March 18, 2025 • 28 mins
Jenelle Beavers, Managing Director, Alvarez & Marsal, and Emily Little, Senior Counsel, University of Missouri System, discuss best practices for working with consultants. They cover issues related to identifying consultants, contracting, confidentiality, data transfer, communication, and concluding engagements with consultants. Jenelle and Emily spoke about this topic at AHLA’s 2024 In-House Counsel Program in Washington, DC.
Learn more about AHLA's 2025 In-House Counsel Program in San Diego, CA here.
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Speaker 1 (00:00):
Speaker 2 (00:04):
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Speaker 3 (00:27):
Hi, Emily. It's really fun to be , uh, with you
, uh, today, this afternoon. Ienjoyed presenting with you at
the 2024 in-house, a HLAconference in June in dc . Um,
and I'm looking forward totalking more about best
practices for working withconsultants. I thought maybe
we'd kick it off and you couldintroduce yourself and then
(00:49):
I'll introduce myself , uh,before we get started.
Speaker 4 (00:52):
Sure. Thanks, Janelle . I am currently a
senior council at theUniversity of Missouri system,
and here I advise thehospitals, clinics,
professional schools inmultiple areas, including
regulatory questions,compliance, investigation, and
(01:13):
litigation matters. How aboutyou?
Speaker 3 (01:17):
Uh , I currently am a managing director at Alvarez
and Marcel , which is a globalconsulting firm. Uh, previously
I have been outside counsel,in-house counsel, and now I ,
uh, primarily work with lawyerson investigations and
compliance monitoring,providing forensic accounting
and data analytics support. So,and I work on a lot of , um,
healthcare matters in mycurrent practice. Before we get
(01:40):
started, I thought I'd do alittle disclaimer for the both
of us , um, which is that ourviews, concepts, advice, and
opinions that we express are ,are , are our own and don't
necessarily reflect the userposition positions of our
employers. Um, and that theinformation , um, that we have
has been made available forinformation purposes only. That
(02:02):
sounded very lawyerly .
Speaker 4 (02:04):
Absolutely. So here are a few of the things that
we're planning to cover today,right, Janelle ? We've got
first , uh, identification ofexperts and consultants.
Basically, when do you needone? Then we wanna cover , um,
contracting confidentialityprovisions, data transfer, and
(02:27):
a super important piece of thisis communication with our
consultants and experts. Andthen finally, kinda addressing
the conclusion and closeout.
Speaker 3 (02:37):
Awesome. You know, there are a few reasons why you
might wanna hire a consultant,why you also , um, might wanna
hire outside counsel . And Ithink we intend to kind of be
talk when we're talking aboutone. We're talking about other,
the other for the purposes ofthe , this conversation. I
think that's right, Emily. Yes. Um, so , uh, if I, if I don't
(02:57):
say both, I mean both. Um, so Ithink you might need an , an
outside help , um, in a numberof different circumstances. Um,
one that comes to mind is , um,a conflict of interest.
Interest or even the appearanceof a conflict , um, of
interest. So you might thinkthat, you know, the folks in
house that could be doing thework might, you know, have too
(03:20):
vested of a stake, might havetoo much information, and you
really want sort of like anoutside unbiased perspective,
or at least you wanna say thatyou have that , um, outside
unbiased perspective. Um, youmight have something that
requires really just like a ,um, a skill set that you don't
have on your team. Someonewho's really , um, deep in the
(03:41):
weeds on a part in a particularsubject matter , um, or have
the technical skill that thatfolks on the team , uh, don't
have. And you also might likenot have the time to do it on
your team. And so you need thatoutside help. Uh , along along
these lines would also be , uh,the complexity. Uh, if it's ,
(04:02):
uh, really a lot of, a lot ofdetailed scope , um, that your
internal personnel don't , uh,don't have the time or
bandwidth , uh, or resourcesthan an outside consultant or,
or outside counsel could beuseful. It also might be that
you wanna rely on thereputation of an outside
provider, that they are knownto be sort of an expert at what
(04:25):
you need. Um, and that the ideaof engaging them sort of leads
to more credence , uh, orweight into how you're handling
, uh, the matter. So I thinkthose are things that , um,
that in-house counsel can bethinking about when they decide
, uh, to, to seek outside help.
Um, one of the things that wetalked about at , um, at the
(04:48):
conference that I thought wasreally interesting, and some of
the folks , uh, in the audienceweighed in on, was this idea
that you would kind of alreadybe surveying the market for
people , um, who, who know howto do these things instead of
waiting till it's sort of anemergency or, you know, you
(05:09):
really , you feel like you'rejust sort of like looking in
the phone book , trying tofind, find someone. So this
idea that you develop a rosterof professionals who kind of
work in your area, who youmight be able to call on. So
maybe somebody you met at aconference or you read some
thought leadership people inyour network. And so thinking
(05:29):
about, you know, folks who doe-discovery, people who do ,
um, investigations and sort ofthink about kind of key firms
and individuals in those spacesso that it's not so , um,
emergent if the need , uh,arises. I thought the audience
really , uh, kinda , uh, kindof thought that was a good
idea. Um, Emily, do you wannatalk a little bit about the
(05:53):
agreements once you've decidedkind of that you need to engage
someone, you've either chosenthem from your roster or
identified them, what, what areyour thoughts as to how you go
about contracting with , uh, aconsultant or outside counsel ?
Speaker 4 (06:09):
Sure. Absolutely.
