The answer is nothing’s wrong with rehearsing your credentials; but you can’t stop there.
Shall we stipulate that each of the three firms we spoke to and submitted our one-page request to has more than ample legal capability to address our questions and provide a solid opinion? Yes, so stipulated. That still leaves St. Michael’s well short of any information it could actually use to help aid our decision-making and selection going forward.
Claude Shannon, the undersung mid-20th Century hero of information theory, essentially introduced the concept that something is not “information” if it doesn’t tell you something novel, something you didn’t already know. To truly qualify as “information,” the content (the “signal” as opposed to the “noise,” to Shannon the engineer) must be hitherto unknown. In this sense, the firms’ credentials were not “information.”
What else is needed? If the credentials are necessary but not sufficient, what would be sufficient? The answer is a focused discussion of our issues.
I understand that firms that know they’re part of a competitive bakeoff, as these firms did, are reluctant to over-invest in customized responses to every request that comes in, and the profit-maximizer in me understands that. What I am saying is that had one of these firms spent even 10 minutes customizing their generic responses to discuss their expertise with issues like ours and clients like us, they would have won the engagement in a walk. It’s also germane to note that neither Firm A nor Firm B exactly overwhelmed us in the personal interviews with their intimate knowledge of situations like ours.
Firm C, however, may have taken the cake. Their response was to send back a six-page engagement letter, including two pages of pre-printed boilerplate in fine print (well, it is tiny print). The entire substance of the “Scope of Work” identified in the letter was “zoning.”
The fine print – OK, I read it; I am a lawyer – informed us of such “delight the client” tidbits as:
- fees and costs are not predictable and accordingly the Firm has made no commitmen to Client concerning the maximum amount of fees and costs necessary;
- staffing of the matter may change at any time within the Firm’s sole discretion;
- one-tenth (0.1) of an hour is the minimum time recordable for any activity; and so on.
My partner, Janet Stanton, felt compelled to weigh in:
The engagement letter from Firm C (a firm you all know) has all the charm of a utility bill. Let me emphasize that they entirely skipped over the step of responding to the reasonable questions posed by the committee and went straight to an engagement letter. An oversight in the haste and press of business? Hard to believe. Presumptuous? You bet.
I have to take some issue with Bruce’s comment that in a competitive bake off, firms might be reluctant to “over-invest” in customized responses. I hasten to note that there is virtually no customization (and nary much humanity) in this letter. When better to invest a little extra time than when a firm is competing for the business?
Back to the engagement letter. Does this firm (and presumably others) not realize they’re dealing with human beings? That the issues raised by St. Michael’s are of significant consequence to the church and its parishioners? Evidently not. What many lawyers forget is that most people would prefer to never see a lawyer. It’s nothing personal – it’s just that often this means something bad has happened or is a distinct possibility – and there’s likely to be a big bill attached. Empathy can go a long way.
This letter unfortunately confirms what many think of lawyers and law firms (which I happen to believe is untrue) as heartless and rapacious (aren’t we all tired of lawyer jokes?). It would hardly rise to the level of “over investment” to reference the issues and address the recipients in more personal terms.
To say this left the St. Michael’s team nonplussed would be an understatement. I actually wondered if we shouldn’t double-check back with Firm C to see if that was all they meant to send, but one of my fellow committee members took a much harder line:
After many years of working with contractors, both as an IT executive and then in supply chain, I firmly believe that when vendors do not respond to an RFP as requested, it says that they will do what they want to do, not what the client wants. I have seen this pattern repeatedly – we went for the firm with the better name or more likable people only to be sorry once we were under contract. Vendor selection is like dating – if they do not treat you with respect now, it is not going to get any better when you’re hitched.
You might imagine law firms responding to RFPs would think their overriding goal should be to make it easy for the client to select their firm. If this sample of three is any indication, they seem to be operating under some alternative assumption, although it baffles me what that might be. Each in their own way made it harder for us to pick them.
Of course, readers of Adam Smith, Esq. all know better.
Bruce, how would the committee have considered this response?
“Thank you for considering us for your project. Your property is in the R7-2 district, which allows medium-density residential use up to 3.44x the lot area. So if your lot is 30,000SF you can build a little more than 100,000 SF of total area. Your property is also subject to the EC-2 overlay which allows limited commercial use of up to 2x the lot area. This is part of, and not in addition to, the allowable building floor area. There are several ways to achieve floor area bonuses. Undertaking the professional responsibility to evaluate your chances of success on each is more than we can do in this proposal; we are willing to prepare a memo with the alternatives and likely costs and chances of success, in a form that your board can read and discuss, for a fixed fee of $______. Based on our conclusions and your time and budget, your board can then decide whether and how to pursue the project.”
Not to rub the point in too much, but if some guy (me) a couple of thousand miles away can identify the church’s zoning district and the base regulation in five minutes from the city’s zoning website, each of these three highly experienced firms should have one or two people on staff who can do it even faster.
