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3 Concerns When Picking Outside Counsel

By William Peacock, Esq. | Last updated on

You finally made it. You landed that cushy in-house gig for a hot Silicon Valley company. Your exuberance was soon tested, however, when your company was slammed with two IP infringement lawsuits and a sexual harassment claim within the first week.

You can't handle this yourself, nor should you. You need outside counsel with experience in these areas. The problem is, who do you choose?

Practice Areas

You might need a firm with experience in intellectual property disputes and employment law. Or, you might be a generic nutritional supplement manufacturing company that mainly has labor issues and no IP concerns whatsoever.

The right firm for you will have experienced counsel available for all, or most, of your legal concerns, past, present, and future. Of course, this probably means you are headed to BigLaw territory - which won’t come cheap.

Another great consideration, courtesy of the Association of Corporate Counsel, is to consider whom else the potential firms represent. Do they represent plaintiffs in employment matters? That might be an issue. What about your competitors’ outside counsel? Take them off the list too.

Alternative Fee Arrangements or Billable Hours

How do you control the fees? Consider firms that are more open to flat-rate or alternative fee arrangements. We are all pretty familiar with the standard billable hour. It incentivizes slow, plodding work. Instead of the status quo, more in-house attorneys are instead turning to other fee arrangements.

Before you begin an ongoing relationship with outside counsel, broach the issue of flat fees or incentivized fee arrangements. While some firms may be hesitant to switch full-time to flat fees, as it can be difficult to predict the time and expense of certain matters, a fee structure with incentives might be more appealing to both parties. Essentially, firms are given a bonus when tasks are completed ahead of schedule or when cases are settled without substantive litigation.

Pick the Lawyer, Not the Firm

Of course, even the best fee structure won’t make up for a mistake-prone, disorganized, and inattentive attorney. While most BigLaw firms have filtered out the dead weight by now, there is always the chance that a relic partner might have a practice style that doesn’t fit with your needs.

If you choose a firm instead of a lawyer, you might get stuck with that relic. Instead, research the firms’ attorneys. Are they a SuperLawyer? Do their peers respect them? What about consumer complaints online. Best of all, check with fellow in-house counsel at other similar companies.

Once you’ve settled on a lawyer (or three), ACCA advises that you make sure your written agreements reflect your choice of counsel, as well as your ability to approve any changes.

(Disclaimer: SuperLawyers is a super-great product of a super-great company - Thomson Reuters. We are also a super-great product of that same super-great company. Super.)

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