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Outside Counsel Electronic Billing Deskbook
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  1. Representing the FDIC
  2. Conflicts of Interest
  3. Legal Services Agreement
  4. Legal Referral
  5. Case Management
  6. Case Plan and Budget
  7. Electronic Invoice (E-Invoice) Preparation and Submission
  8. Legal Matter Closeout
  9. Post-Representation
 10. Foreign Laws Firms
  1. Contacts
  2. Statutory Compliance
  3. Record Retention Guidelines for E-billing
  4. Legal Services -
    Delegations of Authority
  1. Litigation & Resolutions Branch
  2. Corporate Operations Branch
  3. Supervision Branch
  4. Consumer & Legislation Branch
  1. Validation Criteria

Representing the FDIC

1.1 Scope of the E-Billing Deskbook
The E-billing Deskbook describes the policies and procedures that must be followed by Outside Counsel beginning with the execution of a Legal Services Agreement (“LSA”) (refer to Chapter 3), continuing through retention and concluding with post-representation responsibilities.

1.2 Identifying the FDIC as a Client
You may list the FDIC as a client in published materials as long as you adhere to the following restrictions.

You may not represent that you have been "approved" as Outside Counsel for the FDIC. As Outside Counsel, you are required to comply with all applicable ethics rules regarding advertising, including those restrictions pertaining to claims of "expert" status, expertise, or specialization. Similarly, you may not quote FDIC materials or staff comments as to performance evaluations, if any.

1.3 Statutory Compliance
The Legal Division requires all Outside Counsel to be familiar and comply with all applicable statutes and orders, as well as regulations, policies, procedures and directives promulgated pursuant thereto. Refer to Appendix B for a representative list of applicable federal laws and regulations.

1.4 Equal Employment Opportunity and Diversity
The FDIC has a strong commitment to equal opportunity under the law. As part of the FDIC's Minority and Women Outreach program, the Legal Division actively seeks to consider for engagement firms owned by minorities and/or women. Moreover, the FDIC expects its contractors and subcontractors to take affirmative action to ensure that all individuals have an equal opportunity for employment, without regard to race, color, religion, sex, national origin, disability or status as a qualified covered veteran as defined by 38 U.S.C. § 4212(a)(3).

"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;
  • Hispanic American; 
  • Native Americans;
  • Asian Pacific Americans;
  • Sub-Continent Asian Americans; and
  • Members of other groups designated from time to time by the Small Business Administration (SBA).

"Women-owned firms" are those that are at least 51% owned and controlled (through day-to-day management) by non-minority women. Firms claiming minority- or women-owned status must certify their status as such to the FDIC, and the FDIC may require additional information to verify the status.

The FDIC also participates in the Small Business Administration’s (SBA’s) Socially Disadvantaged Business (SDB) program.  However, at this time, legal services are not an industry recognized by the SBA for SDB benefits.

1.5 Ethical Considerations
The FDIC expects you to maintain the highest ethical standards and to comply with all applicable laws, rules and regulations governing ethical conduct. In particular, you should be cognizant of the following:

  • To avoid any appearance problem, neither you nor any person associated with your firm shall provide (or seek reimbursement for) any gift, gratuity, favor, entertainment, loan or other thing of monetary value to any employee of the FDIC which is not in conformity with 5 C.F.R. § 2635, Subpart B, of the Standards of Ethical Conduct for Employees of the Executive Branch. While private firms may host social or holiday functions for business associates and others with whom they do business, there are limitations on attendance at these events by FDIC employees. With few exceptions, FDIC employees may not solicit or accept gifts from anyone who does, or seeks to do, business with the FDIC.
  • Your firm may hire former FDIC employees, but as former employees they are subject to the government-wide post-employment statute, 18 U.S.C. § 207, which affects what they can do for your firm. Generally, however, former FDIC employees may work on matters that they worked on personally or which were under their supervision while at the FDIC, with special consideration and caution given to representing these matters back before the FDIC or to the Federal government.
  • If an FDIC employee was involved in negotiating your firm’s current LSA, that individual upon joining your firm may not, during the duration of the LSA, renegotiate the rate schedule, request changes in service providers or be involved in any matter pertaining to questions of the competence of the services provided by your firm under the LSA.

