In my last blog on Outside General Counsel (OGC), we discussed four reasons why you should have an OGC. A key question is, what will the OGC do for you?
A great advantage of an OGC arrangement is that you can have a seasoned attorney “on call,” always ready to discuss legal problems that arise on a daily basis. Are you hiring a new employee? Or firing one? Did a vendor send you a draft contract and you want your lawyer to review it before signing? Is your lease up for renewal? Did you receive a threatening letter from a customer? These are great occasions to call your OGC for a quick conference.
Do you have a strategic planning session coming up, or an important board meeting? Did you receive an offer to buy your company and you want some quick advice? Your OGC can participate in these kinds of meetings and discussions providing legal insight and pro-active planning to mitigate risks.
Do you already use a law firm for certain work, such as regulatory compliance, litigation, or patents, but need someone who can fill in the gaps? An OGC can fill this function.
Outside General Counsel arrangements can be flexible and tailored to your company and your needs. The basic OGC relationship involves an engagement agreement that covers at least these points:
- Scope of Services. Establish a scope of services you need and want. Typically, these involve general, day-to day matters, such as:
- Conducting a legal audit and annual evaluation
- Attending regular meetings to keep informed on company matters and pro-actively spot potential legal problems
- Handle employment law matters that do not involve litigation (hiring, firing, employment agreements, employee manuals, NDAs and confidentiality agreements, consulting agreements)
- Consult on day-to-day operations issues
- Review and draft basic business contracts
- Consult on Intellectual property protection
- Participate in early discussions and planning regarding major corporate transactions
- Lease review and renewal
- Handle all corporate governance issues
- Counsel officers and directors on fiduciary duties
- Participate in the strategic planning process
Things that generally are not included in an OGC scope of work include:
- Drafting complex contracts
- Financing (private placement of stock or debt, public offerings)
- Mergers and Acquisitions (negotiating and implementing)
- Complex technology transactions
- Joint Ventures
- Monthly Budget. An OGC arrangement allows for the delivery of legal services at a reduced rate in return for a recurring monthly fee. Depending on the breadth and volume of the scope of work, and the size of the company, the fee can range from a few thousand dollars a month and up.
- Are the OCG Hours Capped? Some OGC agreements provide for a cap on the number of hours committed per month for the fixed monthly fee, and some do not. Expect to have a frank discussion about your expected amount of work, and possibly shifting some work deadlines from one month to the next, to even out the workload.
- Services Beyond the Scope. Generally, if a matter falls outside the scope of services, for example a merger or an acquisition, the OGC will bill at his or her ordinary hourly rate and bill the time as an additional pre-approved project. If a specialist needs to be engaged, the OGC will work with you to choose the right person with the specific expertise you need.
- Responsiveness. You want your OGC to be available on short notice, and responsive when you need a response. Discuss your expectations frankly, be reasonable, and work out an agreement on responsiveness.
Make your OGC a Benefit, Not a Cost
Talk to your OGC about your needs and your expectations. Because OGC engagements begin with a full legal audit, your OGC will be able to recommend a fixed fee monthly budget that is fair and reasonable. Many times, the OGC, by asking the right questions, can immediately recommend a fixed fee budget to serve in this capacity for your company. Like in-house general counsel, your OGC is there to become part of your business by attending business meetings, executive team meetings, and planning sessions. The goal of your AGC is to fill the same role a costly general counsel would fill, for significantly less cost. Above all, establish good communications with your OGC. The best lawyer in the world isn’t much good if you can’t get him or her to answer your call. And you won’t get the results you want if you aren’t open and honest in your communications with your attorney.