By John L. Watkins
Earlier this week, I saw an article in the Fulton County Daily Report in which an in-house lawyer was quoted as saying that she had to reduce costs from outside counsel, because otherwise it would come out of her bonus. Although I am sure that this lawyer is dealing with pressures, cost control and otherwise, that I can only imagine, what struck me was the implication of a somewhat adversarial relationship between the client and outside counsel, or, in this instance, between in-house counsel and outside counsel.
After many years in this profession, and despite the current economic conditions, I hope it has not come to that. It seems to me that the focus should be on providing needed legal services as efficiently as possible to the client, whether those services are provided by in-house or outside counsel. That result is best achieved when there is a strong relationship of trust and understanding between the lawyer and the client. Although the lawyer must earn that trust, it is also true that this type of relationship can only happen when the client lets the lawyer become part of the team.
In a team based relationship, the lawyer gets to know about the client's business in detail, the client's approach to legal issues, and the client's approach to business issues. As a result, the client receives added value without paying more. The client does not have to waste time telling me about their business or their overall goals, because I already know.
There are other ways that an intimate knowledge of a client's business adds value. For instance, I and many other business lawyers read the business press voraciously almost every day. If I see an article that I believe will be of value to a client, I forward it on. Although I try to do this for every client, it is certainly much easier to be attuned to articles of potential interest when you thoroughly understand the client's business.
The least satisfying relationships are, as I have written before, where a client treats the lawyer somewhat akin to a fire axe in a glass case: Break glass and use only in the event of an emergency. I guess some clients think they are saving money this way. In reality, in the vast majority of instances, the fire probably could have been avoided if the client had called counsel earlier earlier. Damage control is rarely very satisfying for anyone.
Other variations of the "fire axe" approach include not telling the lawyer all of the facts, or providing the relevant documents a drip at a time. Or calling with a "quick question" without giving the entire context. Even when one makes every effort to get the client to avoid these approaches, it is still sometimes difficult to convince people to do what is good for them.
Clients probably follow the fire axe and related approaches because they think it will save money. However, it is doubtful these approaches result in any real cost savings (much less optimal provision of legal services). It certainly makes it difficult for the lawyer to add any value beyond the narrow issue when used in such a piecemeal fashion. In fact, it is more difficult even to address the narrow issue when one does not understand the big picture.
Of course, relationships of trust and understanding do not happen over night. However, there are some things that both lawyers and clients can do to move the process along.
1. Lawyers need to communicate with their clients. I still hear about instances when lawyers do not return client calls or answer emails. Frankly, it is difficult to believe that this can happen in this day and age, but, apparently, some lawyers still do this.
2. Fee issues should be discussed up front and from the outset. If there is a reasonable mutual understanding about what the fees will be, there will rarely be a fee dispute.
3. If a client has a fee issue, the client should bring it up immediately. Perhaps there is a simple and reasonable answer for the bill. In other instances, an adjustment may be appropriate. However, just letting a fee issue simmer unresolved is no good for anyone: It undermines the client's trust in the lawyer, probably results in unnecessary personal stress on the part of the client or in-house lawyer, and cannot lead to resolution.
4. Lawyers do not always need to be on the clock. Of course, I do not bill clients for sending them business articles. I look for opportunities to take clients to lunch, which provides an opportunity for them to discuss their legal issues or whatever is on their mind off the clock. I often offer to provide educational presentations on relevant legal topics to clients at no cost. If I am attending an even that may be of interest, I try to make sure that clients are invited. Further, I almost always write a cover letter (no charge) that accompanies a statement for services rendered. If there has been any significant activity during the month, I usually try to include a brief status report in the letter reminding them about what was accomplished in the prior month. I use the word "reminding" purposefully; hopefully, the client is well-informed before the bill arrives.
5. Lawyers need to say thank you to their clients for their business and for their trust and confidence. Similarly, although I never think it should be expected, it sure does feel good when you have worked hard to achieve a good result, and the client says thank you for a job well done.
6. If lawyers are invited to become part of the team, they need to join the team. Lawyers should look for opportunities to provide added value, such as through articles, and, when applicable, through notifying the client of potential beneficial opportunities or business relationships.
7. Lawyers need to stay involved in their clients' work. One of the great frustrations that I hear in the legal press is that in-house counsel hate meeting with a "relationship" partner about a new matter, and then getting shuffled off to someone they have never met, often a young associate. This is probably the root cause of the rebellion at some corporate clients who refuse to pay for first year associate time. It does not have to be that way. Their are firms that eschew a leverage model and where the senior lawyers do most of the work, or at least stay involved. This approach brings experience and judgment to the relationship and also helps to assure that client expectations are met. One of the things that attracted me to Chorey, Taylor & Feil when I joined the firm in 2007 was that it follows this approach.
8. If a client is on a tight budget, involve the lawyer directly in the discussion. Although we always try to work efficiently, there still may be opportunities to do the work more efficiently. There may be work that can be identified as "optional." There may be work that the client may decide not to do, even though, optimally, it would be done. One caveat to the last point: If the client decides not to do certain work, the client sure should not blame the lawyer if it later turns out that it should have been done, and should also not object to an email from the lawyer confirming the decision not to do the work.
I do not have all of the answers. I know that hard economic times have strained corporate legal budgets for businesses of all sizes. But I cannot believe that, in either the long run or the short run, a confrontational approach between clients and their counsel or between in-house counsel and outside counsel will help anyone.