Office of the Executive Vice Chancellor and General Counsel
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Policies and Expectations for Outside Counsel Representation

PREPARED BY:
OFFICE OF EXECUTIVE VICE CHANCELLOR AND GENERAL COUNSEL
January 2008

TABLE OF CONTENTS

  1. GENERAL PROVISIONS
    1. Retention of Outside Counsel
    2. Communication with OGC
    3. Collaboration with OGC
    4. Internal Deadlines
    5. Communications with University Personnel
    6. Conflicts of Interest
    7. Confidentiality and Privilege
    8. Files and Records
    9. Email
    10. Media
    11. Deviations from Policies
  2. STAFFING
    1. Principal Firm Attorney
    2. Additional Attorney and Paralegal Staffing
    3. Delegation
    4. Changes in Staffing
    5. Equal Employment Opportunity
  3. BILLING
    1. General Billing Provisions
    2. Attorney and Paralegal Fees
    3. Experts and Other Consultants
    4. Expenses
  4. LITIGATION MANAGEMENT
    1. Applicability
    2. Initial Case Analysis
    3. Budgeting
    4. Status and Task Reports
    5. Investigation
    6. Discovery
    7. Motions
    8. Outcome Projections
    9. Negotiation and Settlement
  5. OTHER DISCRETE AREAS OF PRACTICE

These Policies and Expectations for Outside Counsel Representation ("Policies") are intended to assist the Office of Executive Vice Chancellor and General Counsel ("OGC") and outside counsel in providing timely, wise and cost-effective legal services to our mutual client, Washington University ("WU" or "University"). Please review these Policies thoroughly at the onset of your representation. Any questions or concerns should be addressed to the Executive Vice Chancellor and General Counsel.

