The cornerstone of a productive client and outside counsel relationship starts by setting clear and consistent expectations of the law firm at the outset of the client engagement according to Kelly Spratt-Szarzynski, senior strategic consultant on the Lexis Nexis® Counsel Link® team. This involves developing an outside counsel guidelines document that formally communicates the legal department’s expectations.
Ms. Spratt-Szarzynski offered these insights during a webinar titled: The Strategic Value of Outside Counsel Guidelines.
According to Ms. Spratt-Szarzynski, outside counsel guidelines generally contain information broken into the following three categories:
• Processes and Procedures. This portion of the document is usually related to: matter acceptance, conflict checking, case assessment expectations, status reporting, matter disposition and matter staffing.
• Requirements. Requirements are most frequently covered in outside counsel guidelines because, as the title states, they are required by the legal department in order to conduct business. This portion generally includes: invoicing guidelines and expectations, offering rates related to AFAs or any discounts and enforcement and restriction of them, items that will not be paid and data points to be collected.
• Policies. This portion of the document typically addresses any company policies related to: security, compliance, diversity, handling of media or company travel policies, etc.
We don’t fundamentally disagree with any of this but it is predicated, as this sort of discussion usually is, on a relationship paradigm of master and servant; the client is the master and the lawyer is the servant. ‘We are the client and we will set out the rules of engagement and you will comply with them. We will do so courteously and in the guise of a consensus but be under no illusions – we are calling the shots’.
Such a mindset is guaranteed to deliver sub-optimal outcomes, generate avoidable cost and cultivate avoidable conflict and tension between the lawyer and the client.
The delivery of legal services is in almost all instances a collaboration; a partnership if you will (in the loosest sense). Implicit in this notion is the idea of reciprocal and mutual responsibilities. In short, the lawyer can’t do their job properly without the client doing their bit, whatever that may be.
Additional cost and conflict between the lawyer and the client can be and often is the result of things within the clients’ control or influence including, (but by no means limited to):
• ‘needy’/high-maintenance/inexperienced clients
• the client’s own internal inefficiencies,
• the clients’ belief that they can fire a ‘hospital pass’ to the firm then wipe their hands of the problem,
• convoluted and opaque client-side communication and decision-making channels,
• failure to provide information, documents and instructions in a timely manner and having to be chased up for it,
• a lack of centralised contact with the law firm resulting in conflicting instructions,
• the need to report to and communicate with multiple people on the same issues,
• disjointed, disorganised and incomplete information and documentation, and
• a propensity to get the law firm involved at the last minute (saves money – no it doesn’t!) which means that things are often unnecessarily conducted in a blind panic.
Many lawyers just put up with it, regarding it as simply one of the challenges that come with the job. But it should not be and there is no reason it should be. The key here is not the message but rather, as with so much about sophisticated pricing strategy, it is the ‘packaging’ of the message that is crucial. For example:
[After the job is completed] “I know you are not happy about how the cost has run up but you need to understand that because you are so disorganised and need so much hand-holding, the costs are at least 50% more than they are for some other clients” Good luck with that conversation.
[At the outset of the job] “We don’t want this to cost you any more than is necessary. There are some suggestions we can make that will help keep your costs down, some of which can be achieved at our end, some of which can only be achieved at your end. Can we work out for example how often you want updates, what communication method will work best, who the central point of contact will be, the timeframe within which you will respond and so forth. If we have a joined-up approach to this job, you can help us to help keep your costs down. Is this of any interest to you?”
It is difficult to see why any client would respond negatively to the second of these two approaches; quite the contrary.
Quite apart from everyone’s appetite to reduce stress and tension in the relationship, there must be a compelling business case for reciprocity of conduct expectation and that a clearly articulated set of client-side obligations deserves a seat at the same table as Kelly Spratt-Szarzynski’s ‘Outside Counsel Guidelines’.
Note to self: Start drafting a ‘Client Responsibilities Charter’. And while we are musing, what about a conversation with a client along the lines of, “Our price for this job is X, but if you sign up to our ‘Client Responsibilities Charter’, the fee is 90% of X”. Hmm, catchy!