So, as in-house counsel youmentioned, we're often involved
in identifying when aconsultant is needed and
helping to isolate who couldbest serve the needs of the
organization. And then thecontracting piece council's
often involved as well, right?
(06:30):
Because we're gonna be lookingat legal terms, understanding
what is critical to thebusiness, anticipating areas of
disagreement, and figuring outwhat's negotiable and, and what
isn't. And so from theperspective of the in-house
counsel and the client, wereally want to set clear
(06:54):
expectations about the scope ofwork, the timeline, the fees,
the work product. I mean, we'veall been in those situations
where we get a consultant onboard and we say, okay, this is
the issue we need to look at.
And then they may come backwith something verbal and it's
just not, it's not really whatis needed , um, to address the
(07:17):
situation. So trying to thinkabout that on the front end of
what is the deliverable? Do wewant to bake that into the
contract to say that we expectat the end of this you'll be
providing a written report anda finished policy for the , the
health system to, to use. Sojust setting those expectations
(07:40):
and what's going to be , um,delivered. And then, you know,
thi this was something elsethat, that came up at our , um,
conference last summer as well,Janelle just kind of talking
about the negotiation points onfees and how those are handled,
and people are getting morecreative and flexible to look
(08:00):
at percentage discounts doingmaybe a lower set fee for an
initial pro , uh, project, oreven if it looks like it's
going to be a long-termrelationship, having , um,
rates locked for a certain timeperiod. I, I think is also ,
(08:20):
uh, a reasonable request.
Speaker 3 (08:22):
Yeah, for sure. I think I, and I think , um, we
also talked about boil , likesort of battling boilerplate
language, right? Mm-hmm . So what happens
when you have , um, you know,something in your kind of
template contract that is atodds with , um, with the other
parties , um, was , was kind ofinteresting. What do you think,
(08:45):
what do you think the consensusof the group was about, about
sort of the battle of theboilerplate, Emily?
Speaker 4 (08:52):
Well, it , some of those things can depend on the
state, actually. So I know formy university, we are a state
university, so we have specificprovisions that either we need
to have in every contract orthat we can't have, you know,
those terms that are reallynon-negotiable. It seemed that
(09:16):
the, the consensus to me wasthe attitude of we will not
change a single thing in ourcontract is not mm-hmm
. Reallyacceptable. And I know one tool
that some have used is eitheradding an addendum if there are
(09:40):
going to be changes to a sortof template agreement that a
consultant is using, or, youknow, you may in-house have
some outside consultantguidelines that you're gonna
indicate need to be followed inaddition to what is in the
agreement. So those may betools that people can use.
Speaker 3 (09:58):
Yeah, for sure. And I recall people talking about
kind of incorporating thoseguidelines into the agreement,
right? So, you know, you haveto bill in this particular, use
this particular platform forbilling or, you know, the, the
bills have to be submittedwithin, in this time period to
be paid and things like that,that get incorporated into a
contract. Right. Um, what areyour thoughts about , um, kind
(10:21):
of confidentiality as part ofthe contracting or negotiation
process ?
Speaker 4 (10:31):
Well, it has to be considered honestly , um, early
and often. So often we'relooking at this in the
pre-engagement phase wherewe're gonna have a
non-disclosure agreement inplace in considering whether a
certain consultant is retainedand then putting those
(10:54):
confidentiality agreements thatare needed within the contract.
And then after the contract isfinal, moving forward,
determining what is the role ofin-house counsel versus what is
the role of the consultant inoverseeing the confidentiality
(11:14):
of information that is sharedor disclosed. How are documents
labeled? How are emailslabeled? Who's included in
those communications? All ofthose things really need to be
clear at the outset and havinglanguage to say, this is the
limited group that it will haveaccess to this information if
(11:38):
anyone else needs to be added,that needs to be cleared or
approved through a certainchain of approval.
Speaker 3 (11:45):
Yeah, that makes sense.
Speaker 4 (11:46):
So what about data transfer? Janelle , this is a ,
this is a big area that, thatcovers so many different
aspects of the consultantrelationship.
Speaker 3 (11:59):
Yeah, so I would say, I mean, it , it kind of
goes along with theconfidentiality, right? So you
have this sort of like, who,who in the entity needs to know
, who needs to know on, oneither end right? About what's
happening? Um, but then whatabout the actual information
that's going back and forth? Soa lot of times in my, in my
work, because I'm dealing withsort of large data sets ,
(12:21):
either fin like a lot offinancial data , um, or claims
data or concur data, right?
Like this is something that,that I deal with daily. And so
thinking about how, how we getthat information, what we do
with it, and even, you know,the jurisdiction, right? Like
many entities are global andwhich means they're , um,
(12:43):
subject to a variety , um, ofdata pri privacy laws. Um, so I
think, you know, at the outsetof the matter, thinking about
where is this data? Is thisdata even in the United States
, um, where is it going to go?
