Are Your Processes Working For or Against You?

February 13, 2015

meeting boardroom professionalsMost in-house and outside counsel feel that their outside counsel retention guidelines and RFP processes don’t do much to improve their inside/outside counsel relationships … even though both sides agree that both are very important and they spend large amounts of time on them. Why is this the case?

If you ask me, it’s because most guidelines and RFP processes are very often written poorly, promote dysfunctional behavior, and are not developed to promote the purposes they were designed to address. So I thought I’d step into the morass and try to outline a few of the issues from my perspective and then offer some ideas for how folks might think about these processes differently. Hopefully this should help reunite the process with the value that these resources can/should provide to both firms and departments.

Are Your Outside Counsel Guidelines Working For or Against You?

I’d argue that many guidelines promote exactly the opposite behaviors than they are intended to promote. Lawyers may look to follow the letter of the rule, rather than the spirit or intention of the document. Or because a massive document exists that is supposed to regulate the relationship, lawyers on both sides may forget or forego conversations that should be part of the start of any successful relationship. Once a document like a guideline is filed, it is often forgotten and gathers dust.

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Who’s Getting the Most and Least from the RFP Process?

Unlike outside counsel retention guidelines, which are intended to cement the terms of a partnered relationship between the law department and its law firm, RFPs are more adversarial. The law department issuing one is often in the position of hosting a contest between the firms responding, and there will be more losers than winners in the process. While I don’t think that RFPs will ever be about flowers and candlelight dinners, the process could be more productive and respectful of the relationship it is designed to promote. This will take a bit more pre-thinking about what it is the parties are trying to drive, and how to assure success.

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After taking this critical look at the RFP process, the question remains: Is it possible to improve the RFP process and create generally better results for corporate legal departments and their firms, and support stronger relationships? Are there ways to promote the good use of RFPs and minimize their abuse? Here are some of ideas for legal departments to achieve better outcomes using an RFP.

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