Does Your In-House/Outside Counsel Relationship Need Counseling?

By Kristin Casler, featuring Jeffrey Singer, Segal McCambridge Singer & Mahoney Ltd.

Attorneys who take their client relationship for granted do so at their own peril, and that of their client, too, for that matter. If you are among those who have been neglecting your relationship, it’s time to turn things around. Here are a few expert insights to help you make a fresh start.

How to Foster the Long-Lasting Relationship

As with any other relationship, you need a foundation of trust. You know this doesn’t come immediately or without some level of effort. It takes time. But it starts with exhibiting and maintaining an attitude of fair and equal treatment. You are collaborators on a project, and you need to trust one another to share information, be forthright, and to uphold your end of the bargain. When there is suddenly a new development on a case, a change in strategy, a suggested fee arrangement or a billing dispute, you can rely on that trust foundation to allow a civil, productive conversation that doesn’t damage the relationship.

Extend that trust beyond a few in-house and outside attorneys at the firm. Associates, staff and paralegals are often the people interacting. They need to work on the same touch-points to be part of the trust network.

The Importance of Client/Counsel Communication

Everyone knows the drill—constant, clear communication from both sides is essential. You can’t build anything without clear instructions. And no one wants surprises. What is the budget? What are the priorities?

“But, you’d be surprised how many lawyers make the mistake of not asking basic questions, and not just in the early stages,” said Jeffrey Singer, Co-Chairman of Segal McCambridge Singer & Mahoney Ltd.

Outside counsel needs to better understand the nature of the in-house counsel’s job. What are their challenges each day, both short term and long term? Singer asked. Outside counsel may not really recognize the challenges and expectations that inside counsel have. They have to ask. And this goes beyond discussing a case or a corporate witness interview. What do they need to get their jobs done properly and meet corporate expectations? What can you do to make their job easier? How does the counsel’s boss play into the job?

“When outside counsel is aware, they can add value,” Singer said. “They can help in-house counsel succeed. This is progressive thinking, and it’s not always done.”

Additionally, in-house and outside counsel should speak often, so everyone stays on track and corporate objectives are met. The more often this takes place in person, the better. Email makes it too easy to never see your team. Face-to-face meetings definitely develop closer ties.

While the work needs to be on a professional level, there’s room for friendly exchanges. You are, after all, on the same team. Corporate counsel who openly discuss the pressures they face or when in-house and outside counsel share things in common such as family or outside interests, it adds a human element and makes the trust come more readily.

When it comes to responsiveness, you need to define expectations. It may seem like a no-brainer, but given the speed of today’s communications, this can be a source of friction. What if in-house counsel prefers to respond by phone but outside counsel is accustomed to a near-immediate email response? Either side could stew over perceived failures in responsiveness that could have been addressed from the get-go.

Litigation Guidelines

Litigation is often the chief task for outside counsel. Good communication in this arena is especially key. Singer said outside counsel need to ask: What’s your philosophy about trying or defending cases? What is the big picture for your company? What do you need to report? Do you need to pass on more meaningful information about the case?

“These are not intimate questions,” Singer said. “If the company likes to settle cases early, I don’t want to put a team together to litigate. If you decide on a litigation plan that is WWIII, and you are spending a lot of money, and the client doesn’t want that, you’ve made assumptions that you shouldn’t have.”

Singer advised asking these questions even of long-standing clients. Philosophies change.

On the other side of the coin, corporate counsel must express the litigation philosophy early on. Effective communication is a two-way street.

“You’d be surprised at how often there is a reluctance to address questions like what you project as the eventual outcome and whether the road to it involves intensive litigation, a lot of discovery or mediation,” Singer said.

Sometimes, outside counsel just make strategy decisions, saying, ‘Well, it’s my case,’ Singer said. “Why not ask the corporate counsel if that’s a strategy the company wants to pursue? It seems logical, but it doesn’t always happen. Of course, busy inside counsel often are happy to delegate strategy decisions.”

Fostering a Stronger Relationship

Just as inside counsel can boost the relationship by sharing, outside counsel can open up. Letting corporate counsel have a say in some firm business can further develop the relationship and reinforce that both sides are in fact on the same team, that you are working as peers.

Another useful team-building tool is the post-case review. It’s easy to put a case behind you once it’s resolved, but a quick exit interview can go a long way to resolving any issues – big or little — that may crop up in the next case. Either in-house or outside counsel can initiate this, and it really should be standard practice.

How the Relationship Can Be Jeopardized

Money is at the root of a good deal of relationship deterioration. In the case of corporate/outside counsel, there’s a natural conflict. In-house counsel have to live within a budget but want high-quality work. Law firms want to proceed without restrictions, preferably on an hourly basis. How do you mesh the two?

Start from day 1. Maintain harmony by making budget objectives clear. Define the assignment and who will carry out which tasks. And for each strategy, be sure to thoroughly discuss the cost-benefit analysis.

Unfortunately, the best-laid plans don’t always evolve as expected. Law firms need to monitor monthly billing and notify the client when the budget goes off the rails for valid, substantive reasons. If it is out of whack because of inefficiencies at the firm, the firm might be better off eating the extra hours spent rather than jeopardize the corporate budget or the in-house relationship.

Besides money disputes, relationships can be harmed by lack of communication and responsiveness, changing expectations, or even poor-quality work.

When Things Unravel

What to do when things go awry? Be frank. Clear communication is more important than ever when things are unraveling. Avoidance is easy. Don’t take the easy road. You’re all professionals, after all. Outside counsel don’t want to dance around issues they can fix, and they don’t want to be shut out of future business for a misunderstanding or misstep that could be rectified.

“If there is a loss of trust, then the relationship is going to be very hard to rehabilitate,” Singer said. “When we are asked to take over cases from law firms, it is usually because of a lack of communication, lost confidence in the outside counsel, or the outside counsel are in over their heads. The corporate counsel may feel the firm is no longer on his side. This is probably because they haven’t had enough of a discussion, or they may just have overlooked the basics.”

This article is based on panel discussion at HB Litigation Conference’s 2015 Drug & Device Defense Forum.