Outside Counsel Deskbook

Outside Counsel Deskbook
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Information for Prospective Outside Counsel

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• Foreword
• Message from the General Counsel
• The FDIC - Its History and Mission
• Overview of FDIC Process for Retaining Outside Counsel
• Type of Work That May Be Available to Outside Counsel
• Role of Outside Counsel
• Diversity, Equity and Inclusion (DEI)
• Application Procedures
• Conflicts of Interest
• List of Counsel Available
• Legal Services Agreement
• Selection of Potential Outside Counsel
• FDIC Policies and Procedures
• Contact and Resource List

Foreword

The Legal Division of the Federal Deposit Insurance Corporation (FDIC) is fully committed to equal employment opportunity and the implementation of a strong employment program without regard to race, sex, religion, color, national origin, age or disability. It is the policy of the FDIC to provide diversity, equity and inclusion (DEI) for all persons and to prohibit discrimination in all aspects of personnel policies, program practices, contracting relationships and other operations. The FDIC's goals and objectives should be shared by contractors with a demonstrated commitment to promoting DEI. We must all share in this important endeavor.

Message from the General Counsel

The Federal Deposit Insurance Corporation promotes stability in the banking industry, and more broadly, for our economy as a whole. As a provider of deposit insurance for banks and savings associations and as manager or liquidator of the assets and liabilities of closed insured institutions, the FDIC strives to minimize costs to the federal deposit insurance funds associated with these efforts.

The Legal Division supports the mission of the FDIC by providing high-quality legal representation and advice in the most practical, efficient and cost-effective manner. While much of this work is handled in-house, the Legal Division also engages outside counsel to assist in the representation of the FDIC. During the banking "crises" of the 1980s, early 1990s and 2008, the FDIC relied heavily on outside counsel given the large volume of legal work. The current health of financial institutions has occasioned a lesser need for outside counsel on behalf of the FDIC in recent years. However, the FDIC continues to seek competent outside counsel as its needs for representation may accelerate in accordance with prevailing economic conditions.

This publication outlines how outside counsel can become eligible to provide services to the FDIC. Thank you for your interest in representing the FDIC.

The FDIC - Its History and Mission

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.

Overview of FDIC Process for Retaining Outside Counsel

Outside counsel interested in representing the FDIC first must submit an application to the Legal Division via the DocuSign Portal. The Legal Division maintains a "List of Counsel Available" that includes law firms that have submitted completed applications that do not indicate the existence of conditions that would bar a firm from representing the FDIC. The FDIC Legal Division refers to the List of Counsel Available when seeking outside counsel.

Prior to referring a matter to outside counsel, the Legal Division enters into a Legal Services Agreement with the firm. The Legal Services Agreement governs the relationship between outside counsel and the FDIC. The FDIC can then issue referral letters to outside counsel for any specific legal matters for which the FDIC retains a firm.

The process for retaining outside counsel is described in greater detail below. Outside counsel may obtain additional information from the Contact List.

Type of Work That May Be Available to Outside Counsel

The Legal Division may need the services of outside counsel in the following areas, among others: bankruptcy and creditor's rights; collections; environmental law; federal, state and local taxation; foreclosures; real estate and financial transactions, including debt restructure work; general business and corporate legal advice; commercial and other litigation, including director and officer liability litigation, accountant liability litigation, legal and other professional malpractice litigation, and lender liability litigation; appellate litigation; fidelity bonds; pension and profit-sharing plans; defensive litigation; and liquidation of failed insured depository institution assets.

The FDIC generally does not engage outside counsel to assist with regulatory, legislative, or enforcement matters, but may do so in special circumstances.

Role of Outside Counsel

The FDIC Legal Division manages outside counsel's participation in FDIC legal matters and serves as outside counsel's sole contact with the FDIC in most circumstances. The relationship between the Legal Division and outside counsel is a cooperative relationship in which the resources of each are utilized to achieve the most practical, efficient, and cost-effective resolution of FDIC legal matters.

The Legal Division places great importance on the professional skills and conduct of all attorneys representing the FDIC. Because the FDIC acts in the public interest, its attorneys and professional staff, including outside counsel, must observe the highest standards of ethical conduct and demonstrate the highest degree of professional competence and excellence.

Diversity, Equity and Inclusion (DEI)

The FDIC has a strong commitment to DEI and equal opportunity under the law. As part of the FDIC's Legal Contracting DEI Program, the Legal Division actively seeks to consider for engagement firms owned by minorities or women. These Minority and Women owned Law Firms or "MWOLFs" are those that are at least 51% owned and controlled by one or more persons who are members of one or more of the following groups: Black American, Native American Indian, Hispanic American, or Asian American. "Women-owned firms" are those that are at least 51% owned and controlled by non-minority women. In addition, the FDIC seeks to utilize diverse partners and associates who are employed at majority owned law firms. Utilization of diverse partners and associates by majority male-owned firms (Diverse Attorneys) is a factor the Legal Division considers when making referrals.

The Legal Division also seeks to consider MWOLFs for engagement to provide legal services in association with majority firms through "co-counsel" arrangements.

The Legal Division supports MWOLFs, Diverse Attorneys and the FDIC's DEI efforts by providing a DEI Counsel to assist firms in the application process as well as attendance at minority and diversity bar association conferences and events nationwide.

Similarly, the FDIC supports all efforts on the part of our outside counsel to employ and engage companies, firms, individuals, and veterans with disabilities, including individuals who qualify for veterans' preference.

