I continuously have a problem with one of our business unit leaders wanting to have a more “direct” relationship with outside counsel on major litigations. This involves scheduling calls to discuss strategy, etc. when I’m not available. Our counsels are sympathetic, but it’s awkward to need to ask them not to take this person’s calls and/or to brief me after the fact. Anyone else dealt with a similar situation? How do you deal with these types of issues?

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I’ve had this happen before. Business Unit Leader was extremely interested in an ongoing litigation matter and I noticed the same problems you mention start to crop up.

The next time we had a reason to chat live about the matter (I wanted to wait until I could roll it into a larger conversation), I mentioned that I’m glad he wants to be heavily involved and want him to continue to be heavily involved because he knows the ins and outs of the business underlying the dispute. But at the same time, if anything goes off the rails with the matter it’s ultimately my responsibility, so I need to be involved in all outside counsel activities and control the day-to-day. He totally got that aspect of it and going forward there were no issues. Maybe try that approach? It obviously helps if the over-involvement is coming from a good place (interest in the case) rather than just desiring control.

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Outside counsel is hired by you so they should not be available when you’re not.

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I agree. I’ve had similar situations over time and having a direct conversation with the person, and pointing to legitimate reasons why her or his “over-involvement” causes issues (e.g., accountability, cost control, consistent message) has helped to keep that under control. Of course, it helps to make sure there is full alignment with senior management on this point, and it also helps to make sure that outside counsel understand these ground rules.

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This is a common thread in a lot of organizations. We instituted a formal company policy regarding how outside counsel can be hired and managed to level-set on that.

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