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What is Outside Counsel: Who Is Outside General Counsel For?

Authored by: Mohaimina Haque, Attorney & General Counsel. Immigration and Business law expert. Adjunct Law Professor. Interim CEO at Tony Roma’s.

This article topic is similarly featured in Forbes

Legal challenges can arise at any turn for modern businesses. Whether to retain outside counsel becomes more commonplace when these challenges persist. By navigating complex contracts, ensuring compliance with ever-changing regulations, or safeguarding trademark and intellectual property, companies require expert legal guidance. While many large corporations utilize their in-house counsel (internal legal teams) to address these challenges, not every business has the resources or the need for a full-time legal department. This is where the role of an outside general counsel becomes critical.

What is Outside Counsel

An outside general counsel is a legal professional or law firm that provides a range of legal services to a company on an as-needed basis without being an in-house employee. They act as the company’s primary legal advisor, offering guidance on various legal matters, from contract negotiations to risk management, without the commitment of a full-time position.

Who is Outside General Counsel Typically Used For?

Outside general counsel services are especially beneficial for:

  • Start-ups and Small Businesses: These entities, while navigating the initial stages of growth, might not have the budget or the volume of legal work to justify a full-time in-house attorney. Yet, they still require expert legal advice to ensure they’re on the right path.
  • Medium-sized Enterprises: As businesses expand, so do their legal needs. An outside general counsel can provide the flexibility to address these growing demands without the company having to expand its in-house team proportionally.
  • Specialized Projects: Companies, irrespective of their size, might undertake specific projects or ventures, like mergers, acquisitions, or entering a new market, which require specialized legal expertise. An outside general counsel, often having a broader view of the legal landscape, can offer this expertise.
  • Businesses Without a Legal Department: Not every company has a dedicated legal department. In such cases, an outside general counsel acts as the de facto legal team, providing the necessary legal support and guidance.

The role of an outside general counsel is to bridge the gap between having no legal support and maintaining a full-fledged in-house legal department. They offer a flexible, cost-effective solution, ensuring businesses have access to top-tier legal advice whenever they need it.

The Role of an Outside General Counsel

Legal Advisor and Business Partner

An outside general counsel wears multiple hats. Beyond just offering legal advice, they act as a strategic partner to businesses. They understand the intricacies of the business world and provide guidance that aligns with a company’s objectives and growth plans. Their insights often extend beyond the legal realm, touching upon areas of business strategy, operations, and risk management.

Expertise and Insight into Industry Best Practices

One of the standout attributes of an outside general counsel is their specialized knowledge. Many have honed their expertise by working with clients across various industries, from technology to real estate. This breadth of experience allows them to offer best practices tailored to a company’s specific industry, ensuring that businesses remain compliant and competitive.

Handling Legal Issues

Businesses often find themselves navigating multiple areas simultaneously. An outside general counsel is adept at:

  • Contract Negotiations and Drafting: They ensure that agreements are watertight, protecting the company’s interests while fostering positive business relationships.
  • Intellectual Property Protection and Litigation: From patents to trademarks, they safeguard a company’s valuable assets and represent them in any disputes that may arise.
  • Business Strategy Alignment with Legal Requirements: They ensure that a company’s business strategies align with local, state, and federal regulations, minimizing potential legal pitfalls.
  • Employment Issues: Whether it’s drafting employment contracts, advising on hiring and firing practices, or navigating workplace disputes, an outside general counsel offers invaluable guidance, ensuring businesses remain compliant with labor laws.

Distinction Between In-House Counsel and Outside Counsel

Definition of In-House Counsel

In-house counsel refers to lawyers who are employed directly by a company. They are integral members of the company, deeply involved in its day-to-day operations. Their primary responsibility is to provide legal guidance on matters directly affecting the company, from internal policies to business transactions.

Key Differences

While both in-house and outside counsels serve to address a company’s legal needs, there are distinct differences between the two:

  • Employment Model: In-house counsel are salaried employees, while outside counsel are typically engaged on a retainer or project basis.
  • Cost Implications: Companies bear the full cost of employing in-house counsel, including benefits and overheads. In contrast, outside counsel offers a more flexible cost structure, with businesses paying for services as and when needed.
  • Availability: In-house counsel is continuously available to address a company’s legal needs. Outside counsel, on the other hand, offers flexibility, being engaged as per the company’s requirements.
  • Specialization: While in-house counsel may have a broad understanding of legal matters affecting the company, outside counsel often brings specialized expertise, especially beneficial for niche or complex legal challenges.

