6 D. Prepare and communicate outside counsel guidelines
Prepare outside counsel guidelines
A general counsel should draft a set of guidelines that govern retention of and relationship
with outside counsel. These guidelines set out in clear terms how clients and/or law department staff
should interact with outside counsel. Although a general counsel should draft guidelines adapted
to the unique needs and culture of their respective clients, guidelines should generally address the
following:
•;Engage with outside counsel – The guidelines should limit who can engage outside counsel
to those approved by the general counsel and restrict discussion of legal matters with outside
counsel to law department lawyers.
•;Conflicts of interest – A general counsel should develop a policy regarding outside counsel’s
representation of other clients with adverse interest.
•;Staffing matters – The guidelines should govern the number of outside counsel staff members
permitted to work on a particular legal matter and promote diversity among this staff.
•;Confidentiality – The guidelines should also restrict the dissemination of nonpublic
information.
•;Ethical conduct – There should be a policy regarding the ethical expectation for both in-house lawyers and the outside counsel with whom they interact.
•;Liability insurance cover – Depending on when the guidelines should require that outside
counsel maintain liability insurance
•;Managing litigation – A general counsel should lay down guidelines for file retention,
discovery and early case assessment.
•;Invoicing – There should be guidelines regarding invoicing procedures, budget
considerations, requests for rate increases, reimbursement of expenses, non-billable time, etc.
Once completed, these guidelines should be sent both to company
employees and outside counsel whom the company plans to retain for future
legal matters. These guidelines should also accompany any future engagement
letters retaining a firm for legal services. A general counsel should ask outside
counsel to sign and return the guidelines within a reasonable timeframe.
Adapted from
Establishing the In-
house Law Department:
A Guide for an
Organization’s First
General Counsel – 2012