So thinking about , um, variouslaws like hipaa, GDPR , the
Swiss Data protection law,China State Secrets Law, ffa ,
(13:08):
sort of all of these things,and getting a sense of the
outset of which , um, which,which laws are going to be
applicable, thinking about, youknow, PHI and IP and all these
things. And so at the, at theoutset , um, being mindful of
these and then when engagingyour outside counsel or
(13:28):
consultant , um, they shouldhave standard procedures for
dealing with this, right? So ifyou're in the process of hiring
and engaging and you're notgetting kind of a straight
answer , um, or a clear processlike that is something that,
you know, I would encouragein-house counsel to really kind
of kick the tires on beforeengaging, because you want,
(13:50):
these aren't things that youkind of wanna do on the fly,
right? If you're gonna, if you're gonna , if the GDPR
is going to be in play in yourmatter, then you want somebody
who already understands that,who already has the sort of
data environment to deal withthose things. Um, and that you
are not the Guinea pig , um,for the, for the particular
matter . So I think that'simportant , um, at the outset ,
(14:13):
um, to think about how yourinformation , um, how your
client's information is gonnabe, is gonna be safeguarded,
right? Because you don't want,you don't wanna , you don't
want an engagement that's,that's designed to be compliant
or prevent exposure to thengive you additional
additional compliance orexposure issues. Um, you know,
(14:33):
sometimes an engagement mightrequire a business associate
agreement , um, to ensure that, um, PHI is safeguarded , um,
or some other, you know, evenjust within their regular
agreement, like really sort ofspelling out sort of how you're
gonna deal with data and thenalso what you're going to do at
the end with the data, right?
And, and thinking about andthinking about that. So , um,
(14:55):
good outside counselingconsultants will be able to ,
um, will be able to addressthis. Um, but it's certainly
something that you should haveon your radar and then be able
to pivot if something comes upthat all of a sudden you do
need , um, data from somewhereelse, or it turns out the data
was was housed elsewhere, that,that you have the ability to
pivot. But certainly I think inan engagement, asking those
questions at the outset is, isthe most important. Mm-hmm
(15:18):
. Sure .
Speaker 4 (15:19):
Absolutely. Yeah .
Well, and for some consultants,they may have unique platforms
that they request be used, andI know for those, for PHI , for
example, there may need to bean IT security review mm-hmm
. To make surethat that is gonna be compliant
before, you know, a whole bunchof protected health information
(15:42):
is, is put through thatplatform. I know one other
measure that can be taken iswhen we, we talk about the data
transfer and the access , um,for some projects there may be
the ability to set sort of adeadline on how long the
information will be accessible,you know, for example, through
(16:05):
a OneDrive account or somethinglike that. So it's available
for access for the next 30days, and then it, you know, no
longer accessible removed andtrying to close out , um, that
transfer piece.
Speaker 3 (16:21):
Sure. And that actually makes me think of
another thing like, we'll, youknow, we'll often get kind of
access to a client'senvironment , um, to make
things more efficient, right?
Because, you know, a , a goodconsultant or outside counsel
wants to make their client'slife easier. So instead of, you
know, picking up the phone 20times, like you have kind of
access to the company'senvironment, but you wanna make
sure you turn that off, right?
(16:43):
Like , you don't want it to ,you know, you don't want that
to be indefinite. And sothinking about the users and,
and doing that at the end ofthe engagement, and we'll talk
about this a little bit later,but , um, it's almost just as,
it's almost as important toproperly close something out.
And I think , um, thinkingabout like the data transfer
and all of that is , iscertainly part of that , um, is
certainly part of that exercisefor sure. Yeah .
Speaker 4 (17:05):
Yeah, absolutely. So can you , um, talk for a minute
about the importance ofcommunication between the
in-house counsel , the client,and the consultant?
Speaker 3 (17:19):
Yeah, I mean, to me this is like, this is like the
heart of the engagement. And Ithink what's, I mean, all of
it's important, but this iswhere this to me like is , is
what defines kind of a goodengagement and a not good
engagement, right? Like, andhelps and how you're going to
actually get what you need ,um, kind of under this
agreement. So I think, again,we go back to, you know, at the
(17:42):
beginning, how are you , um,how are you detailing how the
engagement is going to go,right? So you wanna know who at
the consultant is going to bekind of the key point person
that might not necessarilyalways be , um, the partner.
Maybe it is, but you shoulddecide this, right? So who is
kind of the, the person thatyou can go to that's gonna know
(18:03):
kind of the whole scope of thematter , um, gonna know what's
going on, be responsive, who isit? And I think it's even more
important. Who is the in-houseperson? Is it a business
leader? Is it counsel whoshould be copied? Right? So
some, some in-house lawyerswanna be copied on everything,
even if they, you know, don'thave to be in the day-to-day,
(18:24):
they still want to know , um,who needs to get the documents,
who needs to do , um, thereviews, and how much time do
they need? So sort of outliningthat at the beginning I think
can make , um, an engagement ,um, much more , um, much more
efficient. Um, I think it'shelpful when a company has an
(18:47):
internal project manager , um,to kind of oversee things , um,
and define who needs to know ,um, who needs to know who's
doing , um, who's doing what. Ithink, you know, it depends on
the matter whether or not youneed kind of regular check-ins
or whether it's ad hoc. Like, Ithink being sensitive to cost ,
(19:07):
maybe you don't always need aregular meeting, but you also,
you know, want to keep peopleon task. So I'm kind of a
person that's, you know, if youhave , if you have a team and
you have a meeting and peopleknow that they have to report
at that meeting, likesometimes, you know, people
work faster. But I think likethat's something to think about
though, because I think havingmeetings for the sake of
meetings when people arebilling by the hour is not
necessarily , um, is notnecessarily the best thing. So
(19:29):
kind of tailoring it , um,thinking about what you've
communicated in a work plan ,um, at the beginning and, and
kind of thinking about likeeach step and keeping track of
those, like good consultantswill , um, will do that and
figure out when the , um,decision points where the
decision points are , um, andwho needs to , um, make them ,
(19:53):
um, or , or things to thinkabout. Um, I'm curious , um,
about kind of the review ofthe, the consultant or outside
counsel's work from yourperspective. Like what, what
are, what are tips you have forlooking at drafts, reviewing
the work and, and kind of howyou think about that?