Advantages and Disadvantages

Both models come with their set of pros and cons. In-house counsel, being embedded within the company, have a deep understanding of its operations and can offer immediate legal guidance. However, their continuous availability comes at a cost. Outside counsel, with their flexible engagement model and specialized expertise, can offer cost savings and a broader view of the legal landscape. Yet, they might not always be as readily available as in-house counsel.

Benefits of Hiring Outside General Counsel

Cost-effectiveness for Medium and Small Businesses

For many medium and small businesses, the financial implications of maintaining a full-time in-house legal team can be daunting. Salaries, benefits, and other overheads can quickly add up. This is where outside general counsel offers a significant advantage. By engaging legal services on an as-needed basis, businesses can ensure they have access to top-tier legal advice without the continuous financial commitment. It’s a model that offers both quality and economy, ensuring businesses get the best legal support within their budget.

Flexibility and Specialized Expertise

The world of business is varied, and so are its legal challenges. Sometimes, these challenges require niche expertise; something that might be beyond the scope of a general in-house team. Outside general counsel, often backed by a diverse team of lawyers, can offer this specialized expertise. Whether it’s intellectual property in the tech industry or understanding the nuances of estate planning, outside counsel provides businesses the flexibility to tap into specific expertise precisely when they need it, without any long-term commitments.

Collaboration with In-house Legal Teams

Outside general counsel doesn’t operate in isolation. In companies with existing in-house legal teams, they often work in tandem. The in-house team, with its deep understanding of the company’s operations, combined with the fresh perspectives and specialized knowledge of the outside counsel, creates a powerful synergy. This collaborative approach ensures that the company’s legal strategies are both robust and innovative.

When to Engage Outside Counsel

High-risk Legal Issues

Scenarios such as potential lawsuits, disputes with business partners, or navigating major business deals are high-stake situations where the expertise of outside counsel can be invaluable. Their objective view, combined with their legal acumen, can guide businesses safely through these challenges.

Specialized Legal Needs

As businesses grow and evolve, they often enter areas that require specialized legal knowledge. This could be expanding into international markets, requiring an understanding of international law, or undertaking mergers and acquisitions, which come with their own set of legal complexities. Then there are industry-specific regulations – for instance, a tech company might need guidance on data privacy laws. In such scenarios, the specialized knowledge of outside counsel becomes crucial.

Temporary or Project-based Legal Requirements

Not all legal needs are continuous. Sometimes, businesses face short-term projects or one-off legal challenges. It could be setting up a temporary business venture, drafting a contract for a one-time collaboration, or addressing a sudden legal dispute. In such situations, it might not make sense to hire full-time staff or divert the in-house team from their regular duties. This is where the expertise of outside counsel, engaged specifically for the project’s duration, becomes essential.

Acting as In-house Counsel When None Exists

For many start-ups and small businesses, establishing a full-fledged legal department right from the outset might not be feasible. Yet, the legal challenges they face are no less complex than those of larger entities. In such scenarios, outside counsel steps in, acting as the de facto in-house legal team. They provide the necessary legal foundation, ensuring that the business is set up correctly, contracts are sound, and regulatory requirements are met, all while the business focuses on growth and operations.

Working Alongside In-house Counsel

In larger corporations with established legal departments, the role of outside counsel is not to replace but to complement. They work in collaboration with the in-house team, bringing to the table specialized expertise or an additional set of hands during particularly busy periods. This synergy between the two teams ensures that the company’s legal strategies are both comprehensive and agile, ready to adapt to any challenge.

The Role of and Need for Outside Counsel

The Evolving Role of Outside General Counsel

The role of outside general counsel has evolved significantly over the years. From being seen merely as an external legal consultant to now being considered an integral part of a company’s strategic team, their importance in the modern business landscape cannot be overstated. As businesses engage in an increasingly complex world, filled with regulatory challenges, competitive pressures, and unforeseen risks, the guidance of outside counsel ensures they remain on a steady legal footing.

Encouraging Businesses to Evaluate Their Legal Needs

It’s important for businesses, regardless of their size or industry, to periodically assess their legal needs. The world is changing, and with it, the legal challenges businesses face. By considering the benefits of outside counsel, businesses can ensure they have the right legal support, tailored to their specific needs, ready to guide them through whatever challenges lie ahead.

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