Overview
As business expands globally, the need to find and manage international law firms has become a greater priority. This short guide will help you get started in selecting and managing external counsel internationally.
Business is increasingly global, law is mostly local - many in-country practitioners provide strictly local advice. What will it take for you to make the global connections to make sense for the business, now and over time? Can your outside counsel help, and if so, how?
Typical Challenges
Typical Challenges in Finding the Right Outside Counsel Internationally
1. They often don't know much about how to work with international clients:
- Many local firm lawyers (even those that are part of global networks) know little about the regulatory context and constraints of US business. Business-oriented, actionable legal advice may not be the norm. Conflicts and ethical standards may be lacking. The firm's local connections to government leadership may pose corruption risk.
2. Don't project assumptions for domestic outside counsel to foreign law firms:
- Lawyers in foreign law firms sometimes offer full-service skills without requisite expertise or experience needed. Often limited understanding in different style of corporate legal services among US clients. English fluency is often limited, and written English is often poor. Hourly rates usually are inadequate for estimating fees, as approach to billing differs.
3. Cultural differences require extra effort for clear communication and responsive service:
- Assignments, particularly when written or e-mailed, are often misunderstood. Many foreign law firms are not accustomed to preparing cost estimates. Adherence to timing and deadlines varies culturally, by firm and by lawyer. Briefs and opinions are often written in a way that is not useful to the business. Communications are often intermittent - standards of responsiveness may be different.
The Right Firm For You
How to Identify the Firm that is Right for your Needs
1. Clarify the assignment:
- What is the overall project? What are you asking the local or international law firm to do? Will this need arise occasionally or is it a one-off assignment? Are there aspects of the assignment that involve or are affected by other jurisdictions or regulatory frameworks, and if so, what? What is most important to you about the assignment, and what are your top priority needs from the law firm on this assignment? Who are the key stakeholders in the company related to the assignment, and what are their concerns? What is the approximate monetary value of the assignment or the issue at hand? What are the time constraints? How important is confidentiality? Who in the company will the outside law firm work with or need to gather information from on the assignment?
2. Establish criteria for selection. A chart of important criteria can be prepared to help you clarify what you need and speed up and streamline the selection process. For example, you may decide that for work on this particular transaction or venture:
- Law firm providers must be either referred by peers or ranked highly in key directories or by peers. Law firms must have proven experience on the issue and within your industry area. Law firms must have a sophisticated conflict review process. Law firms must be willing to work closely both with local office and remote in-house lawyer. English speaking and writing skills of assigned lawyers must be very good. Firms must agree to completing work within an established time frame. Firms must be able to demonstrate value for cost.
3. Develop questionnaire for interviewing law firms:
- Tell us about your understanding of this issue. How would you envision approaching this assignment (including staffing)? What's your experience with this sort of assignment? Are there any issues we haven't raised that you think will be important? How would you charge us for this assignment (e.g., budget, steps, approximate fees)? What other international companies have you worked with, and what was the nature of the work? What do you know about our business? What are the legal qualifications of the lawyers that would be working on this assignment? What are your standards regarding ethics, conflicts, code of conduct? Gather written information on the firm and printed biographies.
Due Diligence
How to Identify the Firms to Consider and Conduct Due Diligence
1. Referral sources:
- Clarify the assignment. Prepare a list of those you've heard about or worked with in the past that may be able to help, and make contact. Prepare a list of colleagues that could provide recommendations (peers, law firm providers, etc.) Contact the list for recommendations.
2. Web-based directories and resources:
- Consult law firm websites. Web-based directories of law firms and lawyers (Chambers, Legal 500, PLC Which Lawyer?). Look for resources that provide qualitative data or specific rankings of law firms (legal media).
3. Quick due diligence - double checking of references, word of mouth:
- Ask your banker or accounting firm in the local market for a reference. Ask other in-house counsel if they have experience with the firm you're considering. Ask the firm itself for international references. Keep the information you gather about reputable firms and those to avoid.
Note: lawyers come and go and quality and capability of local offices of law firms can change fast. Update your information frequently.
Retaining an International Firm
How to Ensure International Outside Counsel Meet Expectations and Avoid Unpleasant Surprises
1. Communication:
- Appoint one person from your legal team and one from the law firm as point person for all questions and issues. Consider video conference if you cannot meet face to face. Be wary of e-mails from your office - may be easily misunderstood. Written communications should be followed up with phone call to confirm comprehension. Stipulate at the start of the assignment the frequency and type of communications you expect. Ask outside counsel what you should be asking that you haven't asked. Ask outside counsel to articulate to you their understanding of any request you make. Provide examples of the format and style of briefs and memos you expect, and ask firms to follow the format. For larger assignments, divide into steps and agree with outside counsel on key decision points and timing of status updates. Agree on cost estimates and calendar for billing.
2. Engagement letter:
- Consider using a formal engagement letter that provides the option to include above points.
3. Performance reviews:
- Ask the business people involved in local issue about their satisfaction with the legal advice. Schedule a conference call or meeting to give performance feedback. Ask the outside counsel how your legal team could help them perform better in future (e.g., provision of information, responsiveness to questions, etc). Write a short summary of performance feedback for your legal department records, with key in-house lawyer contact.
A Step-by-Step Process to Retaining International Law Firms
Step 1 - clarify the assignment
Step 2 - set criteria for outside counsel needed
Step 3 - identify candidates and conduct due diligence
Step 4 - select firm and identify point person from each side
Step 5 - meet to agree on approach to communications, timing, billing, etc
Step 6 - performance review at end of assignment
Conclusion
- Any in-house lawyer retaining counsel internationally should follow the process. Adapt the process to the value of the assignment - for small assignments this process can move very quickly. Practice makes perfect: once you begin to follow these tips it will get easier. Look frequently at your outside counsel spend and satisfaction internationally and consider improvements or consolidation.
Additional Resources
- Eversheds: Criteria for Selecting International Counsel (a worksheet) Eversheds: A Step-By-Step Process to Retaining International Law Firms
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The information in this QuickCounsel should not be construed as legal advice or legal opinion on specific facts and should not be considered representative of the views of its authors, its sponsors, and/or the ACC. This QuickCounsel is not intended as a definitive statement on the subject addressed. Rather, it is intended to serve as a tool providing practical advice and references for the busy in-house practitioner and other readers.
Published June 15, 2009