Selecting and managing International law firms The right choices for your overseas expansion

Transcription

1 Selecting and managing International law firms The right choices for your overseas expansion

2 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 in finding the right outside counsel internationally: They often don t know much about how to work with international clients: many local firm lawyers (even those 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. Be careful not to project assumptions for domestic outside counsel to foreign law firms: lawyers in domestic 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. Vasco Nunez de Balboa A Spanish explorer who was the first to see the Pacific Ocean from its Eastern shore. This publication forms part of Eversheds pioneering set of publications aimed at helping our clients with international legal issues in areas such as compliance, contracts and class actions. Designs have been inspired by great pioneers from the past. Cultural differences require extra effort for clear communication and responsive service: assignments, particularly when written or ed, are often misunderstood many local 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. Selecting and managing international law firms 1

3 1. What kind of firm is right for our needs? A. 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? B. Establish criteria for selection: A chart (see next page) 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 lawyers English speaking and writing skills of assigned lawyers must be very good firms must agree to completing work within an established timeframe firms must be able to demonstrate value for cost. Selecting and managing international law firms 2

4 1. What kind of firm is right for our needs? Criteria Crucial Important Nice to have Not so important Local law qualifications US law qualifications English language proficiency Proven experience with US companies Criteria Crucial Important Nice to have Not so important Proven experience in our industry Proven local familiarity and contacts No conflicts of interest Willingness to provide an estimate Offices in more than one jurisdiction Full-service capability Ability to work with our IT systems Ability to work with our in-house team Add here other important criteria C. Develop questionnaire: 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 (eg 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. Selecting and managing international law firms 3

5 2. How do we identify the firms to consider and conduct due diligence? A. 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. B. 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). They must have experts in the area of engagement, have a sense of the culture of a multinational, and they must be able to communicate well. Lee Braem, Senior Corporate Counsel and Chief Compliance Officer, Evonik Degussa Corp....I look for breadth of geographic and subject matter coverage, recommendations from other GC s in my trusted network, a focus on value, a work style and brand discipline throughout all levels and offices of the firm... Jeffrey Carr, GC, FMC Technologies. C. Methods for 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 records of 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. Selecting and managing international law firms 4

6 3. How do we ensure our international outside counsel meet expectations and we avoid unpleasant surprises? A. Communications: Appoint one person from your legal team and one from the law firm as point person for all questions and issues. Other tips: consider video conference if you cannot meet face to face be wary of s 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. B. Engagement letter: Consider using a formal engagement letter that provides the option to include above points. C. Performance reviews: ask the business people involved in local issue about their satisfaction with 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 (eg 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. The client selecting an international firm must first be clear on its own business model, the nature of the instruction and its in-house capability. Gawie Nienaber, General Counsel, International CSC Take care to work with the differences language, culture, business practice while achieving your objectives and staying true to your working ethics and values. Helena Samaha, GC Europe, Alix Partners. Selecting and managing international law firms 5

7 4. Putting it all together: a step-by-step process to retaining international law firms A step-by-step process: 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 Keep in mind: 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. Step 6 Performance review at end of assignment Step 1 Clarify the assignment Step 5 Meet to agree on approach to communications, timing, billing, etc Retaining international law firms Step 2 Set criteria for outside counsel needed Step 4 Select firm and identify point person from each side Step 3 Identify candidates and conduct due diligence If you want to hear more about how to select and manage international law firms, please contact: Paul Smith +44 (0) paulsmith@eversheds.com Eversheds LLP Eversheds LLP is a limited liability partnership. EINT.620