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5 things you should know about . . . external counsel

Career Path
|Written By Danya Cohen
5 things you should know about . . . external counsel

Even the most plum of posts has its unexpected surprises, and sometimes its letdowns too. Many of us set our sights on a career before we have a real understanding of what the job entails. We can get wrapped up in a title, family pressure, or a romanticized version of a career and don’t always consider the less appealing day-to-day realities. The thrill of being an ER hero fades in the reality of diagnosing indigestion, the glory of being an educator yields to the reality of being a disciplinarian, and the esteemed role of being an advocate or a high-powered deal maker succumbs to the reality of being a service provider.

Maybe you didn’t go to law school with these same misconceptions. But even if you didn’t grow up watching Law & Order like I did, chances are that being a service provider did not come to mind when you thought of being a lawyer. And I don’t mean “service provider” in the altruistic sense of serving society, I mean it in the less appealing way of being at someone’s beck and call.

Yet, if you have spent time in private practice, being a service provider ends up being one of the more important aspects of the job. And for all the concentrated cerebral mass on Bay Street, it is often the client-service skills that will distinguish the exceptional lawyers from the pack. Unfortunately, client-service skills are not second nature for most. So for those of you just beginning to develop your client skills, and others who are making calls on client-management matters, here are five things in-house counsel want you to know . . . but would never say to your face.

1. Beck and call

In the hierarchy of traits in-house counsel seek in external counsel, it seems that responsiveness is close to godliness. A sluggish response time was the most common complaint among in-house counsel.

When work is farmed out to external counsel it can be because the in-house team lacks expertise in a given area, but just as often it is because in-house counsel lack the internal army to produce a quick turnaround. The expectation for a swift response is therefore high. As one in-house lawyer put it, “sometimes a quick response is more gratifying than getting the right answer.”

Consider that if in-house counsel have approached a law firm, it is likely because they have to get back to one of their internal clients, so your responsiveness will effect theirs. While a quick and conclusive response by phone or e-mail is best, nobody wants to sacrifice the quality of the advice. When a response will take longer, a timeline is expected to eliminate uncertainty. In-house counsel will know that the request has been received and is being considered.

A timeline is also helpful so in-house counsel have a chance to manage the workload and give better instruction as to what’s urgent and what can wait.

While responsiveness may be a quality that is quick to master, it seems it is also quick to fade. What many in-house lawyers reported is that responsiveness usually deteriorated as the relationship became more entrenched and comfortable. They’ve noticed.

In-house counsel also reported they do not want to have to ask when to expect a response, but expect to be told. Finally, though slaving associates don’t want to hear this, flexibility was also a popular item on the wish list. Quick, proactive, and flexible. Those qualities will apparently get you to heaven as far as your client is concerned.

2. The medium is the message

It seems that second in importance to when the advice is delivered, is how it is delivered. Each client will have his or her preference — discovering and delivering on those preferences can mean the difference between a dispensable service provider and a seamless extension of the in-house legal team.

Consider whether the advice warrants an answer in writing or whether a phone call will do. If a written response is warranted, determine whether the client needs a memo response, or if an e-mail is sufficient. Several in-house lawyers commented that memos are rarely useful and that a pointed e-mail response is preferred in most cases.

When responding by e-mail, ensure the answer is complete before pressing send. A big gripe for one in-house lawyer is when a written answer is delivered in a successive string of e-mails as opposed to a comprehensive single e-mail. Given that he wears many hats during the day, he emphasized the importance of dealing with an issue at once and not becoming sidetracked by an interrupted and protracted response.

Certainly there will be cases where liability warrants a written answer but most in-house lawyers I spoke with stated they much prefer a phone call, commenting that a long memo is often more for the benefit of the law firm than the client. One in-house lawyer explained that she appreciates a quick phone call followed up by an offer to summarize the information in writing.

Whether your client expects a response by e-mail, phone, or carrier pigeon, nobody expects telepathic client service. Apparently the magic of superior client service is simply asking your clients what they would like, tempered with some good judgment. If you’ve set out instructions for how a response should be delivered, you are also protecting yourself from the potential minefield of unspoken expectations.

As one GC put it, when you consider that you can get the same legal advice from anybody, the customer is always right and external counsel should never underestimate the company’s style and how it likes to get things done.

3. Passing the torch

Change can be hard, especially for clients who have come to rely on a particular lawyer as their trusted external legal adviser. But in a resurging economy where lawyers are enjoying a less viscous market, change is inevitable. Even the regular rhythm of law firms that continually push work down will disrupt the client relationship to some extent. Yet, despite the inconvenient habit of lawyers to come and go, it seems law firms have not perfected the art of succession planning and file management.