Speaker 4 (20:14):
Sure. As outside counsel , I really want to try
to support our consultants andhelp them make sure they're
getting the information theyneed. We don't wanna make the
project harder than it needs tobe. And when we're in-house, we
are working with these clientcontacts daily, we know a lot
(20:37):
of the behind the scenesinformation. And so we can be a
, a really good contact to helpfacilitate information flow and
understanding of theorganization when we get draft
reports. I think it's alsoreally helpful to review them
closely and let the consultantknow if they've got an
(21:01):
executive's title wrong or theyhave included , uh, initials
that aren't correct, given howthe organization typically
refers to a certain departmentor unit, you know, just to help
give them that , uh,credibility as the report moves
(21:21):
forward to a final project.
Speaker 3 (21:23):
Yeah, for sure. I also, I mean, I think kind of
from being in-house and beingin the position I'm in now, I
think it's easy when you'rein-house to, you know, you get
drafts and you, you like,you're busy, right? And so
you've kind of relied on thislike outside professional, and
so you get a draft and likemaybe you look at it, but then,
you know, two weeks laterthere's like another draft, but
(21:44):
then you're sort of rehashing.
And so I think, you know, Ireally encourage clients to
like, you know, dig in when youget the first one ,
because it is, it's often moreefficient , um, going forward
to kind of take the time toprovide that, that insight that
you're talking about Emily ,um, kind of in real time . Like
I think it leads to a betterwork product when you're,
(22:07):
because you have, theconsultant has value in the
ways we talked about in thebeginning, right? Maybe they
have expertise, they'reunbiased, they have more time,
but you also are deep in thebusiness, right? And so that
value add is, I still thinkessential even when you've
engaged , um, kind ofconsultant or outside party for
sure. Mm-hmm .
(22:29):
Alright . So let's talk, we'vealluded to the , the , there's
been a big lead up I feel liketo how you conclude, how you
conclude , um, one of theseengagements. Um, tell us , um,
tell us a little bit about kindof your viewpoint on the best
way to kinda wrap up one ofthese engagements.
Speaker 4 (22:51):
The first thing that you can consider is how are you
transitioning the consultant'sresponsibilities or the advice,
the work product that you'vereceived from the consultant
into the day-to-day operationsof the organization? So take
(23:12):
for example, an audit situationwhere the consultant comes in,
does the audit, there's anaction plan in connection with
those , um, improvements, butwhat can you do in-house to
follow up ? You can of coursecome back in six months to a
(23:33):
year and do a follow upinternal audit and see how ,
how are things going and , um,figure out, you know, is the
plan workable? Do we need tomake some changes even , um,
considering what the consultanthas initially recommended is
(23:55):
that working in real life. Um,so that, that's one piece that
we cover from, from thein-house side. And then in
looking at sort of the wrap upwith the consultant,
considering the retention ofdocuments or other materials,
are we okay with theirretention? Do they have a
(24:18):
policy for how long they'rekeeping things? Is there
anything that we wanna specifythey need to return or destroy
or we need to end access? Likewe, like we talked about,
ideally those types ofprovisions would be addressed
in the agreement, but sometimesit may not be specific to
(24:41):
certain things. And, and youhave to consider how, how to
address that and what othercommunications might be
necessary with the consultantto make sure things are
properly wrapped up. And Ithink sometimes it's hard when
you are not sure if you want toclose out the engagement or
(25:02):
not, right? I mean, sometimesit's wise to leave that
consultant sort of on call , ifyou will, during the time that
you are looking at implementinga corrective action plan
because maybe you will need togo back to them and you wanna
go ahead and have them continueto retain materials and be able
(25:25):
to loop back around to, tocomment or, or weigh in on how
things are going. So it reallyis a strategic, and it's often
not a legal decision, sometimesit's more of a business
decision. Uh , but those aresome of the things , um, that
I'm thinking about at theconclusion.
Speaker 3 (25:43):
Yeah. And I would , I think, I mean, I think that's
right, right? Like particularlywhen you're dealing with sort
of accounting things like myteam is right, like keeping,
you know, we'll keep workpapers because people might
come back and have a question,right? And so you wanna make
sure that it's within theconfines of like
confidentiality and all ofthat, but sort of a record of
what was done and all of thatis super , um, important , uh,
(26:05):
for sure. Which, which you cando and still, you know, deal
with kind of the dataconfidentiality. Um, and I
think, you know, depending onthe nature of the project, you
know, ideally identifying, youknow, who at the organization
is now going to be responsiblefor this and kind of outlining
, um, you know, ideally, I meanprobably in writing sort of
(26:28):
like, okay, here's what wasdone, here's the recommended
next steps and here's whereeverything is, right? Like, so
that if, you know, ifparticularly if the consultant
has really taken the lead onthe project, that it's not like
they disappear in the night,right? Like nobody, you , you ,
you wanna sort of leave , um,the, the organization armed to
go to go forward, kind of likeyou said. Um, and to be
(26:50):
available for, you know, anykind of downstream inquiries or
questions , um, and have havekind of a contact point in case
, um, in case things come up. Idon't think sort of
disappearing in the night evenwhen it, when it's over is, I
don't think that reallyhappened , but it's certainly ,
um, it's certainly good to beavailable.
Speaker 4 (27:08):
Thank you . Well, thank you Janelle . I think
that we've covered everythingthat we plan to talk about
today. So I appreciate , um,your time. Thank you to
everyone who is listening. I dohope that everyone can attend
the A HLA in-house councilprogram in San Diego in 2025
(27:30):
and that we can see you allthere. Thank you.
