What are the key characteristics of outside counsel that make likely a synergistic relationship? Are you looking for an attorney to plug the occasional hole or are you seeking someone with whom to collaborate on broader employee relations goals? Do you prefer an attorney who continually stays in touch? Or do you prefer someone who "gets it" and doesn't bother you unless: (a) something new and unexpected comes up; (b) you're at a critical crossroads; or (c) to tell you, "mission accomplished"?
What's your philosophy or approach regarding legal risk and business considerations? Faced with multiple options, some clients accept a greater degree of risk than others if there's an organizational benefit for doing so. For example, going ahead with a high-risk employee termination based on an assessment of the cost of keeping that person employed. When it comes to weighing business needs and litigation risk, are you more of a risk taker, risk neutral or risk adverse?
Establishing Mutual Expectations
After you've made your selection, a key to a successful relationship will be establishing the mutual expectations of the parties upfront. Are you looking for just an occasional, ad hoc relationship or are you looking for an ongoing relationship where outside counsel assumes some of the responsibility for ensuring compliance and preventing claims such as through audits, troubleshooting assessments or participating in workforce training? Discuss your service expectations specifically.
Payment expectations should be discussed candidly as well. The most commonly used billing model is hourly. However, many employers and L&E attorneys have agreed to alternative billing arrangements such as a monthly fixed fee for compliance and troubleshooting advice. This means you can call or e-mail your attorney without the "meter" automatically going on, or at least not until a certain hourly cap has been met.
Other Important Considerations
If you ask a question requiring legal research, how much work can be done without your advance approval? Under what circumstances and conditions does your attorney have the ability to delegate work to others in his or her office?
These questions become even more important when you're working with L&E counsel on claim defense. The potential for "ships moving apart in the night" is much greater. It therefore behooves you to have an upfront discussion of services to be rendered and costs, budget, claim status reporting, and litigation risk analysis. And that you continue having these discussions on an ongoing basis.
Litigation Goals and Philosophy
Important, but often neglected subjects of discussion include litigation goals and philosophy. If you are silent on the subject, many litigation attorneys will assume the goal is to "beat the other side" and the philosophy is "to do so by all available means."
For some employers, that's fine. Scorch the earth! For others, it's not. They want an L&E attorney who not only has the litigation chops but appreciates the cost and toll even a successful defense will exact on an employer. As a result, these attorneys continually look for early resolution opportunities.
Proactive communication about expected service, costs and results will set the stage for a successful attorney-client relationship.