  1. GENERAL PROVISIONS
    1. Retention of Outside Counsel. OGC is responsible for all of WU’s legal affairs. WU retains outside counsel only through the Executive Vice Chancellor and General Counsel and his delegates in OGC and the Office of Risk Management. If you are contacted by faculty, staff or students about representation of WU, please refer that person to OGC.
    2. Communication with OGC. Typically, each matter is assigned to a single OGC attorney ("Responsible OGC Attorney"). Unless advised otherwise, all communications should be directed to the Responsible OGC Attorney, who will ensure that information is appropriately disseminated within OGC.
    3. Collaboration with OGC. In our experience, WU is best served by a close and collaborative relationship between OGC and outside counsel. WU looks to outside counsel for their knowledge and expertise, as well as their judgment, skills and creativity. OGC attorneys have special expertise in the problems that regularly face universities, and a unique understanding of WU. To facilitate collaboration, outside counsel will keep the Responsible OGC Attorney fully and timely apprised of all significant developments. The Responsible OCG Attorney will, in conjunction with outside counsel, make all significant decisions concerning legal tactics and strategy.
    4. Internal Deadlines. With the exception of routine matters (e.g., documents concerning stipulated extension of time), the Responsible OGC Attorney will review drafts of all substantive communications, transactional documents, pleadings, discovery requests and responses, motions and memoranda. The extent of input offered by OGC will vary depending upon the circumstances, but in some cases may be extremely detailed. To ensure that OGC has adequate time for meaningful review, we expect that internal deadlines for receipt of draft documents will be treated with the utmost seriousness.
    5. Communications with University Personnel. OGC should be consulted prior to any direct communication with University employees, representatives, and trustees unless we have specifically asked you to initiate such direct communication. You should not send copies of draft documents to other University personnel, unless specifically requested to do so by the Responsible OGC Attorney.
    6. Conflicts of Interest. WU expects outside counsel to be vigilant in identifying and avoiding conflicts of interest, or the appearance of such conflicts. Outside counsel must discuss any existing or potential conflict with the Responsible OGC Attorney at the onset of the representation or as soon as the conflict becomes apparent. All potential or actual conflicts must be resolved to the satisfaction of OGC before the representation may begin or continue. Should WU elect to waive the conflict, it will do so in writing. Any such waivers will be granted on a case-by-case basis. In no case will WU agree in advance to a blanket waiver of unknown future conflicts involving the assertion of a claim or charge against WU.
    7. Confidentiality and Privilege. WU expects outside counsel to assure that the attorney-client privilege, the work product doctrine, and other applicable privileges are fully maintained for the benefit of WU. If you believe special guidance concerning privilege issues is required, you should promptly provide such guidance to OGC. If you foresee that it may be in WU’s interests to waive the privilege (e.g., to assert an advice of counsel defense), the Responsible OGC Attorney should be advised immediately so WU can maintain its privileged communications with a view towards this exigency.
    8. Files and Records.
      1. Outside counsel should provide final copies of all substantive correspondence, transactional documents, written discovery and court filings to the Responsible OGC Attorney. We do not expect to receive copies of voluminous document productions. However, copies of particularly significant documents identified during discovery should be transmitted to the Responsible OGC Attorney.
      2. All files and records maintained by outside counsel in connection with a WU matter belong to WU. Outside counsel shall transfer those files to WU, or otherwise as WU may direct, promptly upon its request.
    9. Email. We expect outside counsel to use discretion in all email communications. In some cases, this may include refraining from email in favor of a telephone call, facsimile, or traditional mail. All privileged email communications should be prominently labeled as confidential, with reference to the applicable privilege(s) and/or protection(s).
    10. Media. From time to time, outside counsel are contacted by the media in connection with their representation of WU. Outside counsel is not authorized to speak to the media unless specifically so advised by the Responsible OGC Attorney. All media inquiries should be referred to the WU Public Affairs representative identified by the Responsible OGC Attorney.
