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June 28, 2021

Ten Lessons About Great Outside Counsel from My Time In House

Corporate Counsel

I share these insights for the benefit of outside lawyers who continuously seek to improve client relationships, and in-house counsel who recognize that success requires identifying the behaviors that they value in the lawyers they hire.

A decade ago, I moved from private practice to BP p.l.c. after the company's accident in the Gulf of Mexico. My reasons were twofold: I am drawn to helping clients through their most difficult challenges, and I believed that going in house would help me become a better lawyer. I returned to private practice with ten observations about what makes the most effective outside counsel. I share them for the benefit of outside lawyers who continuously seek to improve client relationships, and in-house counsel who recognize that success requires identifying the behaviors that they value in the lawyers they hire.

  1. Win. Win the lawsuit, close the deal, end the investigation. While this seems obvious, law firms sometimes lose sight of their main purpose. Corporate clients have many metrics and priorities, but those things do not matter unless you win. No one will applaud you for being 5% under budget while losing the bet-the-company case. Understand how your client defines a true "win" and deliver it.
  2. Understand your client's business and how you fit into their objectives and challenges. Executives and in-house counsel are managing a vast spectrum of issues, of which your matter is one small part. Effective lawyers understand their place in the big picture. For example, a client under investigation wants it over, but concurrently needs to grow, secure financing, maintain relationships, and the like. Lawyers who focus on the whole, not just their part, add far more value. They also connect with smaller gestures, such as avoiding nonurgent calls just before quarterly results, or not wandering into a meeting oblivious to a major corporate announcement or share price drop.
  3. Constantly seek to add value as a trusted advisor and partner. Great lawyers do not simply chuck advice over the fence to their clients. They pick up a shovel alongside clients and figure out how to implement it in a way that adds value to the business. "This is what the law requires" may be accurate, but "here is how to make this work in a way that promotes your objectives" is much better. These lawyers earn a seat at the table through relentless focus on adding value to their clients' businesses.
  4. Offer your opinion on what to do, not just options to pick. Many lawyers present their clients with options and leave them with the hard decision of picking one. Give them your judgment on what you would do. Your client may disagree, and that is ok; you will still help them reach a better decision by taking a reasoned view.
  5. Be resourceful in achieving business objectives. Some lawyers default to "no" when a client asks if something challenging is possible. But as J.P. Morgan reportedly observed long ago, "I [do not] want a lawyer to tell me what I cannot do," but "to tell how to do what I want to do." Great lawyers exhaust all options before they get to "no," looking creatively for ways to achieve the client's goals. Clients are more willing to accept a rare "no" from these lawyers because they know it comes from diligence.
  6. Focus on material risks and have courage to say what is not. Lawyers are trained to highlight even remote risks. The best lawyers do this while focusing the client on what is really important. It takes judgment to separate the likely from the possible. Understanding a law's real-world application to a business and the likelihood and impact of its enforcement will help clients prioritize resources. A useful test is: "If I owned this company and every dollar spent was mine, would I focus on this?"
  7. Be a paragon of discretion. Lawyers help clients at highly sensitive points in their careers and lives. One of the greatest privileges of a lawyer is to be entrusted with a client"s confidences, and few things are more damaging to a lawyer's reputation than inappropriately disclosing them, whether by loud calls in an airport, carelessly discarded files, or indiscreet war stories after drinks.
  8. Insist on feedback. Great lawyers get actionable client feedback on how they can improve. They go beyond passively asking "how are things going" or surfacing only issues that have boiled to dissatisfaction. Rather, they press for specific feedback on what could be better. They do not avoid known issues, but raise them proactively with a proposed solution.
  9. Partner with in-house counsel. In-house counsel are not just there to review invoices and serve as a mailbox between law firms and the company. They have unique insights on the client's business and are an invaluable partner. Great lawyers purposefully involve them in ways that lead to better outcomes, and are responsive to their communications, requests, and ideas.
  10. Communicate succinctly. Brevity takes effort but is critical. Executives often make billion-dollar decisions that chart the course of companies on the basis of a brief memo. Sometimes clients need a long exegesis, but more often they are looking for a succinct, practical answer. What should they do, and what are the costs and risks if they do not?

In my experience in house, the most effective outside counsel consistently demonstrated these ten behaviors regardless of their practice area, location, or background. I encourage outside and in-house counsel to talk openly with each other about what behaviors are on the latter's list. All of us aspire to be capable lawyers who serve our clients well, and a shared understanding about what in-house counsel value and outside counsel are delivering is necessary for both to represent their client effectively.

Reprinted with permission from the June 28, 2021 edition of the Corporate Counsel© 2021 ALM Media Properties, LLC. All rights reserved. Further duplication without permission is prohibited, contact 877-257-3382 or reprints@alm.com.

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