Considerations for Health Care Association Executives on Hiring outside Counsel
One of the most important decisions encountered by the executive is when and how to select competent attorneys to handle legal work for the association. The legal complexity of the business of associations means that executives must become far more knowledgeable about engagement of attorneys than they probably would like to be. This article is intended to briefly explore the process of hiring an attorney and providing supervi-sion of them during their engagement.
Authority to Retain the Attorney
Who has the authority in the association to hire counsel? Since most associations are incorporated, this authority is either delegated in the by-laws to the Chief Executive Officer or his/her designee by the corporate board of directors. Some associations hire counsel with the approval of the board. Because association business can be increasingly complex, the need to obtain attorneys with specialized skills has grown significantly.
Association executives are wise to make sure that the corporate directors are aware of the extent and number of outside attorneys who are retained by the organization. This does not mean that the specifics of each case must be discussed in detail with each individual director, but rather the board should generally be aware of the extent to which the association retains attorneys. It is not uncommon for an association to retain specialty attorneys for contract drafting, tax issues, employment and liability issues, collection matters, etc.
Management should look seriously at having the governing board adopt a written policy regarding the authority of managers to hire and retain attorneys. The board has the ultimate authority over governance of the association and a written policy will help delineate the scope of the authority of staff and executives to hire counsel. A typical written policy should express the desire of the board to separate legal work on day-to-day Association matters from policy & governance issues of the board or CEO. For example, authority for day-to-day legal matter might be delegated in the policy to the chief executive to hire counsel for the following:
- Contract drafting and review
- Routine employment matters
- Collection litigation
- Vendor negotiations
- Patent & copyrights
Although the above list is not inclusive of all services that may be required by your particular association, the point is that authority to hire an attorney for day-to-day routine work may best be delegated to the chief executive. Similarly, the board may wish to reserve its authority to hire counsel (perhaps on the recommendation of the chief executive) for matters concerning policy & governance of the association. Typically, policy & governance issues can include, but not be limited to:
Selecting an attorney
This statement will probably get me in trouble with some of my fellow attorneys, but here it goes: NOT ALL ATTORNEYS ARE SUITABLE FOR ASSOCIATION WORK. There, I said it. Deciding which attorney or law firm to hire is often the most problematic part of the process. There is no hard and fast rule for selecting an attorney to represent your association.
One of the best methods of selecting attorneys is to use another attorney. If your association has a general counsel, then he/she should know the reputation of certain attorneys and firms to assist in identifying those specialists whose services the organization requires. Another method is to put out a request for proposals that seeks attorneys who will respond with a written description of their experience, background, and qualifications for the particular job. It is this author’s opinion that telephone directories and advertisements should be avoided since these mediums are limited in the information they can convey. How-ever please note that the Florida Bar requires the advertising attorney to indicate on his advertisement that he/she will send information on the attorney’s qualifications upon request. If you are thinking of hiring an attorney through an advertisement it is wise to request written material on his/her qualifications first.
Shakespeare once said, “A man’s reputation is his most prized possession.” The same is true for attorneys. Another method is to simply contact other associations and solicit advice as to who they use as counsel.
Quality of Representation
Consideration should be paid to the actual interviewing of the attorney who is going to be hired. Of course, in-person interviews are best, but may not be practical. Whether in person or over the phone, prospective outside counsel should be asked about:
- Method of retaining the attorney, by contract or letter of engagement. Turn around time on projects. How quickly does the attorney complete work?
- Personality. Particularly with associations the attorney must be able to get along with staff and executives on different levels.
- Past clients who can be references.
- Past cases. However, do not be swayed by numerous stories of victories the attorney has had over the years. Accomplish- ments are fine, but bragging is not.
- Fee and methods of billing.
This brief article is not intended to explore every facet of retaining outside counsel. However, written policy and careful attention to selection of attorneys can benefit the association. I strongly recommend that associations consider retaining an outside attorney to serve as general counsel, who can coordinate the selection of attorneys when the association requires special- ized legal work. A good competent general counsel can be useful not only for locating other good attorneys, but for “bouncing off” ideas from staff and executives involved in creative planning or future endeavors of the association.
Jeffrey S. Howell practices with the law firm of Howell, Buchan, & Strong, Attorneys at Law, with offices in Tallahassee and Orlando. Howell practices civil litigation and health care law, with an emphasis on health care licensing, representation of licensed health care professionals before regulatory boards, credentialing, insurance, employment law, governmental affair, with a focus on issues before the Agency for Health Care Administration (AHCA) and Department of Health (DOH). He is the former Chairman of the Florida Hospital Association Small & Rural Hospital Council and lobbyist for various health care and insurance entities as well as former CEO of Madison County Memorial Hospital Health Systems, Inc. Jeff also has served for the past 17 years as Senior Adjunct Professor of Health Law at Florida A & M University's School of Allied Health Services, Division of Health Care Management. He can be reached regarding questions about this article or for consultation at 850-877-7776