Monday, December 30, 2013

Can in house counsel herding behavior result in greater efficiency?

Looking at things from the other side of the aisle, clients are becoming more and more focused on keeping legal costs low and predictive, cost savings and the value of legal services from outside counsel.  They are utilizing reverse auctions, preferred vendor lists, frozen billing rate requirements, flat fee requests, LPOs, and other alternative ways of choosing their outside counsel.  This of course has law firms scrambling for how to fulfill these requirements and requests, and how to maintain their connections with their clients and ensure healthy revenue streams to sustain their business model.  However, could in house departments do more to control their legal costs and lessen the time burden of developing systems to choose outside counsel and evaluate responses to RFPs?  

Law firms rely on what other firms are doing to determine their own policies - whether it be the technology stipends, bonuses for associates, summer associate programs, part-time policies, professional development trainings or other components of their business.  There are organizations that facilitate this exchange of information, such as NALP, the Legal Marketing Association and the Legal Technology Association, as well as conferences for these groups and other groups.  Most firms are very risk adverse in their business choices, and tend to follow herding behavior when making decisions about key components of their business.  
Could in house legal departments learn from this type of behavior?  Consider an industry - for example financial services.  The companies within this industry are facing similar issues and challenges, and their need to keep legal costs low is vital to their business and a focus of not only senior management but of their shareholders and the public.  What if the legal departments in the financial services industry came together and determined a set of policies on how they handle outside counsel selection and management?  It could either be a formal group that would meet monthly or more of an informal gathering and exchange of information.  The departments could discuss the issues and challenges that each are facing, identify consistencies, and brainstorm solutions to the problems that would be beneficial to each?  For example, what if each department is having trouble determining what type of work they consider "commodity work" and how to select a law firm to handle this type of work?  As commodity work is relatively low risk and an area where there are opportunities for cost savings, developing a process to enable the department to select a firm quickly and for a specific range of pricing would add tremendous value to their management of outside counsel.  Each legal department of the financial services companies could agree upon (1) what they consider commodity work, (2) the process they would use to select a law firm(s), (3) the range of flat fee pricing or billing rates they would pay for this work - no matter which law firm selected, and (4) how they would evaluate the work completed and identify and implement changes to the process as a group.  This would not only institutionalize a specific process to handle this work type, but also would decrease the amount of time and energy the departments would need to spend on this low risk type of work engagement and give them greater leverage over the pricing of this type of work by having a consistent policy industry-wide.  This collaboration would also enable the departments to open lines of communication and learn from each other.  

But what type of problems could arise from this type of collaboration?  Financial services firms are notorious for not sharing information, so getting legal departments on board would be difficult.  How much information is ok to share?  How can the departments ensure they are being compliant with their firms' confidentiality policies, not to mention the legal issues? Obviously there would need to be firmly set guidelines and structure put in place to make sure that the discussions remain focused on outside counsel management policies and components, and not discuss specific legal or company issues.  But this would be a continuing issue that would be a barrier to communication and a reason why firms would not want to participate.  Another issue is whether it is ok to not only share these issues, but also in sharing the same business practices?  Would this be considered an antitrust violation?  If major financial services companies all began having the same requirements for how to handle outside counsel management, even if only for specific types of work, what effect would this have?  Would law firms stop bidding for this type of work?  Would it cause issues with the companies' relationships with their law firms?  Or would it be beneficial in that law firms would all know exactly what the client requirements were for this type of work, and it would enable firms to also spend less time and energy developing customized bids for this work for each client - they would be able to develop a template for the responses to these types of RFPs and a process for how to handle these requests.  This would result in greater efficiencies for both the in house counsel and the law firms.


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