February 24, 2017

On Corporate Counsel’s Desk: A Primer for Outside Counsel Working with In-House Government Attorneys

Kristen M. Rectenwald

Serving as in-house counsel for the government is interesting and intellectually stimulating.  Although the landscape in a governmental practice is necessarily political, the opportunities to hone a particular craft are endless for an attorney unafraid to work hard, consistently expand her knowledge base and creatively problem solve.  In addition to providing legal counsel regarding large commercial transactions, an in-house government attorney is likely to counsel her client on numerous further matters, including regulatory compliance and legal questions related to procurement, the legislative process, contract development, dispute resolution, risk management, open records requests and media and public concerns.

Given the volume and complexity of most governmental construction programs, as well as specific legal inquiries that invariably arise during the departmental client’s day-to-day operations, in-house government law departments may require the expertise and assistance of outside counsel.  The following list, which is by no means exhaustive, includes several key points to consider when engaged as outside counsel by an in-house governmental law department.

Provide A Government Rate and Review your Bill.

Leadership within the governmental law department is aware that highly qualified, particular legal expertise is not inexpensive.  However, every department within a governmental body functions within a budget that is vetted internally and, most importantly, by the public.  Be prepared to provide a government rate for services.  In most cases, it will be required.

Following your retention, remain mindful that legal invoices are reviewed, in many cases by more than one attorney.  Before submitting a bill, spend time reviewing the applicable government guidelines regarding acceptable charges and take heed. For example, disclose use of a new attorney in your firm, not previously identified in the initial engagement, prior to listing such individual on an invoice.  Another rule of thumb is to consider how an invoice could be perceived publicly.  Legal invoices are subject to disclosure.  Keep in mind that each invoice, or that portion not subject to redaction, is available for public inspection.

Be Aware of Ethical Restrictions.

Prior to initiating representation, review ethical obligations that could impact you or your client.  In-house government attorneys who work with outside counsel are restricted from accepting gifts or other courtesies customary in the private sector.  Every government in-house attorney-client will certainly appreciate outside counsel who independently recognizes, and respects, ethical restrictions.  

Diversity is Appreciated.

Most governmental law departments strive to achieve a culture of diversity and inclusion where unique insight and innovative solutions are brought together by attorneys of varied backgrounds. In-house government attorneys welcome the opportunity to work with outside counsel who value diversity and approach problems from different perspectives.  Initiatives within your firm to promote diversity and inclusion will likely be noted and appreciated.  

Maintain Awareness.

Be mindful that in-house government attorneys must remain attentive to discussion of potential disputes, open procurements and details regarding future projects.  Collegial discussion of a unique legal question surrounding a future project is not possible without potentially disclosing an upcoming opportunity. Therefore, it is important to remain aware and sensitive to in-house government attorneys’ limitations for information sharing.

Communication is Key.

Although able and learned, outside counsel should remain aware that he is not always cognizant of political initiatives or policy concerns.  Prior to an in depth hypothetical discussion with opposing counsel, contact the in-house government attorney client. She is always in the best position to provide advice on the speed at which a transaction can be approved; the change, or lack thereof, in an internal policy; or why a particular “rule” is in place.  It is imperative that outside counsel work closely with the governmental law department. To that end, communication is paramount.

Additionally, written communication, even from outside counsel, is not always privileged.  Review relevant legal authority regarding open records and reconsider the decision to send that funny email.  Depending on the situation, perhaps you can discuss the legal issues over a phone conversation instead of creating an open record.

The opinions expressed here are solely those of the author.

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Kristen M. Rectenwald

Hartsfield-Jackson Atlanta International Airport, Atlanta, GA, Division 11 (Corporate Counsel)