employment for 2005, 2006, 2007 and 2008 and selected for inclusion in Best Lawyers in America 2007 and 2008, under Labor
and Employment Law. She was named a Super Lawyer in 2006, 2007 and 2008 and one of Oregon’s top women lawyers.
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objective may be that this lawsuit regardless
of merit simply has to be settled.
This article, which analyzes a number of
interviews, reports, publications and surveys, sets forth several of the factors that
are routinely cited by corporate counsel
as their “pet peeves” or their “fave raves”
when discussing the services provided by
their outside counsel. In-house attorneys
may find that sharing the themes within
this article with their outside counsel will
help to articulate some issues that sometimes go unaddressed, and/or others that
are simply in need of refreshing. If the outside counsel doesn’t know your underlying
corporate objectives, they will not be able
to meet them successfully.
Cost Matters
n Consider the inside view. Robert Burns,
Of Counsel at Brouse McDowell in Akron,
Ohio, writes that “the biggest and longest
running disconnect between in-house and
outside counsel” is that law firms focus on
experience and relationship building, while
clients focus on costs and value-added services. Robert Burns, An Ongoing Saga: The
Still Imperfect Relationship Between InHouse and Outside Counsel, Of Counsel,
Vol. 24, No. 10, Oct. 2005., http://patricklamb.
typepad.com/perfectservice/files/burnsarticle1.pdf.
See also Steven A. Lauer, What Do Law Firms
Sell? What Do Clients Buy?, Law Practice Today, ABA Law Practice Management Section, Jan. 2004, http://www.abanet.org/lpm/lpt/
articles/fin01042.html. William B. Solomon,
Jr., General Counsel of GMAC, has said,
“When I talk to law firms, I have one hand
on my wallet.” See Mary Swanton, “Making
the Grade, 18th Annual Survey of General
Counsel, Inside Counsel, July 2007. One article even suggests giving corporate counsel
a stake in cost control by tying bonuses to
the cost control measures inside attorneys
are able to work out and utilize in regard
to outside counsel costs. See Rees W. Morrison, Cost Control Patrol, Legal Times,
Vol. XXVII, No. 19, May 17, 2004.
At its base, however, it may simply be
a matter of reinforcing the importance of
outside counsel’s awareness of their clients’
budgets—and the value they place on any
particular matter. See Thomas L. Sager and
Steven A. Lauer, The Billable Hour: Putting
a Wedge between Client and Counsel, Law
Practice Today, ABA Law Practice Man-
multi-year work and annual fee increases.
work for their clients. The focus should not
simply be on billing for today, but a method
should be found that will work for a longterm relationship with clients. Stephen
Falanga and Thomas Sparno, Building Successful Relationships between In-House and
Outside Counsel, Metropolitan Corporate Counsel, at 46, May 2006 (Interview), http://www.metrocorpcounsel.com/current.
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php?artType=view&artMonth=May&artYear=2006&
EntryNo=4938. Firms are not adequately re-
agement Section, Dec. 2003. Outside attorneys should cooperate and communicate
with their clients on what service will cost
and why. The client should be continuously
updated on the cost. At the same time, the
cost should be kept practical given the business objectives of the client.
n Consider the impact of the Big Case,
Law firms focus on experience
and relationship building,
while clients focus on costs
and value-added services.
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“Every year—even during recessions—law
firms raise rates, despite the fact that they
are billing fewer hours,” writes Petra Pasternak. See GCs Vent Their Frustrations about
Outside Counsel, The Recorder, May 23,
2006, http://www.law.com/jsp/ihc/PubArticleIHC.
jsp?id=1148301328212. “[D]uring down years
they [law firms] shouldn’t pile up expenses,”
a Silicon Valley general counsel who requested anonymity has said. Id. See also
Thomas L. Sager and Steven A. Lauer, The
Billable Hour. The impact of fee increases
are especially important to keep in mind
when litigated cases extend past one year
and into another, where the client is forced
to pay more rather than risk losing counsel
who is familiar with the litigation.
n Be conscientious: consider hidden costs
to clients in case budgets and estimates. “I
hold my thumb on my outside firms. It’s very
labor intensive on my side to prevent a runaway budget.” Mary Swanton, Making the
Grade (quoting Paul Risner, General Counsel, Boca Raton Community Hospital).
n Make costs easy to decipher. Corporate
counsel and clients want billing entries they
can understand. When they read their bills,
they should know what work was done and
why. Outside counsel should articulate the
value they are delivering to the overall case
strategy, not merely the legal task they are
performing.
n Be flexible. Outside attorneys should be
able to come up with billing solutions that
sponding to client concerns about cost.
In-house attorneys are finding alternative
solutions. Many are less than ideal, for obvious reasons: “[T]hey’ve even sent work
to cheaper lawyers in the Third World.”
