This view was expressed by the Vice President, Associate General Counsel and Chief Compliance Officer at Best Buy Enterprise Services Inc. in the May 2010 issue of Inside Counsel.  “Their ability to triage, to understand an issue as it’s coming in, can save me immense amounts of outside counsel fees and in-house resources.”  But why is this approach reserved only for in-house counsel — it is not.

Perhaps the distinction is not whether an attorney works in-house or outside, but whether the company has found the right attorney.  Companies must seek out counsel that understand what it is like to live with decisions in a business environment — not those who just make insulated and unpractical recommendations.  The difference between a really good attorney that can triage issues and solve problems and “outside counsel” is not the location of the attorney, but their skill, experience and approach.

The General Counsel Hotline provides a business-centric, proactive tool to allow clients the luxury of in-house counsel at a fraction of the cost.  See how this program can turn three of your outside counsel into one.

How many times have you received an email that you probably should not have seen, only because the sender hit Reply All instead of just Reply.  In my practice, I have seen this time after time and on some occasions, the message sent has been very detrimental to the relationship or the transaction.  For example, while working on a contentious transaction, one of the parties on the other side intended to send an email to his colleague, but instead hit Reply All and broadcast his disgust for the seller to the entire working group.  On another occasion, I saw an email chain where an employee, intending only to reply to certain coworkers, hit Reply All and shared his critical comments on his boss with his boss and the rest of the company.

In addition to all the possible mistakes, how flooded is your in-box with multiple replies from a group email with a message like “Thanks.”  These seemingly simple (and unnecessary) responses can bog down an email system and frustrate an email user having to delete endless emails.

I believe that the ‘Reply All’ button should be removed from most if not all email devices.  In my opinion, the potential harm outweighs the benefit and I think a little thought going into replying to an email is a good thing.

So what does this have to do with business and law?  I believe that our dollars need to buy more value, not less – especially in difficult economic times.  Now is the perfect time to examine every dollar you spend and ask whether you are receiving the maximum value from that dollar.  Are your service providers aggressively reducing expenses to lower or maintain pricing?  Are they looking for innovative ways of conducting business that provide you with more value and less cost?  Are they looking for creative win-win strategies to partner with your business?  Most importantly, are they taking the time to understand your business so they can provide their service to you in a way that is most responsive and relevant to your world?

Now is the time to start looking at your service providers the same way you look at peanut butter, mayonnaise and Girl Scout cookies to see if you are experiencing shrinkage or if you are experiencing “value-added” service.  If it is not the latter, you should take steps to move to providers that embrace a different way of conducting business that is relevant to your world.

1. Mutual v. Non Mutual. It is important to initially decide whether the duties of confidentiality will apply to both parties (mutual) or only apply to one party (non-mutual).
2. Explicit Term. The Confidentiality Agreement should have an explicit term that is reasonable under the facts and circumstances of disclosure. Be careful for perpetual confidentiality requirements. Also, think about whether the agreement should expire on a certain date if not executed.
3. Definition of Confidential Information. The definition of what is considered “confidential information” is one of the most important parts of the confidentiality agreement. The recipient usually wants the definition to be as detailed and specific as possible, while the discloser usually wants some flexibility so that information is not inadvertently left out. Another relevant concern is whether to include a requirement that confidential information must be marked “confidential.”
4. Exclusions from Confidentiality. Along with the definition of what IS confidential, the information that IS NOT confidential is quite important. Typical exclusions include: information the recipient already knew, information learned from a third party, information that becomes publicly known, information disclosed pursuant to applicable law or information that is independently developed.
5. Obligations of Recipient. Another vital part of a confidentiality agreement is the obligation that the recipient will not disclose the confidential information it receives. Typical issues here surround disclosure to employees and/or agents and who is responsible if those parties further disclose the confidential information.
6. Recipient’s Standard of Care. The typical standard of care in a confidentiality agreement is that the recipient will treat the confidential information in the same way that it treats its own. Of course, this is only as good as the recipient’s internal control of its confidential information. Alternatively, the confidentiality agreement could contain specific provisions regarding the treatment of confidential information.
7. No License or Representations. Confidentiality agreements may contain a provision stating that no license (implied or otherwise) is granted to the recipient with respect to the confidential information. In addition, the confidentiality agreement may include a provision that states that no representations or warranties are made with respect to the confidential information.
8. Return of Information. The discloser usually wants to ensure there are adequate provisions for the return or destruction of all confidential information upon request or at the end of the agreement. Challenging areas include electronic records, especially those stored in a database or in email and the recipient’s desire to keep archival copies pursuant to document retention policies.
9. Non-Solicitation Provisions. Sometimes parties will include a non-solicitation or non-competition provision in a confidentiality agreement. Although all situations are different, confidentiality agreements are typically not the best place for these types of commitments.
10. Boiler Plate Provisions. While your eyes might be glazed over by the time you get to this section, there are a few key points usually located here. First, make sure the correct governing law applies. Second, the discloser typically wants a provision that allows it to seek injunctive relief upon breach. Finally, make sure the parties are correct in the preamble as well as the signature blocks.