Life Cycle of a Matter – Setting Yourself up to Not Fail
So why didn’t I title this “Setting Yourself up to Succeed?” When it comes to the Client Intake steps of matter creation, “success” is measured by getting through a repetitive process as quickly and efficiently as possible, so that the legal teams can move on to the client service (and revenue) generating Step 3: Delivering the Work. But those that deliver the work may not see the setup as directly tied to the success of the legal work; they should see it as a transparent administrative function. And the only time they’ll really notice the client intake function is if it fails.
So how do we ensure Client Intake doesn’t fail? Lawyers, already burdened with heavy workloads and pressure for Alternative Fee Arrangements (AFA) that provide more efficient value to clients, don’t have the time or inclination to get bogged down in the weeds of administrative tasks - especially for a new client promising a large workload, or an institutional client generating new matters on a regular basis. Ensuring your administrative processes around new matter setup are clearly defined and risk-averse are important to keep them from getting in the way – in particular, running conflicts checks and implementing the terms in Guidelines for Outside Counsel.
Conflicts Checks
For new clients, this can often be a time-consuming challenge as there’s client history that can help narrow the initial search. For existing clients, running into a roadblock on a conflicts check can be very frustrating (or even embarrassing or risky if the client lead affirms the ability to represent before the conflicts check completes.) To mitigate risk in these situations, focus on the following:
- Closing idle matters: Consider having a policy at your firm that mandates closure of a matter if there has been no activity/billing for a specific amount of time (for example, one year.) The more you let idle matters stay open and build up, the more likely they’ll be flagged on a conflicts check, and thus require review by other matter leads.
Send each attorney in your firm an annual list at the same time every year with a note that you’re planning to close the matters on their list that haven’t had any activity in n time if you don’t hear back from that attorney by x date. All they’ll need to do is tick a column next to anything they still need to keep. If you need to sell this to them, remind them that that if they all take this small step once a year to ensure your open matters list is clean, the benefits will be magnified by having smaller conflicts review documents for all attorneys (I’ve seen the average conflicts review document reduced by more than 70% in a clean environment vs. environments where conflicts documents can regularly exceed 100 pages because of an excessive number of flagged open matters.)
If this is a cultural problem for your firm (attorneys that reply “keep everything open”), get buy-in from your leadership and/or Firm Counsel that justifications need to be provided to keep matters open with no activity.
- Don’t give legal teams places to temporarily squirrel away stuff: Some lawyers who are anxious to get started on a matter might start working on it before the matter clears conflicts – either transparently (“I need a place to store correspondence while I’m waiting for the matter to get set up”) or in secret. Even if the odds of that matter not clearing conflicts are really low, we should still do everything possible to discourage this. Make sure they’re limited to storing data in areas you control, and don’t set up “interim locations” for them to store stuff while waiting for a matter to open. In the event the matter doesn’t clear conflicts, ensure anything they might have saved up to that point can be thoroughly cleaned up.
This risk can also be used as leverage for getting those inactive matters closed, and speeding up the client intake process.
Guidelines for Outside Counsel
In the past, you probably received a Guidelines for Outside Counsel document when setting up Matter 00001 for a new client, and then didn’t see a Guidelines document update for years, if ever. It’s not uncommon for the client’s General Counsel/legal department to forget to inform you when they update this document, or for your own lawyers to overlook it (or just focus on the billing sections). However, with the escalation of cyber-attacks and threats in recent months, combined with the Association of Corporate Counsel’s release of their new Model Information Protection and Security Controls for Outside Counsel Possessing Company Confidential Information, we’ve seen a flurry of activity with changes in Guidelines for Outside Counsel documents, especially around cybersecurity controls, privacy and access requirements.
- Ensure you’re reviewing up-to-date Guidelines: When a client sends new Guidelines, are they being reviewed? We’ve seen cases where a client will attach new Guidelines and not even tell the matter lead they’ve changed. For example, we saw one client move from a two paragraph statement on cybersecurity in their 2016 Guidelines to an 81-control information security appendix in the 2017 version. That’s a sizable change to agree to without review – and was quite a surprise to the client lead.
Help your legal teams by ensuring someone in your Client Intake administrative group is tied in to your new matter process, so that they receive any copies of Guidelines. Ensure your clients that have them know to include an updated digital copy for each new requested matter. Store digital copies of any client Guidelines versions so you can refer to them later if needed.
- Who decides if you’re going to comply? Compliance risks are just like any other risk that can be accepted, mitigated, transferred or avoided. We’ve seen an increase in client demands that all their information be made available only on a “need to know” basis. However most lawyers find this restrictive, and still argue that walling off client data will result in a higher service cost to all clients because lawyers can’t leverage other lawyers’ past work to reduce the time spent on a matter. While that argument may have held more weight in the past, penalties around information privacy and cybersecurity breaches are forcing law firms to figure out how to both reduce cost and protect information as a “need to know” security baseline requirement (with templates, ethical walls, anonymization, etc.)
In most firms the client or matter lead are making the decision whether or not a client matter will be walled off from anyone not working on the matter. This may be fine for your firm, but please check with your Firm Counsel to ensure that this model is well understood and the risks are clear. Most clients are also reserving the right to audit in their Guidelines, so it’s important to discuss how the client lead thinks the client might react if they found out you were not implementing their requirements – and how that could possibly affect the client relationship – or even ethical obligations.