When To Use Outside Counsel (And When Not To)

If your law department struggles to decide when to use outside counsel, know that it is not alone. The decisions to involve outside counsel are multifactorial and often vary from organization to organization. The composition of the law department itself, and the skillsets of its members, often dictate the need to use outside counsel. Further, the gravity of a particular issue and its importance to the organization itself may tilt the decision-making one way or the other. Sterling Miller, multiple-time General Counsel and (now) a private practice lawyer, has written a thoughtful article on the topic. A worthy read, especially if you or your law department struggle with this issue, as learning the ins and outs can help make you a more pragmatic and practical lawyer.

“As a longtime in-house counsel, I constantly debated when to send work to outside counsel and when to keep it (or bring it back in). It was a surprisingly difficult task. As an outside lawyer, my hope now is that my clients will want to send more work to me and the firm (hint!). But my in-house lawyer DNA tells me that most general counsel are trying to find ways to keep more work with the legal department. And the data backs me up here. Around 40% of US-based legal departments moved work from outside counsel back in-house. That is an incredible statistic as it means that not only are in-house departments keeping work, but they are more frequently taking it back from their outside lawyers. While this change in direction may be primarily driven by budget forces, there are other factors at play. This brings me to today’s edition of “Ten Things,” i.e., what factors should you look at when deciding when to send work to outside counsel and, more interestingly, when to bring it back….”

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