GE's Former GC: Clients Have Long Memories for Outside Counsel's Conduct in a Crisis
The most important guiding principles for outside counsel during a crisis are to be helpful and to steer clear of anything that might be construed as insensitivity to a client's distress, Alex Dimitrief writes.
March 31, 2020 at 05:30 AM
6 minute read
No two companies are the same, no two crises are the same and no two companies work through crises in the same way. That said, my interactions as a senior lawyer in General Electric's legal department with numerous law firms during the financial crisis in 2008-09, the Fukushima Daiichi nuclear plant disaster in 2011, GE's expedited exit from the financial services industry in 2015 and several other periods of significant stress suggest a few rules of the road for outside counsel as they interact with clients trying to navigate the coronavirus pandemic.
The most important guiding principles are to be helpful and to steer clear of anything that might be construed as insensitivity to a client's distress—or, even worse, an attempt to take advantage of that distress. When we get through this crisis, as we undoubtedly will, clients will have long memories of both.
|Be Concise
Time is precious. Most in-house teams don't have the time for well-intentioned webinars about coronavirus-related issues. Be quick to get to the bottom line and save the (ideally searchable) details for those who request them. In volunteering advice, steer clear of the obvious.
In the past two weeks, I have received countless coronavirus alerts. Most have taken too many pages to state things that are already apparent (and sometimes painfully so) to talented in-house teams. One exception was a pithy precaution to avoid selective disclosures of material information in updates to customers or suppliers about the pandemic's impact on operations, the type of wrinkle to Regulation FD that well might not occur to generalists (like me) in the midst of a crisis. Another was an immensely practical guide on how to optimize force majeure clauses in the weeks and months ahead. These are the types of unique and practical insights that would have prompted me to ask their authors for help.
|Review Bills Carefully
Scrutinize bills before they're sent out to make sure they are copacetic for a client under duress. Don't delegate this important task to back room administrators. Be on the lookout for excessive time entries by lawyers who are unnecessarily trying to maintain their hours at a client's expense.
Apply healthy doses of common sense. If someone has billed many hours for work of marginal importance, write off a significant portion of that time. When a long list of billers has recorded time on a matter, write off the time of the colleagues at the bottom of the list. If the results of your work haven't been stellar, make an accommodation without being asked for one.
Spinning wheels at high hourly rates is never a good look for law firms, even in good times. In bad ones, it can be downright offensive.
|Be Sensible About Rates
Consider rebates of 2020 rate increases for clients that are under duress. Defer additional rate increases that were planned before the pandemic hit. Reduce rates for strategic clients with whom you hope to continue to have great relationships. Offer secondments at cost to companies that are struggling with head count freezes. This is not the time to be preoccupied with profit margins.
I will never forget the call that I received from an Am Law 25 managing partner on one of the darkest mornings of the financial crisis to tell me that his firm was voluntarily reducing its rates for GE work by 20%, effective immediately and with no strings attached. The resulting goodwill continues to redound to the firm's benefit (at higher and fully recovered rates) a decade later.
|Genuinely Ask How You Can Help
With apologies to President Kennedy, ask not what your clients can do for you (in terms of new business at rack rates), ask what you can do for your clients (in terms of addressing their priority areas of concern and being flexible about fee arrangements). At the risk of stating what should be obvious, pitches for new or additional business are unseemly in the midst of crises.
|Be Excellent
Deliver results. Quality matters even more than usual. Don't spread yourself too thin and concentrate on doing fewer things exceptionally well. Deploy the firm's very best lawyers on your most-valued clients' biggest problems. Don't allow your firm not to be its very best by getting hung up on internal issues like origination credit.
|Preserve Bandwidth and Cash
Ask for guidance from clients about their priorities and provide them with sound options for deferring work on less significant matters so that they (and you) can focus their time and outside spend on truly essential activities. Be circumspect about the importance and time-sensitivity of your matters. Be receptive to reasonable requests for alternative or deferred fee arrangements. Engage with your clients in long-term thinking and planning.
|Don't Exploit Tough Circumstances
A crisis is not the time to break new ground on conflicts waivers. I will never forget how one firm wasted hours of my time (and theirs) by endlessly negotiating an over-the-top advance waiver as a precondition to beginning critical work for which they knew we realistically had no other options. Another firm demanded at an incredibly inopportune time that we grant them a waiver to represent an adversary in a significant dispute even though umpteen other law firms were readily at the adversary's disposal. We never hired either firm again.
Also, it is one thing for a restructuring practice to require an extraordinary retainer from a prospective client that is approaching the zone of insolvency. It is quite another for litigators or transactional specialists to insist upon exorbitant premiums because their services are in high demand during a crisis. Think long and hard before extracting short-term gains at the expense of long-term opportunities.
Investments like these will quickly pay for themselves and then some.
Alex Dimitrief is a partner at Zeughauser Group, where he advises legal departments and law firms on a broad variety of strategic issues. He was the president and CEO of General Electric's Global Growth Organization in 2018 and previously served as GE's general counsel. Prior to joining GE in 2007, Dimitrief was a trial lawyer for 20 years at Kirkland & Ellis.
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