April 13, 2023

general counsel flexible resourcing law department Flexible legal staffing

GCs have long known that they don’t need to staff their department with a roster of lawyers for every practice area they may need, available all the time. Instead, when they’ve needed specialist advice or additional capacity, they’ve traditionally turned to law firms.

Traditions have their place, and until fairly recently law firms were the only game in town, but that is no longer the case. Over the last few years, the availability of high-caliber Flex Talent has continued to increase. The interim space used to be the domain of senior-level attorneys (or those between jobs), but times have changed, and an unprecedented number of attorneys are embracing the portfolio career path, to the point where law departments have an array of options for lawyers across the legal career arc, particularly in the 5-8 years PQE space.

Notably, the majority of these lawyers have experience working directly in and with the business, something that lawyers who have worked only in a law firm lack. The new generation of Flex Talent lawyers takes a strategic approach to their career: combining the depth of business touch obtained within a law department with the variety of experiences obtained from law firms.

This makes flex lawyers uniquely suited to meet the challenge GCs increasingly face: obtaining premium legal advice and resources who can hit the ground running and be in front of the business within days, yet stay within strict (and often intensifying) budgetary constraints. For all but the most complex of projects, Flex Talent now makes sense. (For an excellent explanation of why, I highly recommend the article ‘How Flex Lawyering Benefits Both Practitioners and Law Organisations’ by my colleague Natalie Limerick.)

Still, not everyone is convinced, and my colleagues and I hear a variety of quite understandable and valid concerns. Let’s address them head-on:

• ‘I know Flex Talent is more cost-effective than a law firm, but couldn’t I simply hire them?’ Yes, you could. If you need a resource full-time (or even consistently part-time) on an ongoing basis, hiring may make the most sense. But for a particular project or when a matter requires specialized expertise, hiring a lawyer is typically not appropriate or within HR policies. There is also the time, cost, and energy involved in identifying, recruiting, and interviewing legal talent – none of which are trivial concerns in today’s environment.

• ‘I don’t have time to supervise.’ –The senior talent Elevate fields can hit the ground running, without micro-management because they are experienced professionals with solid records of performance. If a project warrants, we can staff a senior Flex Talent and a more junior Talent to work as a team, with the senior managing the junior as necessary.

• ‘How will they get up to speed quickly, both with the work and our way of doing things?’ Both the ability to quickly assimilate to new projects and acclimate to organizational culture are skills. Flex Talent is better at both because (1) they have more opportunities to develop those skills and (2) a successful portfolio career requires they do so. In contrast, law firm associates must conform to a single culture and way of working – those of their law firm. Neither adaptability nor coming up to speed quickly are inherent to the law firm model. Moreover, a Flex lawyer is dedicated to your work; unlike law firm lawyers, there is no chance of having to multi-task across multiple clients or a partner popping their head around the door to ask for a “quick hand with this one small thing…” (an offer a non-partner lawyer can hardly refuse!)

•  ‘What about the expert oversight that a law firm partner provides?’ – Using Flex Talent does not require you to eliminate partner oversight. Guided by the principle of ‘using the right resources for the right work,’ for a particular matter it may make sense to engage appropriately senior Flex Talent – say six years PQE – for the bulk of the work and have your law firm provide oversight on a particular cadence.

• ‘For this matter, I only need partner-level expertise.’ – Great! You can use the excellent partner and GC-level Flex Talent available to obtain that expertise without paying a law firm’s overhead or the renovation of that fancy new client floor!

• ‘But firms can leverage the work down to junior resources at lower rates…’ This is true but only half the equation. Paying for more hours at a lower rate, together with the cost of supervision and rework often ends up being more expensive.

• ‘What if the Flex Talent becomes ill? At a law firm, someone else can take up the work.’ This is an understandable concern, but just as with combining Flex Talent and law firm partner oversight, it’s not an either/or decision. If the Flex Talent is out for an extended period (which, in our experience, is exceedingly rare) and time is of the essence, you can still enlist your law firm to assist without sacrificing what you have already saved.

• ‘If disaster strikes, I can claim against the law firm’s PII!’ There are two points to remember: in the real world, how often does that happen? Moreover, if you decide to ask your law firm partner to provide weekly oversight, then…

• ‘Rather than Flex Talent, I can obtain a law firm associate as a secondee and achieve cost savings with the benefits of working through a firm.’ – Again, two points: using Flex Talent will (unless the secondee is free as part of your relationship package – in which case, go for it!!) still be more cost-effective. Second, ethics rules concerning conflicts of interest would normally mean that a secondee be separated from their firm for the entirety of the secondment, which prevents them from accessing the firm’s platform or consulting with colleagues.

There is no doubt that law departments sometimes will need the excellent advice, geographic reach, supporting resources, and deep and comprehensive teams that the very best law firms offer. However, the universe of Flex Talent has expanded to the point where, unless a specific law firm is indispensable, GCs can make excellent use of Flex Talent far beyond just outside family leave cover or document review.