How to Retain Outside Counsel

Factors to Consider When Retaining Outside Counsel to Assure the Best Possible Legal Representation

1. Experience. Hire outside counsel who has been practicing law at least 10 years. Your outside lawyer's knowledge, skill, judgment and experience should reflect positively on your company. While inexperienced lawyers mean well, they often don't possess the judgment and experience necessary to achieve your goals.

2. Specialization. Hire outside counsel who is recognized as competent in his or her area of law. The lawyer's competency may become known to you through the lawyer's experience, recommendations from the lawyer's clients or referrals from colleagues. Make certain you are satisfied that your outside counsel possesses the necessary skills to draft documentation for a transaction and litigate the matter should it become necessary.

3. Negotiating and Trial Skills. Hire outside counsel who possesses excellent negotiating skills as well as litigation skills. Negotiating skills are critical in the alternative dispute resolution process, which includes mediation and arbitration as well as settlement discussions. Often, when a dispute arises over a transaction, the transactional lawyer turns the file over to a litigator to prepare the matter for trial. Unfortunately, litigators are at a disadvantage because they don't have a full understanding or appreciation of the underlying transaction. Therefore, when outside counsel represents the corporation on the transactional side and is capable of litigating, he or she has a major advantage because of the knowledge outside counsel possesses of the underlying transaction.

4. Honesty. Hire outside counsel who is honest, ethical and professional. You may feel this goes without saying, yet every year attorneys are disciplined by their bar associations because of inappropriate conduct. Don't hesitate to conduct a background check or request written references on any outside counsel who is being considered for retention.

5. Trust. Hire outside counsel who is able to establish a trusting and pleasant working relationship with members of your legal department and management. The ability to work together in the business environment is paramount to obtaining the desired result. Even if outside counsel has competitive rates, solid expertise and appropriate staffing, outside counsel's relationship with you determines whether counsel is able to achieve for you the most favorable result.


6. Stature. Hire outside counsel whose experience and stature put your company in the strongest possible bargaining position. In adversarial proceedings, your outside counsel should be judged as equal to or better than the law firm retained by your opponent. This protects you and prevents upper management from feeling it is being out-gunned.

7. Conscience. Hire outside counsel who cares about your problems and the quality of the work product he or she delivers to you. The outside lawyer who puts your interests ahead of his or her own is the only lawyer you should consider hiring. He or she should be accustomed to achieving excellence and should demonstrate that level of expertise in his or her work product.

8. Preparation. Hire outside counsel who takes time to work with you and your business people. This extra investment and commitment prevents embarrassing situations that may occur at your expense. To achieve the result you want, research and preparation are key.

9. Work Product. Hire outside counsel who has a proven record of delivering a high quality work product. The last think you want is for your outside counsel to deliver work product that could be perceived as lower in quality than you could provide in-house.

10. Staff. Hire outside counsel who has the staff and support system to address the legal workload. If your outside counsel cannot keep up to speed with the transaction or litigation, you can quickly find yourself in a crisis. He or she should provide you with assurance that he or she has the time, support staff and technology to confidently and zealously represent your interests.

11. Technology. Hire outside counsel who uses current technology to manage his or her work to ensure that it is completed in a cost-effective and timely manner. Technology can greatly improve efficiency and lower the costs of gathering, reviewing and presenting information. Your outside counsel should depend on state of the art technology to produce work product more efficiently, quickly and accurately.

12. Service. Hire outside counsel who provides the high level of service you want and deserve. Outside counsel should return telephone calls promptly, quickly respond to e-mail (“good etiquette”), monitor the progress of projects, stay on budget, meet time deadlines, help you decide how to present advice to management, and respond immediately to any crisis. Communication is the key to a successful attorney-client relationship.

13. Cost-Effectiveness. Hire outside counsel who can find solutions that are cost-effective for your company. Your outside counsel should conduct a risk analysis on any litigation to quantify the risk and, where possible, resolve disputes with mediation or arbitration. This will help you avoid spending thousands of dollars on attorneys' fees, trial preparation costs and management time. Your outside counsel should periodically review your legal matters and suggest solutions taking into account the cost of each alternative.


14. Quality Control. Hire outside counsel who invites feedback and wants to review completed legal matters. When your outside lawyer requests an evaluation, he or she is making a diligent effort to provide you with the services and work product that best address your problem or achieve your goal. If your outside counsel is not open to doing things your way, you have a fundamental conflict and should retain other counsel.