    11. Deviations from Policies. OGC recognizes that it may be important to deviate from these Policies in certain circumstances. Any deviation must be pre-approved by the Responsible OGC Attorney, except in emergency situations where such approval is not feasible. In the event of emergency situations, outside counsel should advise OGC of his or her departure from the Policies as soon as possible. WU will not be responsible for payment of legal fees and expenses not incurred in accordance with these Policies unless this procedure has been followed and, in the case of emergency situations, the fees or expenses incurred are reasonable.
  2. STAFFING
    1. Principal Firm Attorney.Typically, WU, through OGC, will engage a law firm through an individual attorney, who will serve as the Principal Firm Attorney. In some cases, we will ask the firm to identify a Principal Firm Attorney. The Principal Firm Attorney will:
      • Assume primary responsibility for the firm’s handling of the matter;
      • Be actively involved in the matter;
      • Be responsible for keeping the Responsible OGC Attorney up-to-date;
      • Be responsible for ensuring that all work is assigned in accordance with these Policies;
      • Personally review all bills;
      • Have authorization from the firm to make all necessary adjustments on firm invoices, either on his or her own initiative or at the request of OGC.
    2. Additional Attorney and Paralegal Staffing. If the Principal Firm Attorney believes that he or she will need additional attorney or paralegal support, he or she should discuss that need in advance with the Responsible OGC Attorney. In certain situations, such as litigation, a team of two lawyers is warranted. Typically, however, only one attorney should attend meetings, depositions, negotiations or routine court appearances, unless agreed otherwise in advance by the Responsible OGC Attorney.
    3. Delegation. When OGC has authorized two or more attorneys to work on a matter, the Principal Firm Attorney is responsible for delegating work and should do so in a manner that ensures the most efficient and productive combination of expertise and economy. The following principles apply:
      • We expect that the Principal Firm Attorney will be sensitive to the cost implications of work assignments. However, it is OGC’s experience that more seasoned attorneys often perform legal work in the most efficient and cost-effective manner, notwithstanding their higher hourly rates. Work assignments should be made with this in mind.
      • When work is assigned to less experienced attorneys, the assignment should be well defined and relatively discrete. The work must be supervised by the Principal Firm Attorney or other experienced counsel specifically selected by the Principal Firm Attorney.
      • If the Principal Firm Attorney believes that a summer associate can make a valuable contribution to a case by, for example, performing a discrete research assignment, the Principal Firm Attorney should discuss that option with the Responsible OGC Attorney in advance. In most cases, WU will not pay for work performed by summer associates unless the assignment has been approved in advance.
    4. Changes in Staffing. Normally, WU expects that the matter will be handled by the attorney(s) and paralegal(s) initially assigned.
      • Additional attorneys or paralegals may be added if the matter requires sporadic, short-term assistance and the additional fees associated with that assistance will be less than $1000. Examples of such situations include consultation with a firm attorney with expertise that is not represented on the assigned team or delegation of a discrete and severable assignment.
      • If the Principal Firm Attorney believes that the matter requires a more permanent staffing change, he or she should discuss that need with the Responsible OGC Attorney. Unless the Responsible OGC Attorney has approved a significant staffing change, WU will not pay for time the new attorney or paralegal spends becoming familiar with the matter.
      • If a new attorney or paralegal is assigned for reasons extraneous to the matter (such as other client demands or turnover in firm personnel): (1) WU will not pay for time spent becoming familiar with the matter; and (2) if the firm proposes the addition of an attorney or paralegal with a higher hourly rate than the departing professional, OGC and outside counsel will negotiate an appropriate hourly rate for replacement personnel.
    5. Equal Employment Opportunity. We expect the firms that work for WU to actively promote diversity in their workplace by recruiting, retaining and promoting accomplished women and minority lawyers. In selecting outside counsel, we will consider a firm’s commitment and progress in this important area. We expect to receive copies of any diversity information you have provided to the National Association for Law Placement or other organizations. In addition, we encourage you to share with us any additional information about your firm’s initiatives and successes in creating a diverse workplace.
  3. BILLING
    1. General Billing Provisions.
      1. Responsibility of Principal Firm Attorney. WU expects the Principal Firm Attorney to review all invoices and make any appropriate adjustments before submitting invoices for payment.
      2. Format. All invoices must include the firm’s federal tax ID number. In addition, the billing statement must include both detailed and summary portions.

