October 2001

Book Review
Successful Partnering Between Inside and Outside Counsel

by Barrie Althoff

Good things sometimes come in small packages. But they also sometimes come in big packages. Or really big packages. At 6,032 pages (four loose-leaf volumes) and four diskettes of forms, Successful Partnering Between Inside and Outside Counsel is a really big package. Sponsored by the American Corporate Counsel Association and published by West Group, the book explores how inside and outside lawyers can work together to most effectively provide legal services to their common corporate clients. It is valuable for outside lawyers wanting to better serve, retain, attract and understand corporate clients, and for inside lawyers wanting to more effectively manage and retain outside lawyers, and work with them as partners to solve their mutual clients' legal needs.

This package is full of practical insights into how to understand, interpret, create, foster and improve the relationship between inside and outside corporate counsel. It also has numerous practical checklists and useful forms. The book embodies its title. The 80 chapters were jointly written by numerous corporate general counsel and senior law firm partners. The impressive biographies of the authors (including several from Washington) alone take up nearly 130 pages. Chapters usually reflect practical perspectives and insights from both inside and outside lawyers. If a work as large as this can be said to have an underlying theme, it may well be that for partnering to be successful there must be good and frequent communications between inside and outside counsel based on their mutual respect for one another and their mutual understanding of their separate roles.

No one is likely to read the work straight through, nor was it apparently intended as such. Rather, the work's table of contents should be relished like a menu in a fine restaurant with its promises of apéritifs, entrées, full-course meals, desserts, coffees, wines, and so on. The reader may choose the chapter best suited to the perceived hunger for knowledge.

Relishing the table of contents of this book, however, may lead to intellectual indigestion since often there is no clearly perceived sense of organization in the arrangement of its 80 chapters. Often it is not clear why any particular chapter is placed where it is or how the various chapters conceptually interrelate with one another. There are no major topic subdivisions of the book; rather, chapter one is followed by chapter two, which is followed by chapter three, which is followed by chapter four, all the way to chapter 80, without there being any indication of what the "big picture" is that several chapters may be addressing. It is as if a restaurant menu intermixed salads, desserts, beverages, apéritifs, etc. Even where adjacent chapters are related to one another, there is nothing that alerts the reader to that fact. For example, nowhere is the reader told that chapters 30 through 38 generally relate to regulation of the legal profession (lawyer ethics, professionalism, regulation, licensing and training, attorney-client privilege, attorney work product, and multidisciplinary practice), with chapter 35, which relates to corporate internal investigations, inexplicably stuck in the middle.

The book should thus be viewed as a collection of 80 very good essays on the common theme of partnering, rather than as a structured and cohesive study of partnering. A detailed index in the final volume helps readers locate topics of interest. I hope that a later edition of this work will rearrange chapters by their underlying common themes, and break the book into a number of logical principal topic headings.

The range of topics covered in the book is both diverse and immense. The first volume addresses mostly management of legal services. It has chapters on whether a matter should be handled by inside or outside counsel; selection of outside counsel; requests for proposals, bidding and presentations; marketing; fee arrangements; engagement letters; budgeting; evaluating legal risks and costs; communications; billing; expenses and disbursements; the relationship between the legal department and the corporation; management of law departments; staffing of law firms; managing legal research; the role of local and specialized counsel; use of coordinating counsel (usually to coordinate major litigation); and international work and representation of European companies in U.S. litigation.

The second volume continues discussion of the management of legal services and also addresses lawyer regulation. It covers use of contract lawyers; representing clients with insurance; specialized approaches to outsourcing and insourcing legal work; technology; management of corporate documents; benchmarking and evaluation of performance of counsel; ethics, conflicts of interest, attorney-client privilege and attorney work product; outside counsel in other than law firms (multidisciplinary practices); internal investigations; licensing and admittance to practice; professionalism; continuing legal education and training; diversity; operating a small law department; large companies with small legal departments; quality management and project management; civil justice "reform"; joint legislative and regulatory lobbying efforts by inside and outside counsel; and opinion letters.

The third volume continues coverage of management of legal services, and begins coverage of substantive areas of practice and litigation management. It includes chapters on corporate governance; compliance; transactions; information technology transactions; joint ventures; valuation of a business being acquired; securities; commercial finance, workouts and bankruptcy; employee benefits; advertising review, clearance and challenges; alternative dispute resolution; arbitration of international commercial disputes; determination of litigation forums; pleadings and pretrial motions in complex commercial cases; discovery and information-gathering; expert witnesses; trial preparation and presentation; and use of jury consultants.

The fourth and final volume continues litigation issues, and returns to other substantive areas of practice. It has chapters on settlement, appeals, high-profile litigation, patents and trade secrets, trademarks, copyright litigation, employment law, environmental law, mass torts, real estate law, and six chapters describing specific corporate legal departments' methods of partnering between inside and outside lawyers. It also contains various tables and a 276-page index.

The individual chapters are generally well-written with good practical advice, but vary considerably in the depth with which they treat their subject. The ethics chapter, for example, is a good overview of some principal ethical issues likely to arise for inside counsel, but is not complete in itself and even as supplemented by several other chapters. It should be viewed as an appetizer rather than a full-course meal. Similarly, the chapter on securities provides a useful overview of several of the more important federal securities issues and laws (but is nearly silent on the importance of state securities laws); it also provides a good discussion of how inside and outside lawyers can partner in complex securities offerings.

Many chapters dealing with substantive law concisely introduce the area of law for a nonspecialist lawyer, and then supplement it with a valuable and often very candid discussion of how inside and outside counsel can partner in that substantive area. Most chapters conclude with a practical checklist of ideas and practice tips and with useful model forms (also available on accompanying computer disks, although the reviewer's copy of this work arrived without any disks).

Depending on the commitment to partnering and the personal characteristics of the participants, partnering between inside and outside counsel can range from the dreaded to the sublime. The relationship is sometimes uneasy and often unstable. At one time, inside lawyers often acted as clearing-houses for their corporate clients — spotting legal problems and routinely sending them to an outside law firm (often the firm wherein they had formerly been an associate). Sometimes inside lawyers handled their corporate client's routine legal matters, but sent tough legal problems to outside counsel. Some inside lawyers continue that practice, but just as frequently save the tough and often more interesting legal matters for themselves, and instead send routine legal matters out for competitive bid to outside lawyers.

Today, there is a greater likelihood that inside counsel will not just hand off a legal problem to outside counsel. Instead, there will more likely be a far greater effort for inside and outside counsel to work together, not just to save money for the corporate client, but to provide that client with more effective and efficient legal services.

For partnering to work, the concept cannot be merely a euphemism for cost-cutting of legal bills or marketing of limited-scope legal services. For partnering to be successful and mutually satisfying, inside and outside counsel must have mutual respect for and understanding of each other's role and the scope of their respective responsibilities, must communicate well and frequently to reconfirm that role and scope, and must be responsive to and flexible with one another as needs and resources change. When partnering goes well, mutual clients benefit. Implementing the suggestions in this book will help inside and outside counsel both better serve their common clients and increase their personal satisfaction in the practice of law.

Successful Partnering Between Inside and Outside Counsel, West Group and American Corporate Counsel Association, four volumes, 6,032 pages and four diskettes of forms; $350; to order, call 800-344-5009.

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