The Legal Division attempts to select outside counsel on a competitive basis. When retaining outside counsel to perform legal services, the Division considers several factors including:

• Whether the utilization of outside counsel is the most practicable, efficient and cost-effective manner in which to resolve the matter for the FDIC.
  
  
• The experience and reputation of outside counsel in the type of legal work required to be performed.
  
  
• The geographic location of outside counsel.
  
  
• Whether the firm is minority- or women-owned or will staff potential work on FDIC matters with minority or women attorneys.
  
  
• The capacity of outside counsel to handle the anticipated volume of work.
  
  
• Whether the fees or rates proposed by outside counsel are reasonable in light of prevailing market rates for the type of services to be provided, and reflect discounts.
  
  
• Whether outside counsel is prepared to handle related matters of a routine or recurring nature at lower rates or under other alternative fee arrangements.
  
  
• Whether provision of legal services by outside counsel would constitute or give rise to an actual or potential conflict of interest or the appearance of a conflict of interest.
  
  
• Whether a high degree of cooperation between representatives of the Division and outside counsel may be expected.
  

Referral of Matters to Outside Counsel

Outside counsel usually receive assignments from FDIC Legal Division offices having jurisdiction over matters where outside counsel's office is located, or from the Professional Liability Section of the Legal Division, which is located regionally and in Washington, D.C. From time to time, other sections of the Division also retain outside counsel. Additionally, asset servicers under contract to the FDIC may be required to use outside counsel that are on the List of Counsel Available and have an executed Legal Services Agreement.

The Legal Division may permit outside counsel engaged by a financial institution that subsequently fails to complete pending matters if the Legal Division determines it is economical and practical to do so and no unwaived actual or potential or appearance of conflict exists. However, the Legal Division may condition the continued employment upon renegotiation of rates and execution of a Legal Services Agreement.

The Division seeks to avoid reliance on any single firm or group of firms in any geographic area. As a result, we generally seek the services of several firms in large metropolitan areas and may establish ceilings on the number of referrals or amount of billings to ensure diverse representation.

Application Procedures

Initial Inquiry

The FDIC Legal Division maintains a List of Counsel Available. If you are interested in working for the FDIC as outside counsel, you should initiate the application process by writing the Legal Division at the address on the inside back cover of this Guide. The Legal Division will provide you with application materials and instructions, as discussed below.

The Application Materials

The steps and documentation required of law firms applying to be listed on the List of Counsel Available are explained in the application materials. Briefly, the FDIC requires an applicant to provide: a narrative statement of the firm's capabilities to provide legal services sought by the FDIC; a statement that the firm will absorb the cost of developing an understanding of the FDIC's specialty areas of the law; an identification of the firm's malpractice carrier and description of the coverage; a discussion of the firm's ability to provide status reports, as may be requested; and an extensive disclosure of conflicts of interest or the appearance of a conflict of interest.

You should highlight areas of expertise and provide information about the members of the firm who practice in each area, years of experience, and the nature and illustrative examples of that experience. State the principal focus of the firm's practice (e.g., commercial litigation, lender liability), as well as its appellate ability. Provide recent examples of the firm's experience in your principal practice areas, with client references. Specifically state whether the firm has had any experience in professional liability or fidelity bond matters and identify the members of the firm with expertise in these areas, their years of experience, and the nature of that experience.

Outside counsel must identify on the fee schedule as to each attorney or paraprofessional in the firm who may provide services to us: state licenses; area(s) of expertise; years in practice; time with the firm; status within the firm as partner, associate, or paraprofessional; billable rate under the firm's usual rate structure; hourly rates to the Legal Division; lowest billable rate currently in effect with public sector or non-profit clients; and minority and women attorney status or information. Each office of a multiple office law firm that wishes to be considered for retention must provide the required information. Even an office that does not wish to be considered for FDIC work must comply with the requirement to provide conflict of interest information. Additionally, other information concerning the firm may be requested. Outside counsel are under a continuing duty to update or correct information submitted in the application materials. An authorized representative of the firm must execute the Legal Services Agreement, as discussed below. If the firm experiences a significant change in its structure or ownership, or acquires a new federal Tax Identification Number, a new application must be submitted with information on the new entity and a new Legal Services Agreement must be executed.

Retention

Notification

After a law firm wishing to be added to the FDIC's List of Counsel Available has submitted a complete application package, the Legal Division will advise the firm in writing of the status of the application. Neither submission of the application materials by outside counsel nor review of the materials by the Legal Division guarantees that the firm will be added to the List of Counsel Available or subsequently receive any referral of work.

The firm may not represent that it has been "approved" as outside counsel for the FDIC. Outside counsel are required to comply with all applicable mandatory bar, state, federal, and other ethics advertising rules, including those restrictions pertaining to claims of "expert" status, expertise, or specialization. Similarly, outside counsel may not quote FDIC materials or staff comments as to performance evaluations, if any. Outside counsel may list the FDIC as a representational client in published materials so long as outside counsel adheres to the above-noted restrictions.

List of Counsel Available

If the information you submit does not indicate the existence of any conditions that would bar retention of the firm by the FDIC, the Legal Division will enter the firm on the List of Counsel Available and will so notify the Legal Division office(s) that correspond with the firm's geographic location(s), and, if appropriate, the Professional Liability Section, and/or other specialized sections within the Legal Division. The Legal Division will advise the firm in writing when each step is completed.

Firms entered on the List of Counsel Available cannot be assured that their services will be needed.

Legal Services Agreement

If rates, abilities, areas of expertise, conflicts of interest and other factors used in evaluating outside counsel on a competitive basis are acceptable to the Legal Division and there is a need for additional outside counsel in the pertinent geographical area, the Legal Division will contact the firm to negotiate the proposed fee schedule attached to the Legal Services Agreement ("LSA") that the firm executed and submitted with the application materials (See Appendix B).

A law firm with multiple offices must establish a fee schedule for each office of the firm that has applied to be listed on the List of Counsel Available. The fee schedule for each such office will be appended to the LSA for that firm and will be filed with the Legal Division. The Legal Division will execute only one LSA for the firm to provide legal services to the FDIC for the term of the LSA.

A Legal Services Agreement that is signed by the firm is not effective unless and until the Legal Division signs and dates it. Unless otherwise provided for in the LSA, the effective date will be the date the LSA is signed and accepted by the Legal Division. The term of the LSA will be two years. Renewal of an LSA must be negotiated with the Legal Division.

Absent compelling reasons, no increase in the fee schedule attached to the LSA will be permitted during its term. Outside counsel must submit a written request to the Legal Division to add additional personnel to a fee schedule. The hourly rate of any attorney or paraprofessional may not exceed the range of rates evidenced by the existing fee schedule. The approved revised fee schedule will be attached to the LSA.

The terms of the Legal Services Agreement, among other FDIC requirements, govern the relationship between the FDIC and outside counsel. The terms of the Guide are expressly incorporated into the LSA. Execution of an LSA by a firm constitutes an acceptance by the firm to be bound by the terms of the Guide, as it may be updated or amended.

Interview

The Legal Division, upon a determination that it needs new or additional outside counsel with a particular expertise, may contact the firm for an interview with the appropriate Division staff. For example, if the Division is seeking outside counsel in the professional liability area and a firm has expertise in that area, the Professional Liability Section may contact the firm.

Retention

At the time of an engagement of outside counsel to provide legal services under an LSA, outside counsel must confirm that no material changes have occurred that affect the certifications contained in the application materials submitted to the Legal Division.