Speaker 3 (27:33):
Thanks Emily. It was really great being with you
today.
Speaker 2 (27:40):
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Speaker 2 (00:04):
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Speaker 3 (00:27):
Hi, Emily. It's really fun to be , uh, with you
, uh, today, this afternoon. Ienjoyed presenting with you at
the 2024 in-house, a HLAconference in June in dc . Um,
and I'm looking forward totalking more about best
practices for working withconsultants. I thought maybe
we'd kick it off and you couldintroduce yourself and then
(00:49):
I'll introduce myself , uh,before we get started.
Speaker 4 (00:52):
Sure. Thanks, Janelle . I am currently a
senior council at theUniversity of Missouri system,
and here I advise thehospitals, clinics,
professional schools inmultiple areas, including
regulatory questions,compliance, investigation, and
(01:13):
litigation matters. How aboutyou?
Speaker 3 (01:17):
Uh , I currently am a managing director at Alvarez
and Marcel , which is a globalconsulting firm. Uh, previously
I have been outside counsel,in-house counsel, and now I ,
uh, primarily work with lawyerson investigations and
compliance monitoring,providing forensic accounting
and data analytics support. So,and I work on a lot of , um,
healthcare matters in mycurrent practice. Before we get
(01:40):
started, I thought I'd do alittle disclaimer for the both
of us , um, which is that ourviews, concepts, advice, and
opinions that we express are ,are , are our own and don't
necessarily reflect the userposition positions of our
employers. Um, and that theinformation , um, that we have
has been made available forinformation purposes only. That
(02:02):
sounded very lawyerly .
Speaker 4 (02:04):
Absolutely. So here are a few of the things that
we're planning to cover today,right, Janelle ? We've got
first , uh, identification ofexperts and consultants.
Basically, when do you needone? Then we wanna cover , um,
contracting confidentialityprovisions, data transfer, and
(02:27):
a super important piece of thisis communication with our
consultants and experts. Andthen finally, kinda addressing
the conclusion and closeout.
Speaker 3 (02:37):
Awesome. You know, there are a few reasons why you
might wanna hire a consultant,why you also , um, might wanna
hire outside counsel . And Ithink we intend to kind of be
talk when we're talking aboutone. We're talking about other,
the other for the purposes ofthe , this conversation. I
think that's right, Emily. Yes. Um, so , uh, if I, if I don't
(02:57):
say both, I mean both. Um, so Ithink you might need an , an
outside help , um, in a numberof different circumstances. Um,
one that comes to mind is , um,a conflict of interest.
Interest or even the appearanceof a conflict , um, of
interest. So you might thinkthat, you know, the folks in
house that could be doing thework might, you know, have too
(03:20):
vested of a stake, might havetoo much information, and you
really want sort of like anoutside unbiased perspective,
or at least you wanna say thatyou have that , um, outside
unbiased perspective. Um, youmight have something that
requires really just like a ,um, a skill set that you don't
have on your team. Someonewho's really , um, deep in the
(03:41):
weeds on a part in a particularsubject matter , um, or have
the technical skill that thatfolks on the team , uh, don't
have. And you also might likenot have the time to do it on
your team. And so you need thatoutside help. Uh , along along
these lines would also be , uh,the complexity. Uh, if it's ,
(04:02):
uh, really a lot of, a lot ofdetailed scope , um, that your
internal personnel don't , uh,don't have the time or
bandwidth , uh, or resourcesthan an outside consultant or,
or outside counsel could beuseful. It also might be that
you wanna rely on thereputation of an outside
provider, that they are knownto be sort of an expert at what
(04:25):
you need. Um, and that the ideaof engaging them sort of leads
to more credence , uh, orweight into how you're handling
, uh, the matter. So I thinkthose are things that , um,
that in-house counsel can bethinking about when they decide
, uh, to, to seek outside help.
Um, one of the things that wetalked about at , um, at the
(04:48):
conference that I thought wasreally interesting, and some of
the folks , uh, in the audienceweighed in on, was this idea
that you would kind of alreadybe surveying the market for
people , um, who, who know howto do these things instead of
waiting till it's sort of anemergency or, you know, you
(05:09):
really , you feel like you'rejust sort of like looking in
the phone book , trying tofind, find someone. So this
idea that you develop a rosterof professionals who kind of
work in your area, who youmight be able to call on. So
maybe somebody you met at aconference or you read some
thought leadership people inyour network. And so thinking
(05:29):
about, you know, folks who doe-discovery, people who do ,
um, investigations and sort ofthink about kind of key firms
and individuals in those spacesso that it's not so , um,
emergent if the need , uh,arises. I thought the audience
really , uh, kinda , uh, kindof thought that was a good
idea. Um, Emily, do you wannatalk a little bit about the
(05:53):
agreements once you've decidedkind of that you need to engage
someone, you've either chosenthem from your roster or
identified them, what, what areyour thoughts as to how you go
about contracting with , uh, aconsultant or outside counsel ?
Speaker 4 (06:09):
Sure. Absolutely.
So, as in-house counsel youmentioned, we're often involved
in identifying when aconsultant is needed and
helping to isolate who couldbest serve the needs of the
organization. And then thecontracting piece council's
often involved as well, right?
