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September 2, 2010

In-House Counsel Tell Outside Lawyers: Clarity, Common Sense Build Strong Relations

The financial services industry spends billions of dollars annually on legal assistance to supplement the work of in-house counsel.  Firms that want to be invited back year after year would do well to heed the advice from a seasoned panel of in-house attorneys from the likes of Alliant Credit Union, Bank of America, Wells Fargo, Mechanics Bank and PNC:

“Help us do our jobs,” said Sandy Shatz, in-house lawyer at Bank of America and lead moderator at the ABA Annual Meeting panel on “The Care and Feeding of Your In-House Counsel.”

The panel unanimously agreed that a pet peeve for them is surprises. Shatz said he never wants to hear, “The deposition is tomorrow.”

Meredith Ritchie, in-house attorney at Alliant Credit Union, echoed that sentiment about a deposition notice she received. “We were not forewarned.  An executive had to fly to another coast.”

In-house counsel also do not appreciate outside counsel doing work that was not requested.  For example, Heather Thayer of Wells Fargo recounted the time outside counsel phoned to tell her that they had called the Federal Reserve on her behalf.

“Going to regulators without instruction to do so is not a good idea,” said Thayer.

Neither is underestimating the cost of the case at hand.  “You cannot tell me it’s a $300,000 case the whole time, and the day before the mediation tell me you need $700,000 to settle the case,” said Shatz.

“When I get the bill and see that I got billed for work I didn’t authorize—that’s not good,” said Dick Stephenson, in-house counsel at Mechanics Bank.

In-house lawyers want outside counsel that understand the culture of the hiring company, and can provide clear, concise, timely information.  Panelists also shared that outside counsel should:

  • understand the delicate nature of putting certain information in e-mail and what that might do to attorney-client privilege;
  • give strong advice, but not cross over into decision-making;
  • have the foresight to give plenty of lead time so that in-house counsel have the necessary days to absorb the information (for example, 30 to 45 days notice for a settlement conference);
  • provide strategy and a detailed budget with all phases of litigation and all options; and
  • spell correctly.

That’s right—spelling is a pet peeve of in-house counsel. If you want to be hired again, spell in-house counsels’ names and companies’ names correctly. If you want to receive a return phone call, speak your number slowly.  And, don’t cram too much information into a voice mail.

“Did it go well? Did it not go well? And when do we need to speak next?” said Michael Flynn of PNC, describing the details he needs to hear to determine the next steps of a project.

But, he also advised outside counsel, “Call more often than less.  I’d rather hear more often, than not.”

Flynn gave an example of how packed his work days are: he has 60 hours per month of recurring meetings inside the company.  Even on days when he is traveling and people know he is officially out of the office—such as when he traveled to San Francisco for the ABA Annual Meeting—he “received 54 substantive e-mails.”

Speaking of e-mails, the in-house counsel panelists advised crafting e-mail subject lines so that they accurately reflect the content of the message without putting non-public, personal information in that line.

Do not BCC anyone, they advised.  Further, when writing a long e-mail, start with a short one-paragraph executive summary. Remember to put deadline requests—or whatever needs action—at the top of the e-mail.

Another tip: When starting an e-mail, consider more descriptive ways than just the case name to identify the subject matter at hand. Additional descriptors, such as a distillation of the litigation theme or relevant key phrases, may better jog the mind of the message recipient.

These tips may seem minor, but they are worthwhile to busy in-house counsel. Panelists agreed that their days are so crammed with legislative issues, technical questions, marketing requests, compliance issues, business strategy sessions, questions from the CEO, contract drafting, HR issues, consumer laws and editing requests—just to name some of their daily tasks—that they need outside counsel that takes the time to “understand our business needs,” said Shatz.

When ending a legal matter, panelists suggested that outside counsel develop a concise plan of action.  They should send a letter clarifying whether the matter is over, or if it can be appealed.   If it is over, the letter of explanation should be followed the next month with a detailed bill.

“The Care and Feeding of Your In-House Counsel” was sponsored by the Business Law Section.