In-house lawyers want consistency in the event lawyers move on or are shifted internally. In the simplest terms, this means getting plenty of notice regarding new members of the law firm team and always knowing who is in the driver’s seat.

One in-house lawyer explained that she found it aggravating when there was a lot of back and forth in file management to accommodate vacations or absences on the law firm end. If a file was passed over to a new lawyer to cover a critical period, she preferred to have that same lawyer involved going forward instead of passing responsibility around to placate firm politics.

The more challenging task in succession seems to be ensuring the new lawyer has the appropriate context to deal with legal issues. Getting up to speed on salient points of the business, and industry in general, will affect a new lawyer’s ability to deliver the same quality of service as his or her predecessor. One in-house lawyer stated that he appreciates it when new lawyers make an effort to set up a quick briefing session with him.

That being said, the expectation is that he will not get billed for this time. Receiving bills that reflect the time a new lawyer spends getting up to speed was a major grievance among in-house lawyers. As an associate, you have no control over billing and it should not affect the time you need to familiarize yourself with a new client. But it may be wise to point out this time to the client-relationship lawyer so he or she can treat it appropriately.

4. Business 101 for lawyers

Another sore spot for in-house counsel is when external counsel do not “get” the client’s business. Apparently the trick to being a good lawyer is to stop thinking like one. For those who are not naturally business savvy, or didn’t get anything useful out of their MBA, rest assured that simply making efforts to learn about the client’s business will still get you far.

In-house lawyers acknowledge they are not blameless for the lack of understanding, but certainly put the onus on external counsel to make efforts to educate themselves. One general counsel found it helpful to send marketing materials to his external counsel and conduct a tour of the facilities for them. He explained that having external counsel meet people other than the lawyers, including senior management, was invaluable. Several other in-house lawyers echoed the feeling that external counsel cannot get the complexity of their business until they see it on the shop floor.

Incidentally, initiating a gesture like this also goes a long way in terms of building the relationship. Understanding the client’s business is also crucial to being able to deliver efficient and relevant legal advice. Without a meaningful understanding of the business, it is impossible to put the legal advice into context. Often, the advice is a small piece of the puzzle in terms of what the client is trying to accomplish. Without this perspective, it is easy to provide misguided advice like a 40-page memo on an issue that was nothing more than a passing concern for the client.

Several in-house lawyers expressed frustration at the overly academic and cerebral answers they sometimes get from external counsel when what they want is rapid-fire, business-oriented advice. In part, the ability to deliver this type of advice relies on confidence — the ability to make a call as opposed to providing a list of impractical scenarios. In the end, clients know they have to make the ultimate call but they still appreciate a business opinion rather than a memo born of concerns over liability.

5. Bills, bills, bills

Unfortunately, legal bills are thought of with the same fondness as say, post-colonial military dictators. While the fees themselves are mostly to blame, in-house counsel’s frustration has more to do with poor management of bills as well as expectations by law firms.

In-house lawyers typically find a discrepancy between the expected and actual cost of the legal work they outsource. The gap is often accompanied by confusion as to what work was actually done, which is a comment that relates not only to billing, but also docketing practices. One GC said he often has to take up his bills with external counsel that almost always results in a concession by the law firm. He said there are even instances where the law firm has admitted to not properly reviewing a bill before it was sent out.

Another lawyer described her frustration over getting a steep bill after a document was walked over to court by a senior partner. With respect to a law firm that she sends a great deal of work to, the expectation was that there is a level of goodwill that would prevent being billed for things like a $1,000 stroll.

Perhaps the biggest complaint had to do with surprises in terms of the staffing of a file and the scope of the advice delivered. One GC said he often received bills that included the time of extra associates, or time spent looking into additional questions not discussed in advance. Similarly, another in-house lawyer expressed her frustration after being assured that a lawyer could do work that fell outside of his or her immediate expertise, only to receive a bill that charged for the lawyer’s entire education in that area. Quite frankly, she explained that she could do the same thing for free.

Although the customer is always right, most in-house lawyers acknowledged it’s a two-way street and they are also responsible for giving better instruction to avoid billing ambushes. Bay Street is not going pro bono any time soon and traditional billing models are here to stay but it seems that a little bit of goodwill, common sense, and communication will go a long way — really, the foundations of any good relationship.

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