When to Call in Outside Counsel
In-house legal or compliance team budgets are not unlimited and Outside Counsel (OC) fees are expensive. There is no solution to this conundrum but, at a minimum, it is worth considering – and being able to articulate to management – when OC is necessary. Here are some key reasons corporations and other legal entities hire OC:
Representation: Courts will look to a legal entity representative who is subject to its rules and has the experience to participate effectively. Even in countries where in-house counsel are allowed to represent their employer in court, OC will maintain a crisper, safer separation between the legal entity and its officers, directors, and owners.
Protecting Privilege: The attorney-client privilege protects from discovery certain communications between legal counsel and the entity’s personnel. The privilege is best protected through engaging OC, especially in high-risk matters such as investigations. Remember that while some countries extend the privilege to communications with in-house counsel, many do not, including almost half of the European countries, India and China.
Expertise: OC counsel can help you to ramp up quickly on a new or niche area of the law, gauge risk, and survey the enforcement landscape. This works best when OC understands your business and has experience advising others in your industry.
Geography: Law firms with a global footprint are best able to manage investigations, litigation, or projects that are international in scope. Example: Drafting or revising a new policy so it meets the requirements of the EU Whistleblowing Directive as implemented in each EU country where your employees are located.
Objectivity: Calling on OC to for their view on a decision or strategy can provide real peace of mind. Being removed from internal politics and not having sipped the Kool-Aid® allows OC to view your company’s issues more objectively.
Extra Hands: Surprise, your in-house legal team is over-extended and feeling burned out. An associate ‘on loan’ from OC or an attorney contracted through a legal services provider can help share the burden. Be sure to also create a strategy to ensure this pricey fix is temporary.
Safe Hands: Some public relations nightmares may have legal consequences. OC with expertise in crisis management can make a key difference especially when brought into the crisis room early.
Independent Compliance and Ethics Attorney