Management of Outside Legal Counsel
The Office of General Counsel (OGC) provides legal services and counseling to all University units and personnel for matters related to the operation of the University. In some instances, either special expertise is necessary or timing dictates that outside legal counsel be engaged. The following steps are provided to assist University units in requesting and managing outside legal counsel:
1. All use of outside counsel must be approved by the North Carolina Attorney General in advance. This is required regardless of the source of funds.
2. Any University unit requiring the services of outside counsel must contact the OGC specifying the issues involved, the reasons why outside legal advice is being sought, the department or unit to be billed for such advice, and the proposed budget (Do not contact a law firm directly). The OGC will determine whether the matter may be handled more effectively by in-house attorneys or by other outside counsel. The University has current retainer agreements with a number of law firms and one of these may be appropriate to handle a new matter. Normally, the department or unit requesting or directly benefitting from the advice is responsible for providing funds for payment.
3. If the OGC determines that outside counsel should be retained, the university unit will need to submit a “Request for Outside Counsel” form to the OGC. The OGC will generally solicit proposals from several appropriate firms (with client input) and then negotiate rates to achieve the best value. We will then prepare an engagement letter, which specifies the terms upon which such counsel will be retained, including the fee arrangement, the nature of the specific assignment, and the outside counsel's reporting requirement to the OGC. Our goal is to work with University units to ensure we receive quality legal services at affordable prices.
4. Once approved by the NC Attorney General’s Office, the outside counsel will be notified of their appointment and the terms of their engagement by a letter from the OGC along with a copy of the “Guidelines for Outside Counsel.” A copy of this letter will be sent to the University unit representative; upon its receipt, you may begin utilizing the services of the outside counsel.
5. Once appointed, outside attorneys are required to submit regular bills, on a monthly basis, for their services directly to the OGC for approval for payment, where they will be checked to make sure that the ceiling is not exceeded tasks are appropriate and hourly rates are accurate. The bills will then be sent to your department for payment. At that point, it becomes the department’s responsibility to review the bills and make sure they are accurate before making payment. Any discrepancies or issues identified should be brought to the attention of the OGC.
6. There is a monetary ceiling that is approved by the AG’s Office for the period of time the outside attorney is retained. The OGC will monitor invoices as they come in. If we notice that the amount being paid to the attorney is approaching the ceiling limit, you will be notified, and a decision will be made on whether or not to request that the ceiling be increased. Someone in your department should also monitor payments. No invoices will be paid that exceed the AG approved cost ceilings.
7. Role of In-house Counsel
a. In-house Contact. OGC will assign an attorney as your in-house contact on the case. We are here to advise you on any aspect of the case and to facilitate communication between the university and outside counsel.
b. Directs Litigation Strategy. OGC works with outside counsel and the university in determining our best course of action throughout the life of the case. Questions on strategy or issues with the direction of the case should be addressed to OGC immediately.
c. Assistance with Discovery. OGC will coordinate the response to discovery requests and will attend and assist university employees at depositions where appropriate.
d. Direct Settlement and Mediation Strategies. OGC will be actively involved in the planning of settlement/mediation strategies and will manage the process of resolving legal disputes.
e. OGC may attend and provide assistance to outside counsel at trials.
8. Role of Outside Counsel
a. Work closely with OGC attorneys to represent the university in court proceedings.
b. Work closely with OGC in determining litigation strategies and legal arguments.
c. Acts as trial counsel in all court proceedings, in depositions and in appeals.
d. Takes depositions (asks questions of fact witnesses and expert witnesses) and defends depositions (makes objections and otherwise defends faculty, staff and our expert witnesses who are being deposed by plaintiff's counsel).
e. Acts as university representative in mediations and settlement discussions.
9. Role of University Employees
a. Cooperate with legal counsel by speaking freely/frankly about the case. Counsel will rely on your experience with the matter to understand the facts involved and to determine defense strategies.
b. Timely respond to requests for information from counsel and gathering all relevant documents related to the matter. The court imposes many time constraints so we need to work together to meet deadlines.
c. Cooperate with the university’s requirement for the preservation of records (see Legal Topic on Litigation Holds and E-Discovery).
d. Ask questions-stay involved-stay informed.
10. Post Case Analysis. When a case is resolved, by order of the court or settlement, OGC will typically meet with the affected department to evaluate from a risk management standpoint, any lessons learned from the litigation. The evaluation may include consideration of new policies, procedures and/or education. This process may involve discussions with university employees, OGC and outside counsel.
11. Managing Legal Cost. Legal advice can be very expensive and legal issues can become more complex and time-consuming than originally anticipated. These factors can sometimes lead to unexpectedly high expenses for outside legal counsel. The following are a few steps to help manage the cost of outside legal services:
a. Outline the facts you wish to obtain from a phone conversation in advance to reduce the time on the phone (phone calls are considered billable hours). Do not engage in a lengthy exchange of pleasantries. You will be billed for this.
b. Make it clear that you are only engaging the services of one attorney and that we will not pay for additional lawyers or paralegals attending meetings or teleconferences, unless we have specifically agreed to it in advance.
c. Understand that usually when outside counsel “offers” to provide an additional benefit or service, you will be billed for it. Don’t accept these “offers” unless you are willing to pay for them and have discussed the matter with the OGC assigned attorney.
d. Where possible, volunteer to do much of the work yourself. For example, gathering and collating documents can generally be done more quickly and efficiently in-house, with guidance from the OGC professional staff.
e. All communications from the attorney should be with the OGC in-house counsel and/or one designated person in the University unit. Communications with multiple University personnel can cause confusion and will generate multiple responses to the attorney, each of which will be billed. Collect comments internally and send them to the OGC for communicating to the outside attorney so that there is only one review.
f. When presented with alternative approaches or solutions to a problem, always ask for an estimate of the cost and time involved in each.
g. When face-to-face meetings or conferences are necessary, meeting with the attorney at his/her office instead of on campus may save money. Typically, attorneys bill for the time traveling to and from meetings and may also include mileage and meals associated with the trip.
The OGC is available at any time to consult with you on any facet of litigation and the management of outside counsel. Please do not hesitate to contact us at 919-515-3071.