Catherine Aman, Cracking the Whip,
Corporate Counsel , Feb. 27, 2003,
http://www.law.com/jsp/law/LawArticleFriendly.
jsp?id=1046288234900. (discussing alterna-
tive fee arrangements used by law firms
and their corporate clients). Christian Na,
General Counsel, Mitel Networks has said,
“I always ask if we can have arrangements
other than the hourly fee, but law firms shy
away and offer reasons why it won’t work,”
Mary Swanton, Making the Grade (quoting
Christian Na, General Counsel, Mitel Networks). However, many clients are leery of
flat fees, so the flat fee concept must be explained in detail.
How to Get on the Radar
Screen: Getting Hired
n No name dropping; do your research
instead. The client and the client’s inside
attorneys decide whether outside counsel
is technically proficient early on, perhaps
even before they are invited to make a pitch.
What impresses inside counsel most is the
attorney who has researched their business and knows what’s currently going on
in their industry. Outside counsel should
make their pitch all about the company,
not all about them. A service approach,
focused on the client’s needs, works well
far beyond the point at which the outside
attorney tries to get hired. It will help outside counsel clients: “We know that most
law firms get fired because they don’t provide good enough service, not because
the lawyer isn’t smart.” Dick Dahl, Corporate Clients Dissatisfied with Outside Counsel, Lawyers Weekly USA, April 15, 2006,
available at http://findarticles.com/p/articles/
mi_qn4181/is_20060415/ai_n16166188/pg_1
In-House Defense Quarterly Summer 2008 57
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R e l at i o n s h i p b e t w e e n I n - h o u s e a n d O u t s i d e C o u n s e l
(quoting Beth Cuzzone, Director of Business Development, Goulston & Storrs).
n What do clients look for in outside counsel? In one survey, in-house counsel ranked
the following criteria as the top eight things
they look for in selecting outside counsel:
1. Quality of work/responsiveness
(tie)
2. Creative solutions
3. Billing rates
4. Provides preventive counseling
5. Multiple practice areas
6. Offers alternative fee arrangements
7. Has a diversity program
8. Has national reach
Mary Swanton, Making the Grade. Other
surveys rate responsiveness and creativity even higher, with substantive expertise
down a notch or two, as is expected.
Keeping Clients: Offer ValueAdded Services
n Be personable. Outside counsel should
get to know clients individually. Clients
should be introduced to counsel’s staff, too.
Robert Burns asks corporations and outside counsel to assess: “How well can you
rate each of them on the following: Overall
personality? Integrity? Actual versus selfperceived industry and business IQ? Business/industry and company experience?…
Risk tolerance? Communication expectations? Timing expectations? Budget expectations?” Robert Burns, An Ongoing Saga.
n Be respectful. Outside counsel should
respect a client’s staff and recognize their
efforts. If an attorney is rude to the general counsel’s secretary, he or she won’t
last long.
n Use a team approach. The team members who work with the client should remain
consistent, when possible, and a firm-wide
team approach should be utilized so that if
the partner is tied up, a client can still find
someone who knows them to communicate
with. Good attorneys don’t duplicate work
by having multiple associates on the same
file, absent very unusual circumstances.
See Falanga and Sparno, supra.
n Know the client. “We want to create
an environment in which outside counsel knows as much about our business as
we do…. We want it so our business people don’t know the difference between inhouse and outside counsel. That is starting
to happen.” Robert Vosper, Better Clients,
Inside Counsel, Sept. 2006, http://www.in- as their attorney, but as their trusted busisidecounsel.com/section/trends/630 (quote from
James Donchess, Assistant General Counsel of Parker Hannifin). Non-­billable hours
should be spent getting to know the business. Dick Dahl suggests using questionnaires that ask about the service received,
having a client team that understands the
business, and meeting with clients “off the
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Clients want law firms
that can keep up with and
adapt to their changing
industry and needs.
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meter” to learn about the business and the
problems the client is facing. Dick Dahl,
Corporate Clients Dissatisfied with Outside
Counsel, Daily Record and the Kansas City
Daily News-Press, Apr 15, 2006.
n Be proactive. “Law firms do just what
we tell them to do. No more and no less.”
Dick Dahl, Corporate Clients Dissatisfied
with Outside Counsel (quoting Michael
Rynowecer, President of BTI Consulting
Group (who put out a 2005 survey of corporate counsel)). This is not what most clients want. “[U]pdate clients regularly on
changes in the law and other matters that
might affect their business.” Id. Outside
counsel can offer CLEs and legal alerts as
part of their service. Id. They should also
recognize and be able to adapt to the client’s changing needs. “Companies’ needs
and priorities change ‘every 18 months,
almost like clockwork.’” See Sandra Prufer,
In-House Counsel Axing Law Firms, ABA
Journal Rep. 2 (Sept. 8, 2006) (quoting Michael Rynowecer, President, BTI
Consulting Group). Clients want law firms
that can keep up with and adapt to their
changing industry and needs. Id. Providing
“value-added” service will help assure outside attorneys that the clients will appreciate and remember them.
n Be resourceful. If outside counsel can
connect their clients with other service providers to improve business performance,
the client will begin to see counsel not just
58 In-House Defense Quarterly Summer 2008
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ness advisor.
