An attorney offers eight rules for HR leaders for working with outside counsel.
This article accompanies To Find the Truth.
1. Build a Relationship
All successful professional relationships are built on trust and respect. Take opportunities to spend time with your outside counsel outside of work related meetings. Let your lawyer take you to lunch or to a game and get to know the person who you are going to rely upon.
Your counsel should want to get to know you, your company and your staff, and he or she should do so, of course, without billing you. Counsel should speak and write because doing so makes your lawyer better and you should get regular invites to seminars that your counsel speaks at and receive articles your counsel writes.
In short, like every other successful relationship, the time to build it is not in times of crises, but when waters are calm.
2. Be Proactive
Don't wait! Pick up the phone early and often to discuss issues before they become problems. Many times, your counsel can help you avoid a problem with early, thoughtful intervention.
For example, you learn that two employees are having a romantic relationship. Seek your counsel's advice on how to document and to manage the situation so that if this romantic relationship goes sideways, which it surely will, you are prepared well in advance to deal with the fallout.
3. Let Your Counsel Under Your Hood
Don't be afraid to let counsel see where your skeletons are buried. For example, invite your counsel to review a sampling of your personnel files from time to time.
Looking at these documents will allow counsel to determine whether you are keeping the right documents in your files, whether pre-employment and post-employment agreements are being executed where appropriate, whether appropriate performance reviews are taking place, etc.
4. Be Curious and Stay Informed
Employment and labor laws change over time by statute and through case law. This body of law evolves as much as any other. If your outside counsel sends you a newsletter or client alert, read it! Your counsel should welcome a call from you about an alert he or she wrote.
5. Audit and Update
Best practices change. Make certain your policies and practices stay current by allowing your outside counsel to audit your policies and practices at the very least annually.
For example, if your company uses noncompete agreements, note that this law develops in some subtle ways in most jurisdictions almost every day. The same is true for offer letters, nondisclosure agreements, sexual-harassment policies, etc.
(Hint: If you don't already have a social-media policy in place, get one!)
6. Push Back
If your counsel suggests a course of action with which you disagree, question and discuss the advice. You know the personality and culture of your company best and your insight is an important piece of the puzzle.
Also, counsel should have more than one gear -- not every situation requires all-out guerrilla warfare or that every stone gets overturned. The other side of this pancake is that your counsel should be able to push back (politely, of course) when he or she disagrees with you.
7. Be Prophylactic
By way of example only, invite your counsel to conduct sensitivity training for your personnel. Regular and mandatory training is the best defense against certain claims. Let your counsel explain to your managers how to prepare evaluations of their subordinates and why doing so it is so important.
8. Take a Field Trip With Your Counsel
One of the habits described in Steven Covey's famous book The Seven Habits of Highly Successful People is to always "think with an end in mind."
There is no better way to understand why competent, experienced counsel advises you a certain way than to see at least part of jury trial or even just an oral argument before a judge.
While most matters that start off as a simple HR issue rarely end up in a jury trial, a trial truly is "the (ultimate) end" of an employment dispute. A couple of hours out of your day watching the drama of an employment-discrimination matter unfolding in front of jury will put a lot of your counsel's advice into perspective.
In short, the HR/counsel relationship can and should be effective, rewarding and mutually beneficial.
Bret A. Cohen has 18 years of experience and is a member of Mintz Levin Cohn Ferris Glovsky and Popeo practicing primarily in its Boston office. Bret also practices out of Mintz Levin's New York and District of Columbia offices.