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Factors to Consider in Hiring Outside Counsel

December 21, 2022

For example,

As advisor, a lawyer provides a client with an informed understanding of the client’s legal rights and obligations and explains their practical implications. As advocate, a lawyer zealously asserts the client’s position under the rules of the adversary system. As negotiator, a lawyer seeks a result advantageous to the client but consistent with requirements of honest dealing with others.

Many lawyers are highly qualified to perform these varied roles and are eagerly seeking good clients. With a wide world of choice, what factors should inform your decision in hiring outside counsel?

  • Expertise. You will undoubtedly receive referrals from colleagues and related professionals. But also seek to identify leaders within the desired field of expertise: those who are writing and speaking on relevant topics, who lead the specialty bar associations and sections, and who have established reputations among their peers, associated professionals, and the courts.
  • Communication. Communication is key to every successful relationship, and you will want to know how the lawyer proposes to keep you informed. Is the lawyer accessible? Will the lawyer initiate regular updates? Does the lawyer have a good sense of when you need to be involved in decision-making and when you can be spared the minutiae? Is the lawyer capable of synthesizing the legal analysis and speaking (and writing) in plain English?
  • Timeliness and organization. It is important to know how the lawyer will organize the project. What approach will the lawyer use to identify issues, gather information, and make decisions? Will enough time be built into the schedule to ensure timely turnaround and avoid last minute emergencies? Does the lawyer have the resources to properly and efficiently staff the project at reasonable rates? Will you have multiple points of contact should issues arise when the lead attorney is unavailable?
  • Decisiveness/Judgment. In many respects, lawyers operate in a sphere where the answer is neither black nor white but a gradient of risk/benefit possibilities. While decisions in this context might ultimately depend upon the client’s business judgment, such decisions can rarely be made without clear legal guidance. Expect disclaimers but when the lawyer’s opinion is requested, you will want an adviser who is capable of being decisive.
  • Data Security. There may be projects that require your lawyer to access company and customer data. Privacy and security laws are stringent; the consequences of a data breach can be catastrophic. Choose a lawyer and law firm that have adopted leading edge protections and have a plan for immediate remedial action if a threat occurs.
  • Industry Knowledge. It is natural to want a lawyer who has ready knowledge of your industry, but that perfectly packaged person may not be available. Seek assurances that your lawyer is willing to invest the time necessary to learn the intricacies that make your business unique and to remain updated on advancements in the field.
  • Feedback and Responsiveness. Attorneys should want to know whether they are meeting (and hopefully exceeding) client expectations. Accordingly, attorney-client relationships benefit greatly when clients are empowered to ask questions, make suggestions, and provide feedback. Gauging the candidate’s inclinations along these lines is an important consideration when seeking a long-term relationship.
  • Professionalism/Likeability. When a lawyer acts on your company’s behalf, the impression he or she leaves with others reflects upon your company. Whether appearing before a judge or jury, negotiating a deal with other lawyers, or interacting with industry participants, you should be able to trust that your lawyer will be professional and courteous at all times. In the end, you need to be satisfied that the lawyer possesses the aggressiveness needed to accomplish your goals but does not exhibit the type of unnecessary contentious behavior that leads to poor results and higher fees.
  • Full-Service Capability. It is frequently more efficient to retain a lawyer with law firm capabilities that are readily available to address issues that might arise outside the lawyer’s own area of expertise. You can assume that lawyers working together within a firm will result in cost savings that would not exist if an outside lawyer must be consulted. Be prepared to ask about the areas of expertise within the law firm, particularly potentially related areas.
  • Contented Lawyer. People who are content in their chosen field are more likely to work harder and more creatively than those who have had enough. So, for added measure, choose a lawyer who still enjoys the day-to-day practice of law, considers it a privilege to represent clients, and is dedicated to the high standards the profession embodies.

This is certainly not an exhaustive list and other considerations will likely come to mind when the evaluation process is underway. Investing the time and effort up front to select the right lawyer is the best way to achieve a productive, long-term relationship.

Preamble, Michigan Rules of Professional Conduct.

About the author:

Headshot of Joanne Swanson of Kerr RussellJoanne Geha Swanson has more than 30 years of experience as a litigator and appellate attorney. She provides strong, rigorous advocacy to clients who must either enforce or defend their rights through litigation. In addition, she counsels clients on how to avoid litigation and resolve disputes without turning to the courts in the first place. Her civil litigation practice primarily involves complex commercial disputes, antitrust, class actions, business torts, legal malpractice and other related matters.

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