As ALSP-Law Firm Collaborations Increase, So Does the Risk of Conflict
When corporate clients throw their alternative legal service provider and outside counsel together, they should expect questions and concerns, especially if the two aren't even speaking to each other or don't trust each other's work.
February 21, 2020 at 07:00 AM
4 minute read
When corporate clients introduce their outside counsel to their alternative legal service provider, it can be a clash of opinions.
"Most lawyers that rise to the top of their profession and top alternative legal service providers have egos and ambitions," said Jason Winmill, managing partner of corporate legal department consulting company Argopoint.
"Every law firm and alternative legal service provider has their model and everyone believes their model is the best, and it's often difficult for them to compromise," he added.
Conflicts that can arise include mistrust of the ALSP's work quality and miscommunication that leads to lapses in work, legal industry observers say. Winmill described the multiparty collaboration issues ALSPs are experiencing as a rehash of law firms' previous challenges.
"I think the law firm and alternative legal service provider challenges and collaboration issues are the latest iteration of a very old problem, which is many clients would engage multiple law firms to work on certain large issues. The so-called dream-team approach and those collaborations could often be powerful but be tricky to manage."
Still, unique to many of today's collaborations is an entity that isn't a law firm having a significant role in a legal matter, which may leave law firms uneasy. While the uneasiness most likely occurs when law firms and ALSPs are first collaborating, observers said it's also common for lawyers to voice concern over leveraging a third party in document review.
Hilgers Graben senior counsel Sterling Miller, who formerly served as GC for Marketo, Sabre and Travelocity, noted outside counsel may say, "I'm responsible for trying the case, but you are asking me to rely on people I don't know to review all the documents." He noted that "there are firms that are very resistant to that, [and] if you don't have the right quality with alternative legal service providers, those concerns are legitimate."
Such unease could lead to unintended burdens for the legal department, noted James Michalowicz, legal operations business performance senior manager for TE Connectivity.
"If the outside counsel hasn't bought into this relationship and they are doing duplicative work because they don't trust the work by the ALSP, in those situations I've found a big burden is placed on the in-house legal folks to lay out the rules, set out the goals and track that work is being done by both parties."
To avoid extensive micromanaging, at the outset in-house representatives should share with outside counsel the ALSP's prior successes and confirm the ALSP's work quality, Michalowicz said.
Miller added that corporate counsel should also arrange a framework of who is in charge of the project.
"Who's in control, who's running the show day-to-day and in particular who is managing the alternative legal service provider, because the law firm could potentially say, 'You hired them, we thought you were in charge.'"
Miller also noted the legal department should certify the ALSP's cybersecurity and potentially negotiate that the outside counsel place the document reviewer under its malpractice insurance, in the event a significant mistake arises.
Such discussions typically happen between an in-house lawyer and the law firm, and usually leads to the law firm being designated to hand down instructions to the other lawyers and vendors, Miller said. However, "as the in-house, you may have to break ties" when the ALSP and law firm can't come to an agreement.
Designing an overall framework for responsibilities and demanding communication is an effort to avoid duplicate work, which is "the ultimate risk," Miller said.
Indeed, duplicate work defeats the purpose of leveraging ALSP's cost-effectiveness, he said. "That's the biggest problem, and the biggest likelihood of a problem where you have to pay for something twice."
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