The Guide has been prepared by the Legal Division ("Legal Division" or "Division") of the FDIC. The Guide is designed to provide information to attorneys and law firms who are or seek to be engaged to represent the interests of the FDIC ("outside counsel" or "firm").
The Guide is also applicable to outside counsel previously engaged by the Resolution Trust Corporation ("RTC"). Upon the sunset of the RTC on December 31,1995, the FDIC, as manager of the FSLIC Resolution Fund ("FRF"), succeeded the RTC with respect to the assets and liabilities of the RTC in its corporate capacity. The RTC's conservatorship and receivership responsibilities also transferred to the FDIC. Therefore, references in this Guide to FDIC actions, requirements, policies, and procedures will be interpreted to include active/closed matters and outside counsel formerly retained by the RTC. This Guide supersedes the previous editions of both the FDIC and RTC Guides for Outside Counsel.
The Guide serves a dual purpose. By its terms the Guide prescribes the requirements
and procedures for retention by the FDIC and, importantly, it sets forth the epectations and many of the terms of the relationship between the FDIC and outside counsel upon retention.
The Guide is organized into three parts. The first section of the Guide is devoted to describing the FDIC, and its legal representation needs and the role of outside counsel. The second section of the Guide outlines the procedures outside counsel must follow in order to be retained by the FDIC. The remainder of the Guide sets forth various other terms and conditions of the representation relationship. The Guide, as amended from time to time, is incorporated in its entirety into the Legal Services Agreement between outside counsel and the FDIC and the RTC.
Legal Representation Requirements
The FDIC was chartered by the United States Congress in 1933 to promote and maintain public confidence in the nation's banking system. The FDIC's functions include: oversight of the safe and sound operation of insured depository institutions; resolution of financially troubled or insolvent institutions; managing the assets and liabilities of failed insured depository institutions; honoring the FDIC's insurance obligations; prosecuting and defending litigation related to the FDIC's operations; and ensuring compliance with applicable laws and regulations.
The Legal Division provides the FDIC with comprehensive legal services and support in the following areas, among others:
- Liquidation of failed insured depository institutions
- Professional liability, trial, and appellate litigation
- Enforcement of FDIC bank supervisory powers
- Criminal restitution
- Alternative dispute resolution
- Assisted transactions and other "open bank" legal matters
- Regulations and legislation
The work of the Division is nationwide. Headquartered in Washington, D.C., the Legal Division has field offices strategically located throughout the country, as shown in Appendix A.
Legal Services Sought
The Division engages outside counsel primarily to provide legal services in connection with asset liquidation, conservatorship and receivership activities. Due to the variety of matters that may arise from any failed institution and the number of institutions for which the FDIC is responsible, the Division requires the services of attorneys experienced in many areas of the law. Some of the matters for which the FDIC may engage outside counsel include:
- Appellate practice
- Bankruptcy and creditors' rights
- Collections
- Commercial litigation
- Director and officer liability litigation
- Environmental law
- Federal, state and local taxation
- Fidelity bonds
- Foreclosures
- General business and corporate law advice
- Accountant liability litigation, legal and other professional malpractice
litigation
- Lender liability litigation
- Loan participation litigation
- Pension and profit sharing plans
- Real estate and financial transactions, including debt restructure work
- Securities filings
The Division also uses outside counsel for advice with respect to corporate and securities issues that arise in assistance transactions. The FDIC generally does not engage outside counsel to assist with regulatory, legislative, or enforcement matters.
Role of Outside Counsel
Outside counsel work with the Division in providing legal services to the FDIC. Management of all legal affairs of the FDIC rests with the Legal Division, which serves as outside counsel's sole contact with the FDIC except in limited circumstances, as referred to elsewhere in this Guide. The relationship between the Legal Division and outside counsel should be a cooperative relationship in which the resources of each may be utilized to achieve the most practicable, efficient, and cost-effective resolution of the matter.
The Division reserves the right to participate in or to assume complete responsibility for any matter referred to outside counsel. This may include providing outside counsel with prior briefs and research, or staffing a matter jointly with outside counsel. Outside counsel shall not subcontract legal work to others without the prior written authorization of the Legal Division attorney responsible for the matter ("FDIC supervising attorney").
The Division places great importance on the professional skills and conduct of all attorneys representing the FDIC. Because we act in the public interest, our attorneys and professional staff must observe the highest standards of ethical conduct and demonstrate the highest degree of professional competence and excellence.
This Guide is an integral part of the terms under which outside counsel are engaged to represent the FDIC. Every attorney and paraprofessional who provides services to the FDIC must read, maintain familiarity with, and adhere to this Guide.
Equal Employment Opportunity and Minority and Women Outreach Program
The FDIC has a strong commitment to equal opportunity under the law. The Legal Division actively seeks to engage firms owned by minorities or women. Similarly, the FDIC supports all efforts on the part of our outside counsel to employ disabled persons and Vietnam era veterans. "Minority-owned firms" are those that are at least 51% owned and controlled (through day-to-day management) by one or more persons who are members of one or more of the following groups: Black American, Native American, Hispanic American, or Asian American. "Women-owned firms" are those that are at least 51% owned and controlled (through day-to-day management) by non-minority women. Any firm claiming minority- or women-owned status must be certified by the FDIC.
The Division also seeks to engage minority- and women-owned firms to provide legal services in association with other firms ("co-counsel" arrangements). Additionally, we specifically encourage firms that are not minority- or women-owned firms to assign work on FDIC matters to minority and women attorneys within their firms. Indeed, the Division requires information on such assignments to be maintained and reported to the FDIC.
The FDIC provides assistance to minority- and women-owned firms and minority and women attorneys within other firms with respect to the application process, waiver of conflicts, or other matters relating to the retention of outside counsel. The Legal Programs Branch of the Office of Equal Opportunity will work with the Legal Division to ensure the inclusion of minorities and women to the maximum extent possible. The Legal Programs Branch may be contacted for assistance as shown on the inside back cover of this Guide.