(06:30):
Because we're gonna be lookingat legal terms, understanding
what is critical to thebusiness, anticipating areas of
disagreement, and figuring outwhat's negotiable and, and what
isn't. And so from theperspective of the in-house
counsel and the client, wereally want to set clear
(06:54):
expectations about the scope ofwork, the timeline, the fees,
the work product. I mean, we'veall been in those situations
where we get a consultant onboard and we say, okay, this is
the issue we need to look at.
And then they may come backwith something verbal and it's
just not, it's not really whatis needed , um, to address the
(07:17):
situation. So trying to thinkabout that on the front end of
what is the deliverable? Do wewant to bake that into the
contract to say that we expectat the end of this you'll be
providing a written report anda finished policy for the , the
health system to, to use. Sojust setting those expectations
(07:40):
and what's going to be , um,delivered. And then, you know,
thi this was something elsethat, that came up at our , um,
conference last summer as well,Janelle just kind of talking
about the negotiation points onfees and how those are handled,
and people are getting morecreative and flexible to look
(08:00):
at percentage discounts doingmaybe a lower set fee for an
initial pro , uh, project, oreven if it looks like it's
going to be a long-termrelationship, having , um,
rates locked for a certain timeperiod. I, I think is also ,
(08:20):
uh, a reasonable request.
Speaker 3 (08:22):
Yeah, for sure. I think I, and I think , um, we
also talked about boil , likesort of battling boilerplate
language, right? Mm-hmm
when you have , um, you know,something in your kind of
template contract that is atodds with , um, with the other
parties , um, was , was kind ofinteresting. What do you think,
(08:45):
what do you think the consensusof the group was about, about
sort of the battle of theboilerplate, Emily?
Speaker 4 (08:52):
Well, it , some of those things can depend on the
state, actually. So I know formy university, we are a state
university, so we have specificprovisions that either we need
to have in every contract orthat we can't have, you know,
those terms that are reallynon-negotiable. It seemed that
(09:16):
the, the consensus to me wasthe attitude of we will not
change a single thing in ourcontract is not mm-hmm
that some have used is eitheradding an addendum if there are
(09:40):
going to be changes to a sortof template agreement that a
consultant is using, or, youknow, you may in-house have
some outside consultantguidelines that you're gonna
indicate need to be followed inaddition to what is in the
agreement. So those may betools that people can use.
Speaker 3 (09:58):
Yeah, for sure. And I recall people talking about
kind of incorporating thoseguidelines into the agreement,
right? So, you know, you haveto bill in this particular, use
this particular platform forbilling or, you know, the, the
bills have to be submittedwithin, in this time period to
be paid and things like that,that get incorporated into a
contract. Right. Um, what areyour thoughts about , um, kind
(10:21):
of confidentiality as part ofthe contracting or negotiation
process ?
Speaker 4 (10:31):
Well, it has to be considered honestly , um, early
and often. So often we'relooking at this in the
pre-engagement phase wherewe're gonna have a
non-disclosure agreement inplace in considering whether a
certain consultant is retainedand then putting those
(10:54):
confidentiality agreements thatare needed within the contract.
And then after the contract isfinal, moving forward,
determining what is the role ofin-house counsel versus what is
the role of the consultant inoverseeing the confidentiality
(11:14):
of information that is sharedor disclosed. How are documents
labeled? How are emailslabeled? Who's included in
those communications? All ofthose things really need to be
clear at the outset and havinglanguage to say, this is the
limited group that it will haveaccess to this information if
(11:38):
anyone else needs to be added,that needs to be cleared or
approved through a certainchain of approval.
Speaker 3 (11:45):
Yeah, that makes sense.
Speaker 4 (11:46):
So what about data transfer? Janelle , this is a ,
this is a big area that, thatcovers so many different
aspects of the consultantrelationship.
Speaker 3 (11:59):
Yeah, so I would say, I mean, it , it kind of
goes along with theconfidentiality, right? So you
have this sort of like, who,who in the entity needs to know
, who needs to know on, oneither end right? About what's
happening? Um, but then whatabout the actual information
that's going back and forth? Soa lot of times in my, in my
work, because I'm dealing withsort of large data sets ,
(12:21):
either fin like a lot offinancial data , um, or claims
data or concur data, right?
Like this is something that,that I deal with daily. And so
thinking about how, how we getthat information, what we do
with it, and even, you know,the jurisdiction, right? Like
many entities are global andwhich means they're , um,
(12:43):
subject to a variety , um, ofdata pri privacy laws. Um, so I
think, you know, at the outsetof the matter, thinking about
where is this data? Is thisdata even in the United States
, um, where is it going to go?
So thinking about , um, variouslaws like hipaa, GDPR , the
Swiss Data protection law,China State Secrets Law, ffa ,
(13:08):
sort of all of these things,and getting a sense of the
outset of which , um, which,which laws are going to be
applicable, thinking about, youknow, PHI and IP and all these
things. And so at the, at theoutset , um, being mindful of
these and then when engagingyour outside counsel or
(13:28):
consultant , um, they shouldhave standard procedures for
dealing with this, right? So ifyou're in the process of hiring
and engaging and you're notgetting kind of a straight
answer , um, or a clear processlike that is something that,
you know, I would encouragein-house counsel to really kind
of kick the tires on beforeengaging, because you want,
(13:50):
these aren't things that youkind of wanna do on the fly,
right? If you're gonna
is going to be in play in yourmatter, then you want somebody
who already understands that,who already has the sort of
data environment to deal withthose things. Um, and that you
are not the Guinea pig , um,for the, for the particular
matter . So I think that'simportant , um, at the outset ,
(14:13):
um, to think about how yourinformation , um, how your
client's information is gonnabe, is gonna be safeguarded,
right? Because you don't want,you don't wanna , you don't
want an engagement that's,that's designed to be compliant
or prevent exposure to thengive you additional
additional compliance orexposure issues. Um, you know,
(14:33):
sometimes an engagement mightrequire a business associate
agreement , um, to ensure that, um, PHI is safeguarded , um,
or some other, you know, evenjust within their regular
agreement, like really sort ofspelling out sort of how you're
gonna deal with data and thenalso what you're going to do at
the end with the data, right?
