Successful Partnering Between Inside and Outside Counsel is a four-volume treatise from West Publishing that combines extensive analysis of various legal services with practical advice for attorneys to successfully navigate the intricate relationships between inside and outside counsel and their clients.
Sponsored by the American Corporate Counsel Association, this treatise consists of 80 chapters written by over 200 authors and co- authors who serve as general counsel for more than 75 Fortune 500 companies and as the chairmen and senior partners of major law firms from across the country.
The depth and attention to detail demonstrated in these articles reflect the dedication of the authors toward creative problem- solving and the implementation of practical new solutions to address both traditional and new problems faced by corporate clients. It is simply too great a task to do justice to this expansive treatise in a short review. However, insight into this collection can come from considering the treatise's focus on teamwork and communication in the context of how to accomplish the client's needs. This review examines several chapters to highlight just a few of the informative and diverse articles in this treatise.
Chapter Four deals with the very important issue of the selection of outside counsel by the client. Valuable guidance and insight is presented, both from the standpoint of the client and of the outside lawyer. Oklahoma lawyers will find this discussion useful whether they are employed by companies and are responsible for the hiring of lawyers or are the lawyers in private practice interested in doing a better job marketing their abilities to new clients.
Some of the techniques and procedures are more relevant to the Fortune 500 companies, with general counsel and entire legal departments, and others useful to smaller companies, possibly with one or two in-house counsel. The concepts important to selecting the best lawyer for the job may be equally enlightening to the owner of the small business, being the person who hires the lawyer, without assistance from an inside counsel.
The key to success is a relationship of mutual respect intended to jointly resolve the client's problems. The authors of this chapter divide their analysis into four principal steps: first, developing a planning process; second, identification of candidates; third, obtaining information from candidates; and, fourth, actual selection of the lawyer.
The planning process requires a careful look at the company's goals and objectives, which will impact budgeting and fee issues as well as determine the exact legal skills needed. Most companies look to hire the right lawyer, rather than the law firm. Not surprisingly, the best source should be lawyers used previously by the company. Approved outside counsel lists are also a good source, if kept current.
The selection process may be as informal as a telephone conversation with the potential lawyer or as involved as a series of personal interviews with the selected candidates, or the so-called beauty contests. Whatever the degree of detail or formality, the company's goal is to find the best lawyer to achieve its objectives in the representation.
Interestingly, the authors recommend that the decision to engage counsel be made by the internal lawyers and not the company's executives or senior management. The importance of consulting with management is emphasized to ensure the proper level of confidence and good chemistry exists, but it is felt the selection requires exercise of knowledge and judgment within the expertise of in-house counsel and should reside with them.
The final step before the lawyer is retained requires agreement on at least three points: who from the firm will be responsible for the work; what rates and billing arrangements will apply; and, finally, the nature and extent of the legal services to be provided. Readers will find useful forms such as a Practice Checklist at Section 4:37, an Early Case Assessment at Section 4:38, Budget at Section 4:39 and Requests for Information to submit to the candidates at Sections 4:40 and 4:41.
Chapter Five continues with more formal mechanisms for selecting counsel, such as requests for proposal, or an actual bidding process. The goal of each method is the creation of a competitive environment for the purchase of legal services. Requests for proposals are generally recommended for legal projects of significant size and the bidding method can be used to price similar and repetitive services, such as prosecution of numbers of patents, and the defense of numerous lawsuits, such as slip-and-fall cases. The reader will get the benefit of which method to select, how to develop and implement the chosen strategy, and the evaluation of information gleaned from the process so that the right lawyer can be selected to represent the company.
The treatise also includes a chapter on alternative dispute resolutions, which focuses on obtaining successful results through the various alternatives to litigation. The great number of practice considerations discussed in this chapter include suggestions on what types of matters are best resolved without litigation, when to propose mediation to the other side, and a discussion of the legal issues surrounding mediation. In addition, the authors provide a straightforward comparison of the virtues of mediation, arbitration, and litigation as avenues to achieve the results clients expect.
Throughout the article the authors emphasize the importance of communication between attorney and client and attorney and mediator. One such area in the article is the list of 25 practice tips for successful mediation. The list covers a wide range of suggested practice points concentrating on the details of preparation and conduct for being an effective advocate during mediation.
Volume Four of the treatise contains chapters which cover specific practice areas such as intellectual property, employment law, real estate law, and mass torts. These chapters contain extensive discussions on topics concerning inside and outside counsel. For example, Chapter 72, on environmental law, is a 183- page article addressing key issues environmental lawyers face.
One area this article addresses is governmental enforcement activities. The authors point out that the number of instances where the EPA delegates its authority to state agencies to prosecute enforcement actions has risen steadily over the past few years. The problem clients face is that even after successfully concluding an enforcement action from the state, the EPA can still bring a new action on the same violations if it is not satisfied with the state outcome. As such, the authors caution attorneys to consider the ramifications of settling a state action that has received considerable public attention.
Like the other articles in this treatise, this article is supplemented with several forms that are contained on a four-disk collection accompanying the treatise. One such form that supplements this chapter is a 66-point checklist for due diligence in the proposed purchase of commercial property. The checklist encompasses questions on the history of the property, prior owners and operations, and enforcement and remedial activities. Additionally, various sections of the checklist address specific questions that are necessary to ask at different levels of investigation. Overall, this is a thorough checklist for counsel to analyze and advise a client during the purchase of commercial property.
All in all, the depth this treatise provides to the treatment of its many topics makes this collection a valuable source of information for both inside and outside attorneys working in the pursuit of their client's goals.
Kenneth N. McKinney and David R. Stewart are attorneys with McKinney & Stringer. McKinney is chairman of the board and a director of the firm he co-founded in 1971. Stewart is an associate attorney working in the area of business and commercial litigation. This treatise is published by the American Corporate Counsel Association and West Publishing Co. (four volumes, 6,032 pages and four diskettes of forms, $350).…