15. Corporate Goals. Hire outside counsel who shares your goals and visions. The strength and quality of your attorney-client relationship has a direct effect on the service, work product and result you receive.

16. Relationship. Hire outside counsel who respects and nurtures the relationship he or she has with you. When you connect with an outside lawyer in a meaningful professional dialogue, you will look back upon that experience as one of the rewards of your profession.

17. Transition. Hire outside counsel who can transition easily from the law office to the corporate setting. Often, outside counsel does not understand the corporate context in which you work. Some cannot articulate issues so they can be easily understood. Your outside counsel needs to exhibit the traits expected of a seasoned business executive so he or she relates well in your company's environment.

18. Political Environment. Hire outside counsel who can work within the politically charged atmosphere of a corporate setting. Your outside lawyer should take time to understand the political context within which the problem arose and must be resolved. Your outside counsel's advice must satisfy hidden agendas and must not create problems or set standards your company cannot meet.

19. Scrutiny. Hire outside counsel who realizes that your department comes under intense scrutiny when you retain an outside attorney. And, not surprisingly, the primary area of focus is the quality of that counsel. This is particularly true when the corporation is involved in a transaction or litigation matter that requires the involvement of top management.

20. Budget. Hire outside counsel who realizes that you must justify your budget and keep your department running in a sound manner. Outside counsel should recognize and be sensitive to the fact that you are under the same high level of accountability as other departments within the company.

21. Team Player. Hire outside counsel who is a team player and will abide by corporate policy. Not all lawyers can relate to what it is like to work as in-house counsel. Some lawyers do not interface well with business people. Others are not skilled at the team approach to solving problems. To be effective, outside counsel must fully understand and adhere to his or her role within the team.

22. Management. Hire outside counsel who appreciates that you have only one client — upper management — and that your relationship with upper management must be constantly nurtured and maintained. Your outside counsel should realize that if any doubt or mistrust clouds your relationship with upper management, you could become ineffective in your position.


23. Respect. Hire outside counsel who appreciates the unique aspects of an in-house law practice. Some outside lawyers imply by their words and actions that the in-house lawyer is somehow not up to speed because he lacks technical expertise. Often, they do not appreciate your in-depth business expertise and generalist's view of the law, which are the qualities for which you were hired.

24. Attention. Hire outside counsel who cares about you as a person. Many outside lawyers do not appreciate that in-house counsel often feel isolated because they have little interaction with outside attorneys. Look for a relationship with an outside attorney that goes beyond simply handing over files or creating documents.

25. Sensitivity. Hire outside counsel who appreciates the tremendous financial stake you have within the corporate structure. If you choose the wrong outside counsel, or if his or her behavior or services weaken you position within the company, your decision to hire him or her could have a negative impact on your future. Make sure the lawyer you choose appreciates your position and what you have at risk.

26. Supervision. Hire outside counsel who will supervise all the legal matters assigned to him or her and his or her firm. Your outside counsel should act as your intermediary and oversee all work being done by the attorneys in his or her firm. This saves you a great deal of time because the outside counsel is the only person who reports to you.

27. Liaison. Hire outside counsel who is willing to find and supervise the legal practitioners you need even if they are not in his firm. The outside attorney can interview and screen lawyers, and recommend who can best provide the services you need. In this way, outside counsel acts as your liaison to supervise and coordinate all the lawyers who are working on your behalf.

28. Firm Structure. Hire outside counsel whose firm's structure and management are organized to facilitate serving the client's needs in an expedient and cost-effective manner. All law firms are not structured alike. Inquire of your outside counsel how the firm is managed; how the attorneys are compensated; how staffing decisions are made and by whom. Answers to these and other questions will provide you with valuable information so that you can make an informed decision regarding engaging outside counsel.


Provided as an educational service by John Raymond Dunham, III, Esq..

This publication is intended to serve you. If you would like certain topics covered, or have any questions or comments, you are invited to contact Mr. Dunham at: 941.951.1800, Ext. 250, Facsimile: 941.366.1603, E-Mail: jrd@jrdlaw.com, Web site: www.jrdlaw.com or write him at LUTZ, BOBO, TELFAIR, DUNHAM & GABEL, Two North Tamiami Trail, SARASOTA, FLORIDA 34236.

This publication is designed to provide accurate and authoritative information in regard to the subject matter covered and report on issues and developments in the law. It is not intended as legal advice, and should not be relied upon without consulting an attorney.