Communication—What
Works and What Doesn’t
n Initiate. Immediately, on receiving a matter, initiate a preliminary discussion about
the matter and the company’s strategic
direction. Later meetings of more substance may be required, but don’t ignore
that first connection. This lets the client
know the matter is as important to their
attorney as it is to them.
n Make sure you understand the scope of
work being asked of you. Don’t surprise the
client with a bill for work not asked for.
n Give a client “just the solution, please.”
“Clients constantly complain to me that
outside lawyers continue to supply Rolls
Royces when Volkswagens would do.” Joel
F. Henning, Law Firms and Legal Departments: Can’t We All Get Along?, Business
Law Today, ABA Section of Business Law,
July/August 1998, http://www.abanet.org/
buslaw/blt/7-6firms.html. Inside counsel aren’t
as interested in the problem as they are in
the solution. See An Interview with David
W. Rutstein. Clients want a result and want
to pay for a result. See Steven A. Lauer,
What Do Law Firms Sell? What Do Clients
Buy? Perhaps the result is representation
in a lawsuit or the legal work required for
a business transaction. Id. However, the
result is what the client wants to pay for, not
the consultation and time. Id.
n Ask for feedback. Outside counsel
should ask the client what they like or don’t
like—how they think he or she is doing.
Dick Dahl, Corporate Clients Dissatisfied
with Outside Counsel. Problems should be
discussed with clients as soon as they arise.
The client should be given an opportunity
to let counsel know if there is a problem.
n Take the client seriously. Outside counsel should not treat the client as if they don’t
know what they’re talking about or in a way
that gives the impression that he or she only
has time for big problems. If it’s a problem for the client, it should be on counsel’s
radar and they should care.
n Be prompt in communication. E-mails
and calls should be returned within two
hours—24 hours at the latest. If this is
impossible, outside counsel’s secretary
or paralegal should get back to the client
to determine what assistance is needed.
“Sometimes, showing that you provide Become a Strategic Partner
better-than-excellent service is all you n Learn about the client’s goals. “GCs put
need to establish a unique position—for confidence in an outside counsel that quesexample, calls consistently returned within tions why a company is litigating a partictwo hours.” Edward Poll, Are You Unique ular matter.” Petra Pasternak, GCs Vent
Enough to Deserve a Raise?, Law Prac- Their Frustrations About Outside Countice Today, ABA Law Practice Manage- sel. As one general counsel explained, “‘My
ment Section, Jan. 2007, http://www.abanet. life would be a lot easier if the law firms
org/lpm/lpt/articles/mtt01071.shtml. Alterna- asked: What are your priorities? How do
tively, “[n]othing is more dangerous than a you want to handle this? Where should the
client who’s left to assume a lawyer is play- resources go?’” Id. (quoting Golden West
ing golf or, worse, napping on their dime.” Financial Corporation General Counsel
Petra Pasternak, GCs Vent Their Frustra- Michael Roster). Unfortunately, a lot of law
tions About Outside Counsel. Keep in mind, firms become too focused on fees and lose
“E-mails get returned in [the corporate] sight of their client’s litigation goals. Rosenvironment in 20 minutes.” Id. (quoting ter continued, “[i]nstead of prioritizing a
Mark Stevens, Fenwick & West).
client’s objectives… [m]any firms are too
n Help with PR. Outside attorneys should
focused on their own billable-hour requirebe prepared and have excellent communi- ments.” Id.
n Make it easy for your client to follow
cation protocols in place before any disaster is imminent. Id. The client should not be the litigation process. “Avoid sending an
made to scramble. There should be cooper- e-mail with a huge attachment and asking
ation with corporate counsel, and an effort a general counsel to review it.” Id. A general counsel appreciates receiving succinct
made to make
them look good. Id.
3UCCESSFULCOPYPDF0-
summaries of voluminous documents. As
one general counsel stated, “I would really
like a user’s guide to a long document.”
Id. (quoting Claria Corporation General
Counsel Richard Gray). A good “user’s
guide” will highlight the areas that require
“important strategic decisions.” Id.
n Be realistic with your client about
timelines. “Candid disclosure counts.” Id.
According to one general counsel, “I’d
much rather have outside counsel tell me
a date they’re confident about than curry
favor with me by making unrealistic promises.” Id. (quoting Claria Corporation General Counsel Richard Gray). Don’t over
promise and under deliver.
n Be honest. Outside counsel should
admit errors if they happened—blame
shouldn’t be passed on to team members.
Personal responsibility should be taken.
Outside counsel’s expertise, and that of his
or her firm, should not be oversold. If the
expertise isn’t there, that should be clearly
stated.
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