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Business people standing back to back
Business people standing back to back

Does outside counsel have your back?

Hey, I’ve got your back!”

It’s a popular phrase that permeates our culture. We often hear this expression spoken between friends, business partners and teammates. But where does that term come from and why does it matter in your relationship with outside counsel? Answering the five questions below will help you determine whether you have the right relationship with your outside counsel.

What does it mean to have someone’s back? In ancient times, trusted warriors often fought with their backs to one another. When soldiers were surrounded in the heat and frenzy of battle, they would team up and literally stand back to back. By positioning themselves in this way, one fighter could cover his partner’s blind side, knowing that he was protected as well. The unit of two became stronger than the individual fighters.

In today’s world, the practice of law often can feel like a battle. Although lives aren’t usually at stake and not every lawsuit is a “bet-the-company” situation, your legal advice to senior management often can affect the health of the business. As an in-house lawyer, the litigation, transactional and regulatory compliance matters you manage are integral to your company’s operations and growth. As such, you need outside counsel whom you can trust — someone who bravely strides into battle with you. Whether you’re in the C-suite, the boardroom or the courtroom, you need a lawyer who always makes your fight his or her fight.

Like an ancient warrior, your lawyer should have your back. If not, you need to make a change. Here are five questions to determine whether you have the right outside counsel on your team.

1. Does my attorney know my business and understand my objectives?

You and your attorney must be on the same page and fighting to achieve the same goal. It’s crucial that your attorney has forged a close relationship with you and with your business. You should expect your attorney to fully understand the nature of the company’s interests and goals, and perhaps even more important, its internal operations and where you fit into the mix. Outside counsel should understand the organization’s objectives on a macro and micro level. There is no way that he or she can give effective advice without fully embracing the company’s goals. If your attorney isn’t asking the types of questions necessary to accomplish this, there is no way for you to trust that this attorney has your back.

2. Does my attorney demonstrate that delivering value to my business is of top importance?

If the answer is anything but a resounding “yes,” that’s a telltale sign your outside counsel is not a good match for your business. Delivering value to the company isn’t enough. How important are you — individually — to your attorney? In today’s technology-driven age of mobile phones, email and text messaging, your outside attorney should always be available to you. If you leave voicemails that go unreturned for more than a few hours or send emails that don’t receive responses, this is a sure indication that your lawyer isn’t showing the proper respect and attention. If you regularly get the feeling that your attorney is too busy to talk or meet with you, it may be time to find someone who not only has time for you but also demonstrates how important you are to his or her practice.

3. Does my attorney communicate with me on important decisions?

Communication is essential to any relationship that requires trust. Your attorney should do more than simply keep you “in the loop.” You should get regular updates (either written or verbal), and should never be surprised or disappointed by an action she takes on your behalf because you should always be involved in important decisions. To successfully work as a unit, each partner needs to stay in complete communication.

4. Does my attorney follow through on the detail so that I can focus on issues before me?

Your outside counsel is there to protect your blind spots — it’s the very nature of your relationship. While you see the forest, your attorney needs to focus on the trees. Your outside counsel should watch out for and address issues and opportunities that you are likely to miss, providing a second set of eyes and hands. If you find yourself needing to review every draft contract or pleading because you consistently find errors in work product, you have a significant problem. If you can’t trust your attorney with the minutiae, how can you trust your attorney with vital strategy decisions?

5. Does my attorney speak truth to me even when it might not be in his or her best interest?

You need someone that speaks the truth to you always and without reservation, even if you might not want to hear it. That truth should always be communicated respectfully. Transparency between you and your attorney will help to develop trust and drive better decision-making. The more collective intelligence that is brought to bear on an issue, the better the result. You should never have to question if your attorney’s advice is given because it benefits her personally or professionally. For example, you want an attorney that will recommend settling a messy piece of litigation when it’s in the best interest of the company, even though he or she will lose out on additional attorney fees from continued litigation. Just remember that in any situation that pits your company’s interests against the interests of your attorney and his or her law firm, you and your company should always win.

Your responses to these five questions will help you evaluate and assess whether your attorney truly has your back. If you feel like you’re always walking into battle alone and exposed, that’s a problem that may not be fixable.

 

Zausmer, August & Caldwell shareholder Mischa M. Boardman has represented individuals, municipalities and companies across a variety of industries in commercial, property, construction, intellectual property and eminent domain disputes. She leads the Michigan firm’s marketing and associate development efforts.