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Hopeful, but the ACC Covenant with Counsel is not all that game-changing

Of the 33 covenants, 21 of them are ho-hum, sporadically rolled out, always paid lip service to, and modestly adhered to in most law department-law firm relationships. Guidelines for outside counsel (and perhaps some engagement letters from law firms) state most of the covenantial desiderata. Of the remaining group, none are novel, and yet any one of them would be significant, but only if the client or the law firm carries them out in good faith and diligently over a period of time. Most of them are aspirational, honored far more in the breach.

As a client, we will:

  1. “Use value-based terms to reward success and efficiency.” This hoary exhortation can be significant if law departments move significantly away from hourly billing and discounts to hourly bills, but it has been talked to death. Do not hold your breath.
  2. “Evaluate your performance fairly and regularly.” Law departments have shown little inclination to abide by disciplined review processes. And I could not help but note the hint of snark in “fairly.”
  3. “Conduct ‘after-action’ reviews at the end of each matter to help continuously improve performance.” Maybe clients will do post-mortems on major projects, but I doubt even that.
  4. “Designate one lawyer to serve as our relationship manager.” This only makes sense if a law department works extensively with a law firm over time and over a range of projects.
  5. Provide training opportunities for your associates by discussing creative arrangements up front. I have no idea what the drafters contemplated by this, but these opportunities will be novel (See my post of Jan. 23, 2008: secondees with 8 references.).
  6. “Assist your firm to better collaborate with other lawyers and law firms.” Most law departments could not care less about this. It is a DuPont-like idea of have a panel of preferred firms (See my post of April 11, 2009: services of law firms that can be separated out with 12 references and one metapost.).

  7. “Help nurture an enduring relationship with the firm, not just individual lawyers.” Most law departments probably feel that if enduring relationships happen, fine, but they won’t spend time and money to facilitate it (See my post of April 29, 2009: hire the law firm or the partner.).

As outside counsel, our firm will:

  1. “Give honest feedback on whether your objectives in a matter are realistic and attainable.” Most firms just dig in and work, believing that there is little reward in honesty, knowing sometimes their perspective is no more accurate, feeling objective-testing is not what they are paid to do. “Ours is not to reason why, ours is but to bill and die.”
  2. “Use the most appropriate staffing and tell you if we don’t have the needed expertise.” Partners believe they staff matters properly; partners rarely doubt their ability to serve a paying client.
  3. “Designate one lawyer to serve as our relationship manager, whose time will not be billed for this role.” Same comment as on the client side: only sensible in large-scale relationships over years.
  4. “Proactively offer value-based alternative fee structures.” Law firms think they are “proactive” when they boldly say “We are glad to talk with you, client, about alternatives to hourly billing.”
  5. “Seek to reduce our costs creatively and constantly, and share those savings with you.” In your dreams, clients!