Part 2 – Care and Feeding of Counsel

Posted below is Part 2 of my ruminations on selecting and managing labor counsel.  I prepared Part 1, the first 10 points,  after sharing my Las Vegas partner, Mark Ricciardi’s multi-part series on selecting employment counsel.  It is our hope that you will share your own suggestions and observations on the care and feeding of legal counsel!

10. Always try to approach the government with “clean hands, “ especially in environmental and safety matters. As an example, we try to position cases with OSHA where the employer has already demonstrated commitment to its workers by abatement actions. Then one can fight hard on the legal issues without harming the company’s reputation.

11. Remember my point #1 about telling your counsel “your expectations?” Communications go both ways! Ask counsel what things allow them to better represent you. Here are some of mine:

a. Don’t lie to us; we’re lawyers for goodness sakes! Everyone hates us. We won’t think less of you for being ignorant, stupid, or evil.

b. A caveat to “a.” above . . . the “evil” or “stupid” past behavior is a problem if one won’t fix things going forward. See number 10 above.

c. When we ask factual questions, please talk directly to the actual witness or party involved. Do not rely on the reports of others. Ask counsel for help in asking the harder questions and how to dig further. Labor lawyers tend to be good at this ferreting out of information.

d. When you search documents and e-mails, keep digging until you are confident that you have found everything that is relevant… then dig some more.

e. Teach your managers not to treat emails like telephone calls. Tell them to draft them as if they may be trial exhibits, so that counsel doesn’t have to later dance in front of a fact finder. If one has to explain more than three things, one is usually out of luck.

f. Tell us when you do or do not have the staff to handle investigation, material preparations, and discovery. We’ll look for efficiencies.

g. If you don’t want counsel to attend an OSHA Informal or a government investigation, ask us to coach you and make a script. It can be quite efficient.

h. Ask us to evaluate the real world exposure … we’ll shoot straight with you about whether the matter warrants our involvement.

i. Don’t simply change the name and reuse another employer’s policies or contracts. Be wary of “form” documents. You are better off asking for guidance on customizing the materials.

j. Don’t be bashful to disagree with us, push us and propose strategy. Clients who are creative and push me may drive me nuts at times, but we usually develop nasty tactics that work better than either of us would have devised alone.

k. Partners are paid well, but we depend on staff and associates, who have to endure quite a bit from us. When they do a good job, please praise them or mention it to us. It matters in this increasingly harried and impersonal age.

l. read our detailed e-mails; sometimes they are important.

j. Never hesitate to ask about bills.

12. Don’t be “Pennywise – Pound Foolish.” We make our money litigating and cleaning up problems, but after 29 years, attorneys like me prefer to “prevent” problems. Do not be reluctant to pay fees to get some fast advice to avoid an expensive claim.

13. Many of our clients employ experienced HR and Safety professionals who are competent to handle on site government investigations or to prepare EEOC responses. Find counsel who are adept at coaching you through inspections or who will review your final EEOC SOP’s for a set amount, etc.

14. Use labor counsel to devise and draft critical communications so that you can use documentation as a “sword, as well as a shield.”

15. Clients hire attorneys, not law firms. If you like a particular attorney in a firm, ask for them.

16. Select an attorney as your primary firm contact who acts like an “outside general counsel” in selecting other attorneys in the system to help you. Presumably, all of the attorneys in a firm are competent, but not all of them may best fit your needs.

17. If possible, find a firm with minimal internal politics and where attorneys genuinely have friends within the system. I like the fact that when I assign a case to an attorney in another office, the attorney will watch over my client as if it were their own in part because they are also my friend.

18. Recognize human nature when you select a firm. Attorneys should do their best on every matter, or they should take a job pumping out septic tanks. But, just in case, use a law firm which is smart enough to provide “credit” to attorneys who help manage clients’ matters; not just the relationship or originating attorney. This process of sharing credit also contributes to continuity. Younger attorneys are less likely to try to leave a firm if they are already receiving credit for their contributions.

19. If you work in a company with in-house counsel, please recognize that they have legitimate reasons to want to coordinate outside legal services. Learn their needs and expectations, and make sure that out-house counsel knows them as well. Counsel love representing companies where safety, HR, Risk and Legal work together.

20. Size isn’t everything. The largest firms may not be the most efficient, harmonious, or even the most experienced. Remember point 15? Find the attorneys you like. When you consider their firm, in addition to the points mentioned above, consider if they have related specialties such as workplace safety, benefits and immigration services. Do they have an adequate footprint to reduce travel. Do they run their business efficiently? Do they maintain heavy debt? Are they efficient with collections? Such factors may affect fees and the provision of effective counseling and advocacy.

About mavity2012

I am a Senior Partner operating out of the Atlanta office of Fisher & Phillips LLP, one of the Nation’s oldest and largest management employment and labor firms. My practice is national and keeps me on the road or in one of our 28 offices about 50 percent of the time. I created and co-chair the Firm's Workplace Safety and Catastrophe Management Practice Group. I have almost 29 years of experience as a labor lawyer, but rely even more heavily on the experience I gained in working in my family's various businesses, and through dealing with practical client issues. Employers tell me that they seldom meet an attorney who delivers on his promise to provide practical guidance and to be a business partner. As a result, some executives probably use different terms than “practical” to describe my fellow travelers in the profession. I don't enjoy the luxury of being impractical because I spend much of my time on shop floors and construction sites dealing with safety, union and related issues which are driven by real world processes and the need to protect and get the most out of one's most important business assets ... its employees. That's one of the reasons that I view safety compliance as a way to also manage problem employees, reduce litigation and develop the type of work environment that makes unions unnecessary. Starting out dealing with union-management challenges and a stint in the NLRB have better equipped me to see the interrelationship of legal and workplace factors. I am proud also of my experience at Fisher & Phillips, where providing “practical advice” is second only to legal excellence among the Firm’s values. Our website lists me as having provided counsel for over 225 occasions of union activity, guided unionized companies, and as having managed approximately 450 OSHA fatality cases in construction and general industry, ranging from dust explosions to building collapses, in virtually every state. I have coordinated complex inspections involving multi-employer sites, corporate-wide compliance, and issues involving criminal referral. As a full labor lawyer, I oversee audits of corporate labor, HR, and safety compliance. I have responded to virtually every type of day-to-day workplace inquiry, and have handled cases before the EEOC, OFCCP, NLRB, and numerous other state and federal agencies. At F & P, all of us seek to spot issues and then rely upon attorneys in the Firm who concentrate on those areas. No tunnel vision. I teach or speak around 50 times per year to business associations, bar and professional groups, and to individual businesses. I serve on safety committees at three states’ AGC Chapters, teach at the AGC ASMTC
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