        The detailed portion must include:

        • An itemized, dated and detailed description of each legal service performed;
        • The name and billing rate of the person performing the service;
        • The amount of time spent performing the service;
        • An itemized statement of expenses, including the number of photocopies billed. If the statement of expenses includes payment to a third-party vendor, copies of the third-party invoice should be available to WU upon request.

        The summary portion must include:

        • Total hours worked during the billing period by each attorney and paralegal;
        • Any sums outstanding from prior invoices;
        • In addition, the first invoice prepared after the end of each calendar year quarter must include a summary of all fees and expenses incurred in the matter through the end of the quarter.

        If outside counsel is working on multiple matters for WU, the invoices may be submitted collectively. However, each page of the invoice must include the firm name and the name of the specific matter addressed on that page.

      3. OGC Contact. All invoices should be submitted to:

        Linda Ritter, Office Manager
        Office of the Executive Vice Chancellor and General Counsel
        One Brookings Drive
        Campus Box 1058
        St. Louis, Missouri 63130

      4. Frequency of Billing. All matters must be billed on a monthly basis, unless the monthly fees and expenses associated with an ongoing matter are less than $1000, in which case outside counsel may elect to defer billing until the next month. OGC cannot provide WU’s management personnel with meaningful review of invoices where billing statements relate to services provided two months or more before the bill arrives. Therefore, with the exception noted above, bills must be received no more than 21 days after the close of the month in which the fees were incurred, and must only include fees for services performed in the immediately preceding month. WU reserves the right to make appropriate adjustments to any invoice that is not submitted in a timely fashion.
    2. Attorney and Paralegal Fees.
      1. Hourly Rates. Many matters will be handled on an hourly basis. OGC recognizes that hourly rate increases are appropriate and necessary from time to time. However, WU does not experience routine annual rate increases from most law firms. WU expects outside counsel to discuss any proposed increases with OGC well in advance of their effective date. WU will not honor any rate increase that has not been agreed to in advance by the Executive Vice Chancellor and General Counsel.
      2. Not-to-Exceed Authorizations. On smaller matters, OGC may, after consultation with outside counsel, authorize the work up to a certain hourly or monetary limit. These authorizations represent firm caps on the amount WU will pay on such projects and are inclusive of third-party fees unless otherwise noted. If, after the project is underway, the Principal Firm Attorney determines that the work will exceed the authorization, he or she should notify the Responsible OGC Attorney promptly and before costs in excess of the authorization have been incurred. WU will not pay for fees incurred in excess of the authorization unless the Responsible OGC Attorney has approved those additional fees in advance and in writing.
      3. Legal Research. Outside counsel shall obtain prior authorization from the Responsible OGC Attorney before undertaking more than 8 hours of legal research on a single issue. Copies of memoranda prepared as a result of any research charged to WU should promptly be provided to OGC. Research memoranda should be accurate, organized and readily comprehensible. It is expected that outside counsel will spend less time polishing research memos than substantive transactional or litigation documents.
      4. Noncompensable Activities. WU will not pay for time spent on the following activities:
        • Preparing or reviewing budgets or billing statements;
        • Reviewing or analyzing the firm’s actual or potential conflicts;
        • Engaging in other activities primarily supportive of the firm’s business development activities (e.g., preparing unsolicited "new developments" memoranda);
        • Clerical work performed by an attorney or paralegal;
        • Paralegal work performed by an attorney.
      5. Activities Compensable Only with Prior OGC Approval. As noted elsewhere in these Policies, the following activities are only compensable if outside counsel has obtained prior OGC approval before the fees are incurred:
        • Fees incurred in violation of the Policies, unless there is an emergency situation and the fees incurred are reasonable;
        • Fees associated with the presence of more than one attorney at meetings, depositions, negotiations or routine court appearances;
        • Work by summer associates;
        • Work performed by attorneys or paralegals who have not been approved in advance to work on the matter, if the fees associated with such work exceed $1000;
        • Time that any attorney or paralegal other than those initially assigned spends familiarizing his or herself with a matter, unless the Responsible OGC Attorney has specifically approved a significant staffing change;
        • Fees in excess of a not-to-exceed authorization.
      6. Alternate Fee Arrangements. WU encourages and makes considerable use of alternative fee arrangements, which should be discussed with the Executive Vice Chancellor and General Counsel.
    3. Experts and Other Consultants.
      1. Retention. Retention of experts and other consultants must be approved by the Responsible OGC Attorney in advance.