And, and thinking about andthinking about that. So , um,
(14:55):
good outside counselingconsultants will be able to ,
um, will be able to addressthis. Um, but it's certainly
something that you should haveon your radar and then be able
to pivot if something comes upthat all of a sudden you do
need , um, data from somewhereelse, or it turns out the data
was was housed elsewhere, that,that you have the ability to
pivot. But certainly I think inan engagement, asking those
questions at the outset is, isthe most important. Mm-hmm
(15:18):
Speaker 4 (15:19):
Absolutely. Yeah .
Well, and for some consultants,they may have unique platforms
that they request be used, andI know for those, for PHI , for
example, there may need to bean IT security review mm-hmm
before, you know, a whole bunchof protected health information
(15:42):
is, is put through thatplatform. I know one other
measure that can be taken iswhen we, we talk about the data
transfer and the access , um,for some projects there may be
the ability to set sort of adeadline on how long the
information will be accessible,you know, for example, through
(16:05):
a OneDrive account or somethinglike that. So it's available
for access for the next 30days, and then it, you know, no
longer accessible removed andtrying to close out , um, that
transfer piece.
Speaker 3 (16:21):
Sure. And that actually makes me think of
another thing like, we'll, youknow, we'll often get kind of
access to a client'senvironment , um, to make
things more efficient, right?
Because, you know, a , a goodconsultant or outside counsel
wants to make their client'slife easier. So instead of, you
know, picking up the phone 20times, like you have kind of
access to the company'senvironment, but you wanna make
sure you turn that off, right?
(16:43):
Like , you don't want it to ,you know, you don't want that
to be indefinite. And sothinking about the users and,
and doing that at the end ofthe engagement, and we'll talk
about this a little bit later,but , um, it's almost just as,
it's almost as important toproperly close something out.
And I think , um, thinkingabout like the data transfer
and all of that is , iscertainly part of that , um, is
certainly part of that exercisefor sure. Yeah .
Speaker 4 (17:05):
Yeah, absolutely. So can you , um, talk for a minute
about the importance ofcommunication between the
in-house counsel , the client,and the consultant?
Speaker 3 (17:19):
Yeah, I mean, to me this is like, this is like the
heart of the engagement. And Ithink what's, I mean, all of
it's important, but this iswhere this to me like is , is
what defines kind of a goodengagement and a not good
engagement, right? Like, andhelps and how you're going to
actually get what you need ,um, kind of under this
agreement. So I think, again,we go back to, you know, at the
(17:42):
beginning, how are you , um,how are you detailing how the
engagement is going to go,right? So you wanna know who at
the consultant is going to bekind of the key point person
that might not necessarilyalways be , um, the partner.
Maybe it is, but you shoulddecide this, right? So who is
kind of the, the person thatyou can go to that's gonna know
(18:03):
kind of the whole scope of thematter , um, gonna know what's
going on, be responsive, who isit? And I think it's even more
important. Who is the in-houseperson? Is it a business
leader? Is it counsel whoshould be copied? Right? So
some, some in-house lawyerswanna be copied on everything,
even if they, you know, don'thave to be in the day-to-day,
(18:24):
they still want to know , um,who needs to get the documents,
who needs to do , um, thereviews, and how much time do
they need? So sort of outliningthat at the beginning I think
can make , um, an engagement ,um, much more , um, much more
efficient. Um, I think it'shelpful when a company has an
(18:47):
internal project manager , um,to kind of oversee things , um,
and define who needs to know ,um, who needs to know who's
doing , um, who's doing what. Ithink, you know, it depends on
the matter whether or not youneed kind of regular check-ins
or whether it's ad hoc. Like, Ithink being sensitive to cost ,
(19:07):
maybe you don't always need aregular meeting, but you also,
you know, want to keep peopleon task. So I'm kind of a
person that's, you know, if youhave , if you have a team and
you have a meeting and peopleknow that they have to report
at that meeting, likesometimes, you know, people
work faster. But I think likethat's something to think about
though, because I think havingmeetings for the sake of
meetings when people arebilling by the hour is not
necessarily , um, is notnecessarily the best thing. So
(19:29):
kind of tailoring it , um,thinking about what you've
communicated in a work plan ,um, at the beginning and, and
kind of thinking about likeeach step and keeping track of
those, like good consultantswill , um, will do that and
figure out when the , um,decision points where the
decision points are , um, andwho needs to , um, make them ,
(19:53):
um, or , or things to thinkabout. Um, I'm curious , um,
about kind of the review ofthe, the consultant or outside
counsel's work from yourperspective. Like what, what
are, what are tips you have forlooking at drafts, reviewing
the work and, and kind of howyou think about that?
Speaker 4 (20:14):
Sure. As outside counsel , I really want to try
to support our consultants andhelp them make sure they're
getting the information theyneed. We don't wanna make the
project harder than it needs tobe. And when we're in-house, we
are working with these clientcontacts daily, we know a lot
(20:37):
of the behind the scenesinformation. And so we can be a
, a really good contact to helpfacilitate information flow and
understanding of theorganization when we get draft
reports. I think it's alsoreally helpful to review them
closely and let the consultantknow if they've got an
(21:01):
executive's title wrong or theyhave included , uh, initials
that aren't correct, given howthe organization typically
refers to a certain departmentor unit, you know, just to help
give them that , uh,credibility as the report moves
(21:21):
forward to a final project.
