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July 27, 2017 Practice Points

Providing Clear Advice

Why do in-house counsel hire outside counsel?

By Taylor Brown – July 27, 2017

Why do in-house counsel hire outside counsel? We’re lawyers too after all; unlike the general public we are theoretically qualified to handle many of the matters that come to us in a professional way. However, we are like the general public in one important way:  We’re not subject-matter experts. Even though I have an area I specialize in, as in-house counsel I’m still expected to be something of a generalist. When I retain outside counsel it’s typically to provide some expertise I lack.

That means I need my outside counsel to provide clear, digestible advice on the way forward. I’ll never have the time or bandwidth to become an expert in your topic. Even given the time, it simply wouldn’t be worth the resources it would take when you are available for hire. That is not making a case for me to remain ignorant; I do need to understand what’s going on. Simply hiring outside counsel and then “checking out” neglects my duties to my client to safeguard its interests and provide sound advice. If I’m unaware of what the considerations and risks are in the matter then I would be completely unable to fulfill that role. Additionally, as the representative of the company, it is my place to make the final decision on strategic and even some tactical considerations.

Often, the relationship between in-house and outside counsel strikes just the right balance between providing simple advice and keeping the decision-making authority in my hands. I also understand that your enthusiasm for your specialty is a big part of why you chose your practice area, and I expect there to be some verbal overflow in our discussions. Unfortunately, it can also go down a rabbit hole that wastes time and creates frustration. The well-intentioned but misplaced effort to educate me into your level of expertise is one possible scenario. There have certainly been times when I’ve asked outside counsel to give me a primer on some area of law I don’t understand, and it has always been useful when they do. There are reasons I request this service though; it may be that I have multiple cases involving similar problems, that I’m taking on some new and daunting project, or that there have been some shifts in how my company is doing business.

The less-attractive scenario occurs when outside counsel is trying to show off its expertise by expounding on the theoretical underpinnings of the topic. There are certainly elements of that underlying detail that may be relevant, such as whether there’s a circuit split or recent development in the case law, but those things should be easily and quickly summarized as possible risks to your suggested course of action.

In either case, unless I’ve asked for that deep level of exposition, it’s not helping. It’s more likely to confuse me than help me. People often engage in that sort of display to build up their own qualifications and importance. So, if you consistently leave me less certain than when we started, or engage in obvious self-aggrandizement, I’m more likely to remember the negative aspects of our interaction than the positive ones.

The best thing you can do is give me clear, concise advice and options. Certainly point out the dangers and advantages of each approach, but please end with a recommendation so that I can make the best use of your knowledge and experience to make the final decision.

Taylor Brown is assistant general counsel with PAE Government Services Inc.

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