Sadly, I agree with your committee member’s comment. Simply put, none of these firms care about your matter, not at this proposal stage and most likely would not care at the matter stage (should any of them get hired).
Ironically the most honest is Firm C – who basically says that hiring us is a license to abuse the client/law firm relationship. (No caps on bills. We staff who we want without telling you beforehand, etc.)
As you covered in part one, a firm even sent out an ill-prepared partner to pitch the business. It is telling you “Our business development/sales strategy is so poor (and we don’t care to change it) that we are willing to take a partner away from billable work for a pitch that has almost no chance of winning. But please have confidence in us handling your matter without reservation.”
I’d be interested in the aftermath. Would any of the rejected firms come back and ask how they could win the work the next time?
I understand from a business development perspective why you believe that these firms’ responses fall short, but have you thought about the potential conflict issues? It is not about giving free legal advice, bu the fact that if a firm responds to the questions posed, it increases the risk that they would be viewed as having entered into an attorney client relationship over these specific issues even if they were not later retained. Think of this scenario – one gives some off the cuff advice. Suppose it is wrong. It is possible that Firm A could be sued for malpractice even if they were never retained. But let’s suppose the advice was very good, that the site was great for development if x or y were obtained. But Firm A was not retained, but the church went ahead with someone else who obtained x or y. Now Big Developer client is interested in developing the site and approaches Firm A. But church, being very ethical, objects claiming that Firm A may not represent Big Developer adverse to the church on the same set of facts over which Firm A gave free legal advice. Firm A is conflicted out over its free advice. Sounds unlikely? It happens more often then you think in large firms.
I’m not saying that happened in this example, but giving free legal advice in a pitch in a circumstance where there are a limited number of experts and that if a firm fails to obtain the representation on one side, it is likely to obtain the representation on the other, is one where a complex calculus of values needs to be taken into account.
Hi and thanks for your thoughts.
I very much see the points you are making, but I wonder if a thoughtfully worded response from the firm might not take care of the situation–with all but the most irrational and misguided of potential clients, which I assure you St. Michael’s is not. Caveat: I’ve never been a law firm GC and I’m scarcely an expert on the niceties of professional ethics, but:
Finally, I have a somewhat more metaphysical reaction to the scenario you posit, where a firm purposely and consciously chooses to be nonresponsive in order to protect itself against some (IMHO) far-fetched potential liability that would require improbable and irrational behavior by adults down the road. And that reaction, as a client and as a human being, is along the lines of what in the vernacular might be politely expressed as “Puhleeze.”
Agreed. Not prohibited ethically and very likely not prohibited by even a conservative GC or firm policy, which are typically honored more in the breach any way.
Ultimately, an hour or two of work should have been all that was required (though I defer to others as I am utterly ignorant of RE). Any mid to senior associate worth their salt should have been able to step in, with perhaps a 5-10 min review by the partner. This is what associate BD budgets are for, at least in theory.
That this didn’t happen tells us that it might not have just been arrogance/laziness of the partners involved, e.g. 1) they jealously guard clients and won’t let an associate step into this kind of client-contact role; 2) they don’t have an associate they trust; 3) no associate was willing to kill 2-3 hours for the benefit of the firm. Sounds like a big firm to me, no?
In engineering or applied science, one would distinguish a Request for Qualifications from a Request for Proposal. Any document that included a Scope of Work would be recognized immediately as an RFP, and if it asked for a specific presentation (e.g., a memorandum on three topics), that would be read as a mandatory element of a response. Even without direction, the proposal would present its technical approach and a task structure to reach such conclusions as are needed. Ordinarily the technical approach and task proposals would refer to relevant experience used to support assumptions in the approach and often would include references that Client is invited to contact. The Proposal includes key personnel and makes a corporate commitment that they will be available at the level-of-effort designated, unless renegotiated. A cost estimate is considered mandatory, and if Client asks for it in alternative forms, that is how the Proposal responds. The standard engineering bid, even when time-and-materials is the basis, documents a Proposed Cost Not to Exceed Without Prior Written Approval. All these would be thought mandatory elements were the proposal to NIH or NSF for research, or to a mining company for construction of a dam.
All three of these replies, as described would be deemed Non-Responsive. This is your committee-member’s response. Companies that think there is too much competition to make the prospects of winning worthy of a serious reply decline to propose; naïve odds of 2:1 would discourage no one who is willing to work for the specific Client.
Worth considering (I often advise this to Clients when I am operating in support of the Owner): a list of critical elements (e.g., understanding of the problem; specific prior experience; team qualifications; technical approach; cost; schedule …) with weighting factors. Among other things, the results of such scoring are helpful to losing bidders who want to know how they could have done better and how they might improve their future proposals.
My take on the issue is that the three question sin the RFP asked the respondent to do actual work that they want to be paid for, just to get the information developed for submitting the proposal. So, they went into sales mode.