Working with MyCompany PLC – a charter for external counsel

July 9, 2015

This guide is not a replacement for our retainer letter.  It does not form part of our legal relationship.  Instead it sets out guidance on what I think characterises good external counsel so that our working relationship can be as successful as possible.

  1. Time, cost, quality.

These three characteristics of a project, (originally time, cost, output – correct scope, correct quality) were identified by Dr Martin Barnes in 1969.  There’s nothing unique about law in possessing these characteristics, it’s like any other activity.  The principle is that any activity embraces all three of these factors, but there will always be one factor which must be compromised in service of the others.  So for example a high-quality piece of work conducted in a short timeframe comes with a price tag; lowering the price tag reduces the quality or lengthens the timeframe for delivery.  Which two do I want?  Don’t guess!  Talk to me, to make sure you know which two are most important for this piece of advice.  And in complex matters the answer may be different in different parts of the matter, or change as the matter progresses, so please check in regularly.

  1. Time – deadlines aren’t aspirational

If we agree a time for a piece of advice, there’s a reason I want it by that date – so that’s when I want it.  If you miss the deadline, your advice may be too late to be relevant.  I don’t want it held up because a partner is reviewing it or it needs a final turn when the deadline passes. And I don’t want it held up because you are busy with other aspects of the matter. These other aspects may be less time-critical to me and you should let me know they will prevent you hitting the deadline, so that I can tell you what is OK to move.

You may have had an associate do a first draft of a document or piece of advice ready for a partner to review.  You should be confident in letting me see the draft so we can work on it together and hit the deadline.  I won’t think less of you as a firm if the associate’s work isn’t as refined as if the partner had done it.  Just tell me that’s the route you have taken.  I’ll think more of you for having appreciated the need to put the time task first and to find a way to enable the deadline to be achieved collaboratively.

  1. Cost – and pricing your work

Don’t pad the bill.  There will be no second chances. And I don’t want to be billed for work which I didn’t ask for, or which is not necessary to fulfil the work I have asked you to carry out.

Our arrangement is only going to work if it makes economic sense for both of us.  Whether you charge by the hour or on a fixed fee basis, it amounts to the same thing – we both have bills to pay, so our billing arrangements have to meet those requirements.  Whatever our fee structure, there will be expectations set and as we progress through the matter, those expectations may get challenged.  You may feel able to keep pleasant billing surprises until the end of the matter, but if the expectations you set for the cost of advice are going to be exceeded, I want to know early enough to give me a choice – whether to get that piece of advice (serve time and quality) and bust my budget, or to compromise my advice and keep to my budget.

For my part I won’t nickel and dime you, and I will make sure you get paid properly.

  1. Quality – don’t just throw it over the wall.

I am sure anything you send me will be good, well-considered and informed legal advice.  But please remember I haven’t asked you to provide legal advice for my education.  I’ve done so in order to help me solve or progress a business issue.  So take a moment to think about what I’m going to do with the advice when I’ve got it – and be ready to ask me if you are in any way unsure.  That way if I’ve got a deadline coming, you won’t purely focus on hitting any deadline we’ve agreed, you will also think about what you need from me and my colleagues ahead of that deadline so that you ask us in good time.  And you will provide your advice in a way (its format and content) that enables me to make the best use of your advice.

What you are experts in is providing legal advice – which is a different focus from mine, which is to secure the best outcome in a given situation, and to which your advice is an input not the output; it’s a means not an end.  The smaller we can make the gap between your legal advice goal and my use of it to further my goal the better we will work together.

  1. I know you know

I asked you to act in a given matter because I knew from the market, recommendations or my own knowledge or prior experience that you have an expertise in the area.  So you don’t have to spend lots of time telling me about the reasons for your advice, just to persuade me that you know about the area.  There will be cases when you need to make sure I know the legal background well enough to make informed choices in the light of your advice, and I accept that you may need to set out the factual background on which you are advising in some cases, but you should never feel you have to recite the background just because you are concerned that the advice you are giving may be negligent and you need to paper your file for that instance.  If you base your advice always on your failing to get it right, we’re both in trouble.

  1. Staffing the case

I expect you to staff the case in the way that best meets my requirement, not your billing targets.  I also know you’ve a business to run and part of operating that business means training people on the job.  I’m very happy to have newer lawyers working on my cases, but they must be supervised appropriately (somewhere between being smothered and allowed to run wild).

On a related point,I don’t need you to show me how committed you are to my organisation by setting unnecessary deadlines for yourself.  If I want a piece of work on my desk by 9 a.m. on Monday morning, I will ask you.  Don’t promise it for that day if I haven’t asked you – especially as I know it won’t be you, but a bunch of hard-pressed associates who will lose their weekend meeting the requirement.

  1. Building relationships with my colleagues

I expect you to build strong relationships with my non-legal colleagues.  That helps me when we have difficult advice to give, and it helps you secure the relationship with the organisation not just me.  But your primary relationship with the organisation is held through me and I will not accept your going behind my back to have my colleagues change the way in which you and we work together.

  1. Fixing holes

You will be carrying out work for us some of which will be highly important and complex, and you may get things wrong.  So might I.  We need to have the relationship where we can be open and frank about these occasions and where we can be grown-up and constructive about putting it right.  My view is that you learn the most about an organisation by seeing how it puts things right when they have gone wrong.

  1. Let’s both make each other look good

We both do things which are difficult.  Not everyone we work with will like what we do, just because of what we are doing.  It helps me if you do well, because part of my role means deciding where to get external counsel involved, which counsel to engage and managing them once appointed.  So if you get it right – including in the ways set out in this document – I am fulfilling my role, so it is in my interests for you to look good.  And it’s in your interests too; if I look good then it increases the trust and responsibility placed in me and that gives me the greater freedom to appoint you again.


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