Application Procedures

Outside counsel (including law firms and solo practitioners) interested in representing the FDIC can review application materials from the FDIC's website at https://www.fdic.gov/about/doing-business/outside-counsel/appackage.html. While you may view the forms on this webpage, note that the FDIC now accepts the application package exclusively through the DocuSign portal. The FDIC will reject any forms not submitted through DocuSign.

The Legal Division requires an applicant to provide information about itself including: the areas of expertise for which the firm is offering its services, together with a description of work recently performed and a list of client references; an extensive disclosure of conflicts of interest or potential conflicts of interest; a description of its information security policy or plan; an identification of the firm's malpractice carrier and description of the coverage; and a statement that the firm will absorb the cost of developing and understanding the FDIC's specialty areas of the law.

The application includes a standard form Legal Services Agreement (LSA) that both outside counsel and the FDIC must sign in order for the firm to receive referrals. Outside counsel must identify on the fee schedule attached to the LSA the following information as to each time charger in the firm who may provide services to the FDIC: state licenses; years in practice; status within the firm as partner, associate, counsel, paraprofessional, or other; billable rate under the firm's usual rate structure; proposed hourly rate to the Legal Division; the percentage of discount the firm is offering to the FDIC from its usual rates; and a timekeeper ID number chosen by the firm. The FDIC may request additional information concerning the firm. Outside counsel is responsible for updating or correcting information submitted in its application materials.

Conflicts of Interest

Outside counsel must disclose in writing to the Legal Division any actual or potential conflict, or appearance of a conflict, as part of its application. In accordance with 12 C.F.R. Part 366, outside counsel must submit a form as part of its application in which it makes representations and certifications concerning its fitness and integrity to enter into an LSA with the FDIC. Outside counsel must be free of any conflict of interest, unless the Legal Division waives the conflict in writing. The FDIC publishes its policy relating to outside counsel conflicts of interest at: https://www.fdic.gov/about/doing-business/outside-counsel/2021-sop-conflictsofinterest.html.

List of Counsel Available

If the Legal Division determines that the information submitted by outside counsel in its application is complete and does not indicate the existence of any conditions that would bar retention of the firm by the FDIC, the Legal Division will sign the completed LSA and enter the firm on its List of Counsel Available (LCA). The firm is then eligible to be referred legal matters.

Neither submission of the application by outside counsel nor review of the materials by the Legal Division guarantees that the firm will be added to the LCA, which is in the sole discretion of the FDIC Legal Division. Further, addition to the LCA does not guarantee that the firm will subsequently receive any referral of work. In order to remain on the LCA longer than two years, outside counsel must update its application prior to the expiration of the firm's LSA. A firm may not represent that it has been “approved” as outside counsel for the FDIC by virtue of being added to the LCA.

Legal Services Agreement

The LSA governs the relationship between the FDIC and outside counsel. Absent compelling reasons, no increase in the fee schedule attached to the LSA is permitted during its two-year term. The terms of FDIC policies and procedures, including the Outside Counsel Deskbook, are incorporated by reference into the LSA. Prospective outside counsel may download the Outside Counsel Deskbook from the FDIC's website at https://www.fdic.gov/about/doing-business/outside-counsel/deskbook.pdf. Execution of an LSA by outside counsel constitutes the agreement by the firm to be bound by the terms of FDIC's policies and procedures, as they may be updated or amended.

Selection of Potential Outside Counsel

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

• The experience of outside counsel in the type of legal work required to be performed.
• The geographic location of outside counsel.
• The capacity of outside counsel to handle the anticipated volume of work.
• Whether the fees or rates proposed by outside counsel are competitive in comparison with other firms' rates.
• Whether the proposed rates reflect discounts.
• 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.
• The diverse composition of the firm, including the availability of Diverse Attorneys to perform legal work.
• If the firm previously worked for the FDIC, whether it has a verifiable reputation for competence, integrity, cost effectiveness and cooperativeness.

FDIC Policies and Procedures

Outside counsel retained by the FDIC must comply with the Corporation's policies and procedures, including the Outside Counsel Deskbook. For example, as required by the Outside Counsel Deskbook, outside counsel must prepare a budget at the commencement of a matter and must submit detailed fee bills on a regular basis in accordance with the budget. As a further example, the FDIC pays outside counsel electronically and requires outside counsel to provide information necessary for this form of payment. The details of these and other requirements, as well as the Legal Division's billing procedures, are set forth in the Outside Counsel Deskbook.

In the event of a conflict or inconsistency between this document and other FDIC policies and procedures, or other documents governing the retention of outside counsel or referral of particular matters to outside counsel, the terms of those other documents govern.

Contact and Resource List

FDIC Website https://www.fdic.gov

FDIC Outside Counsel Home Page https://www.fdic.gov/about/doing-business/outside-counsel/index.html

Telephone Inquiries for Outside Counsel Matters
1(877) 275-3342 (ask for the Legal Services & Special Contracts Group or the "outside counsel staff")

TDD: (800) 925-4618

If calling from the Washington, D.C. area:
(703) 562-2331

Email Inquiries:
LSSCG@fdic.gov (the recommended method of communication)

Written Inquiries:

FDIC Legal Division
Attn: Legal Services & Special Contracts Group
3501 Fairfax Drive
Room-VS-E-6097
Arlington, VA 22226

FDIC Legal Division
Legal Contracting Diversity, Equity, & Inclusion Program
3501 Fairfax Drive
Room-VS-E-6042
Arlington, VA 22226
FDICLegalDivisionDEIprogram@FDIC.gov