      2. Payment. Unless other arrangements are made, experts and consultants should be retained and paid by the firm. Fees of experts and other consultants should be included on the firm’s invoice to WU. This procedure is designed to protect privileges and also to ensure that a full accounting is available if, for example, such costs are reimbursable. If a particular expert or consultant requires expedited payment, please discuss this request with the Responsible OGC Attorney.
      3. Supervision. Outside counsel must attentively supervise experts and consultants to ensure that: (1) their fees are appropriate and reasonable; and (2) all applicable privileges and protections are extended to their work.
    4. Expenses.
      1. General Statement on Expenses. WU retains outside counsel with the understanding that they will sometimes incur charges to WU’s account without WU’s prior approval. WU expects that outside counsel will exercise restraint and reasonableness in the pricing and charging of such expenses. In evaluating the reasonableness of expenses, WU recognizes that overhead expenses are embedded in professional fees and that increases in overhead will sometimes require increases in professional fees. Accordingly, WU does not expect to be invoiced for unbundled portions of the Firm’s overhead, and will not pay any such charges. WU will reimburse outside counsel only for the actual cost of reasonable and necessary out-of-pocket expenses incurred as a direct result of representation of WU. Illustrative lists of compensable and noncompensable expenses are set forth below. In the event of expenses that do not appear in these lists, the principles articulated in this paragraph will apply.
      2. Compensable Expenses. Compensable expenses include:
        • Photocopying (if total copies exceed 500 pages, maximum charge is $.10/page);
        • Courier, FedEx, UPS and other delivery charges;
        • Long distance telephone calls and facsimile transmissions;
        • Deposition transcripts and court reporter fees;
        • Reasonable air fare or other transportation expense for approved travel (air travel shall be coach class and, wherever possible, shall be booked far enough in advance to take advantage of lower fares);
        • Reasonable hotel and meals for approved travel;
        • Computer research.
      3. Noncompensable Expenses. WU will not reimburse any personal expense or any expense that may fairly be regarded as part of the firm’s overhead. Such expenses include, but are not limited to:
        • Secretarial or other clerical salaries;
        • Non-emergency word processing;
        • Routine computer usage time;
        • Local meals and local transportation;
        • Local telephone calls and facsimiles;
        • Ordinary postage;
        • Entertainment expenses;
        • Library charges;
        • Computer, software or database management or maintenance fees;
        • Converting documents from one format to another.
  4. LITIGATION MANAGEMENT
    1. Applicability. At the onset of your representation, the Responsible OGC Attorney will discuss specific expectations for management of the case assigned to you. Outside counsel should assume that all of the following policies apply, unless otherwise advised by the Responsible OGC Attorney.
    2. Initial Case Analysis.
      1. Planning Conference. Within four weeks of receiving a new litigation matter, outside counsel must initiate a "planning conference" with the Responsible OGC Attorney to consider the following:
        • Venue and jurisdictional issues;
        • Potential for and sources of liability (if WU is the defendant) or claims (if WU is contemplating litigation);
        • Potential for assessment or recovery of damages (depending upon whether WU is the defendant or plaintiff);
        • Likely legal and factual defenses (of WU or, if WU is the plaintiff, of the adversary);
        • Prospects and strategies for achieving summary disposition;
        • Plan for further investigation, anticipated discovery and goals for each;
        • First estimate of likely case value.
      2. Initial Case Analysis. After the Principal Firm Attorney has had an opportunity to investigate the facts and conduct the necessary legal research, normally within 90 days of the planning conference, OGC will expect to receive a written analysis that includes the following sections:
        • Statement of facts;
        • Review of legal theories;
        • Defenses and applicable law;
        • Possible dispositive motions;
        • Discovery plan, including discussion of depositions needed, brief explanation of each deponent’s identity and involvement, and purpose of the deposition;
        • Discovery plan, including discussion of depositions needed, brief explanation of each deponent’s identity and involvement, and purpose of the deposition;
        • Projected budget for fees and expenses.
    3. Budgeting. As noted above, the initial case analysis must include a projected budget for fees and expenses. In cases where legal fees are projected to exceed $50,000, we require a detailed task-by-task budget. We appreciate that strategy must be frequently reviewed and revised to reflect developments in the case, and that litigation budgets cannot, therefore, be formulated with certainty. However, if during the course of the representation, it appears that the initial budget will be exceeded, either in a specific category or as a whole, you should bring this to the immediate attention of the Responsible OGC Attorney, in writing, and seek approval for any excesses. If new or additional strategies evolve, they should be identified and discussed with the Responsible OGC Attorney as soon as possible, and their impact on the litigation budget should be specifically identified. The Principal Firm Attorney is responsible for monitoring charges and maintaining the accuracy of the budgeting process. WU reserves the right not to pay any charges that significantly exceed the mutually agreed budget.
