How to work with in-house and outside counsel
As compliance has become a burgeoning and perplexing issue for hospitals, the relationship between in-house and outside counsel has become increasingly complex.
However, Bruce Gilbert, general counsel for Universal Health Services, a King of Prussia, PA-based for-profit hospital company that owns more than 50 hospitals around the country, says certain ground rules can make that relationship more manageable. He offers outside counsel the following list of "do’s and don’ts" to help guide their involvement with in-house counsel:
I. Do discuss the terms of the employment at the beginning of the engagement. Don’t send in-house counsel a long retention letter with five pages of rules and regulations and a demand for a $25,000 retainer.
II. Do discuss strategy with in-house counsel, make recommendations, and be willing to debate the pros and cons of what is going on. Don’t just take the case and then start running with it on your own. "Recognize that there is a client on the other side," he asserts. "As the in-house counsel, I become that client, so you have to discuss important strategy with me."
III.Don’t expect to be particularly involved in the case if you just intend to oversee someone else doing the work. "I want to deal with the lawyer who is going to actually handle the case and do the legal work," Gilbert asserts.
IV. Do staff each matter appropriately — which usually means relatively thinly. Don’t expect to put together a "team" of lawyers except in extraordinary circumstances. "We want just a few people who are going to work on the case," he says.
V.Don’t be afraid of a fight and the possibility of losing a case. "I have had a few lawyers who were really good and went to the best law schools, but when they had a little quirk in the case, they shy away," he asserts. "Don’t start pushing us to settle because you are afraid to take on a tough case."
VI. Do communicate with in-house counsel often and at least sometimes by telephone. Don’t limit your communication to letters and e-mails. "These days, it becomes very easy to become anonymous and type out an e-mail," Gilbert warns.
VII. Do recognize that every case will not end as successfully as we want, so take the setbacks with grace and help find solutions to ongoing problems. Don’t be defensive about a loss or attempt to deflect blame to others. "In other words, be a stand-up guy about it," Gilbert asserts. "You can’t win every time."
VIII. Do review each bill and delete unnecessary or unreasonable items before you send it to in-house counsel. Don’t be a billing partner if you are not going to work on the case or are otherwise not very familiar with the case. In other words, don’t just send out a bill if you didn’t do the work, Gilbert concludes.