Speaker 3 (21:23):
Yeah, for sure. I also, I mean, I think kind of
from being in-house and beingin the position I'm in now, I
think it's easy when you'rein-house to, you know, you get
drafts and you, you like,you're busy, right? And so
you've kind of relied on thislike outside professional, and
so you get a draft and likemaybe you look at it, but then,
you know, two weeks laterthere's like another draft, but
(21:44):
then you're sort of rehashing.
And so I think, you know, Ireally encourage clients to
like, you know, dig in when youget the first one
because it is, it's often moreefficient , um, going forward
to kind of take the time toprovide that, that insight that
you're talking about Emily ,um, kind of in real time . Like
I think it leads to a betterwork product when you're,
(22:07):
because you have, theconsultant has value in the
ways we talked about in thebeginning, right? Maybe they
have expertise, they'reunbiased, they have more time,
but you also are deep in thebusiness, right? And so that
value add is, I still thinkessential even when you've
engaged , um, kind ofconsultant or outside party for
sure. Mm-hmm
(22:29):
Alright . So let's talk, we'vealluded to the , the , there's
been a big lead up I feel liketo how you conclude, how you
conclude , um, one of theseengagements. Um, tell us , um,
tell us a little bit about kindof your viewpoint on the best
way to kinda wrap up one ofthese engagements.
Speaker 4 (22:51):
The first thing that you can consider is how are you
transitioning the consultant'sresponsibilities or the advice,
the work product that you'vereceived from the consultant
into the day-to-day operationsof the organization? So take
(23:12):
for example, an audit situationwhere the consultant comes in,
does the audit, there's anaction plan in connection with
those , um, improvements, butwhat can you do in-house to
follow up ? You can of coursecome back in six months to a
(23:33):
year and do a follow upinternal audit and see how ,
how are things going and , um,figure out, you know, is the
plan workable? Do we need tomake some changes even , um,
considering what the consultanthas initially recommended is
(23:55):
that working in real life. Um,so that, that's one piece that
we cover from, from thein-house side. And then in
looking at sort of the wrap upwith the consultant,
considering the retention ofdocuments or other materials,
are we okay with theirretention? Do they have a
(24:18):
policy for how long they'rekeeping things? Is there
anything that we wanna specifythey need to return or destroy
or we need to end access? Likewe, like we talked about,
ideally those types ofprovisions would be addressed
in the agreement, but sometimesit may not be specific to
(24:41):
certain things. And, and youhave to consider how, how to
address that and what othercommunications might be
necessary with the consultantto make sure things are
properly wrapped up. And Ithink sometimes it's hard when
you are not sure if you want toclose out the engagement or
(25:02):
not, right? I mean, sometimesit's wise to leave that
consultant sort of on call , ifyou will, during the time that
you are looking at implementinga corrective action plan
because maybe you will need togo back to them and you wanna
go ahead and have them continueto retain materials and be able
(25:25):
to loop back around to, tocomment or, or weigh in on how
things are going. So it reallyis a strategic, and it's often
not a legal decision, sometimesit's more of a business
decision. Uh , but those aresome of the things , um, that
I'm thinking about at theconclusion.
Speaker 3 (25:43):
Yeah. And I would , I think, I mean, I think that's
right, right? Like particularlywhen you're dealing with sort
of accounting things like myteam is right, like keeping,
you know, we'll keep workpapers because people might
come back and have a question,right? And so you wanna make
sure that it's within theconfines of like
confidentiality and all ofthat, but sort of a record of
what was done and all of thatis super , um, important , uh,
(26:05):
for sure. Which, which you cando and still, you know, deal
with kind of the dataconfidentiality. Um, and I
think, you know, depending onthe nature of the project, you
know, ideally identifying, youknow, who at the organization
is now going to be responsiblefor this and kind of outlining
, um, you know, ideally, I meanprobably in writing sort of
(26:28):
like, okay, here's what wasdone, here's the recommended
next steps and here's whereeverything is, right? Like, so
that if, you know, ifparticularly if the consultant
has really taken the lead onthe project, that it's not like
they disappear in the night,right? Like nobody, you , you ,
you wanna sort of leave , um,the, the organization armed to
go to go forward, kind of likeyou said. Um, and to be
(26:50):
available for, you know, anykind of downstream inquiries or
questions , um, and have havekind of a contact point in case
, um, in case things come up. Idon't think sort of
disappearing in the night evenwhen it, when it's over is, I
don't think that reallyhappened , but it's certainly ,
um, it's certainly good to beavailable.
Speaker 4 (27:08):
Thank you . Well, thank you Janelle . I think
that we've covered everythingthat we plan to talk about
today. So I appreciate , um,your time. Thank you to
everyone who is listening. I dohope that everyone can attend
the A HLA in-house councilprogram in San Diego in 2025
(27:30):
and that we can see you allthere. Thank you.
Speaker 3 (27:33):
Thanks Emily. It was really great being with you
today.
Speaker 2 (27:40):
Thank you for listening. If you enjoyed this
episode, be sure to subscribeto ALA's speaking of health
law, wherever you get yourpodcasts. To learn more about
ah a and the educationalresources available to the
health law community, visitAmerican health law.org.
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