    4. Status and Task Reports. On more substantive cases (legal fees likely to exceed $50,000) we expect outside counsel to provide, and regularly update, a brief outline of upcoming dates and deadlines (e.g., depositions, deadlines for dispositive motions), and pending projects undertaken by both OGC and firm attorneys (e.g., identification of potential experts, drafting interrogatories). Every task need not be listed, but it is useful to identify the major tasks and the person primarily responsible for each. We will periodically request more analytical status reports, including, where appropriate, a pre-mediation report and a pre-trial report.
    5. Investigation. Outside counsel should promptly identify and interview WU personnel who are likely to be significant witnesses. Unless otherwise agreed, the Responsible OGC Attorney will arrange for and be present at all interviews with WU personnel. The Responsible OGC Attorney will coordinate your access to all pertinent WU documents.
    6. Discovery. The Principal Firm Attorney and the Responsible OGC Attorney should agree on a discovery strategy.
      1. Depositions. The Principal Firm Attorney should identify the depositions that he or she feels need to be taken, and the specific goals for each deposition. Unless the Responsible OGC Attorney has otherwise authorized, the Principal Firm Attorney should be the only firm attorney present at any deposition.
      2. Document Production. While much of WU’s litigation involves only modest document discovery, in some cases document review and production constitute significant tasks. Typically, OGC participates substantially in collecting relevant documents from WU personnel, but it does not have the support staff to prepare or produce large numbers of documents. Where significant document discovery is anticipated, you should discuss with the Responsible OGC Attorney the most efficient approach.
      3. Written Discovery. All proposed discovery requests and responses should be submitted to the Responsible OGC Attorney in time for thorough review and discussion before the deadline for service and/or filing.
    7. Motions. Proposed motions should be discussed with the Responsible OGC Attorney before outside counsel begins work on the motion. Discretionary motions will be limited to those situations where there is more than a "long-shot" chance for a successful final disposition of the case or important elements of the case, or where the proposed motion provides some other worthwhile strategic benefit. OGC’s attorneys bring a great deal of experience, knowledge and practical skill to litigation of the kind of cases most often seen in the WU setting, and they are expected to review and revise, sometimes substantially, the draft motions and supporting memoranda prepared by outside counsel. Accordingly, all draft motions and supporting memoranda must be submitted to the Responsible OGC Attorney in time for thorough and meaningful review and revision.
    8. Outcome Projections. 1 Often, OGC will request that analytical status reports of pending litigation include a prediction of WU’s likelihood of success on the merits, either in the context of dispositive motions or trial. It is vital that WU have the full benefit of outside counsel’s expertise and experience in such projections, and we will therefore expect such predictions to be expressed in probabilistic terms (e.g., >75% probability of success in prevailing on our motion for summary judgment as to count 1; 35-45% probability of success at trial on count 1; etc.). In some cases, this effort will involve the use of decision tree software. 2 Outside counsel are sometimes understandably reluctant to quantify their predictions of the future, preferring phases such as "reasonably strong," "fairly defensible," "moderate prospect of success." These phrases provide WU with relatively little input to consider in making its key litigation decisions, and leave us without the full benefit of the unique expertise that specialist outside counsel bring to bear. Please rest assured that OGC appreciates the uncertainties involved in attempting to precisely project the outcomes of the litigation process. Losing a case projected as a 75% winner does NOT mean that the projection was erroneous, or that the case was not litigated in the best possible way.
    9. Negotiation and Settlement. Outside counsel is expected to assist OGC as requested to resolve litigated matters as effectively and expeditiously as possible. OGC must be notified of all settlement demands or overtures, settlement offers made by other defendants, and other settlement-related communications as soon as outside counsel knows such information. The Responsible OGC Attorney will consult with the Principal Firm Attorney before determining whether settlement negotiations will be conducted primarily by OGC, outside counsel, or in tandem.
  5. OTHER DISCRETE AREAS OF PRACTICE
    6. OGC may provide you with additional policies applicable to specific areas of practice.

1 Our observations on outcome projections are equally applicable to non-litigation matters where the issue under review is the likelihood that private litigants or regulatory agencies will successfully challenge a particular University transaction, practice, or decision.

2Contact for information regarding such software.