For more information, contact the Ethics Section, FDIC Legal Division, Washington, D.C. at (877) 275-3342.

1.6 File Retention
All information maintained in the legal matter files, whether supplied by the FDIC or third parties or created by you, including attorney work product, is the property of the FDIC.

Under no circumstances may you withhold files for any reason including a dispute over payment.

Upon completion or termination of the matter, you are responsible for the preservation of the files until the FDIC authorizes the files’ destruction or the FDIC orders their transfer to the FDIC or another organization. Refer to Chapter 8 and Chapter 9.

NOTE:  There are separate records retention requirements for underlying support documentation related to your FDIC electronic invoices (“E-invoice”).  Refer to Section 1.7 below and Chapter 7, Section 7.10

1.7 Audit Rights
Outside Counsel must permit the FDIC, the FDIC Office of Inspector General and the Government Accountability Office, or their representatives, to conduct audits or reviews of your FDIC billings, including previously paid invoices or E-invoices. All paid E-invoices are subject to audit regardless of disallowances taken during the fee bill review and approval process.

For purposes of subsequent audits, Outside Counsel must retain E-invoice files, original underlying support documentation for expenses, subcontractor invoices, and original or electronic time sheets and time and expense adjustment records, for at least three years after final payment under the legal referral.

The recordkeeping requirements for electronic timekeeping systems are discussed in Appendix C. The FDIC reserves the right to obtain additional information upon review of any electronic invoice package submission or support documentation.

1.8 Fees and Expenses
The Legal Division will consider flat rate and other innovative rate proposals.

You must include in your fees or hourly rates for legal services your costs of doing business, including all "overhead," general and administrative costs, fringe benefits, and profit. You may not submit and the FDIC will not pay E-invoices for such costs of doing business. "Markups" above any costs actually incurred by you for any supplies or services obtained by you for the Legal Division shall not be charged to the FDIC; any discounts you receive are expected to be passed on to the FDIC.

The FDIC will only pay reasonable costs for services rendered or supplies provided in the course of representation. The E-invoice process is discussed in Chapter 7.

The FDIC expects that computer software or other intellectual property required in the course of your representation of the FDIC will be included as an overhead component of your fees or hourly rates. Therefore, FDIC shall not reimburse you for such expenses absent prior written approval from the Senior Counsel of the FDIC Legal Information and Technology Unit (LITU). All computer software and other property purchased at FDIC expense shall be the property of the FDIC and shall be delivered to the FDIC at closeout of the matter (case) in accordance with the procedures contained in Chapter 8. All licenses of computer software and other intellectual property shall name the FDIC as the licensee or shall be assignable to the FDIC without any additional cost upon close out of the matter.

NOTE:  The submission of erroneous bills or requests for reimbursement of inappropriate charges may result in sanctions. Under no circumstances may Outside Counsel attempt a set-off or recoupment, obtain a charging or retaining lien, or withhold files in the event of a dispute over payment for services rendered.

1.9 Malpractice Insurance
You are required to maintain adequate malpractice insurance when representing the FDIC in all matters. You must advise the Legal Division of the identity of your malpractice insurance carrier, the extent and duration of your coverage, and limitations on your coverage that may affect the FDIC. You must furnish a copy of the malpractice insurance policy upon request by the Legal Division of the FDIC or the Office of Inspector General.

1.10 Contacts with the Media and the Public
Extra-judicial statements regarding FDIC matters are almost always inappropriate and often counterproductive. If media representatives contact you concerning cases that you are handling on behalf of the FDIC, you may confirm factual matters that are a matter of public record. Under no circumstances shall you comment to the media on other specifics of a case, such as potential appeals or settlements, or on more general matters involving the FDIC's policies and procedures or decision-making.

FDIC Office of Public Affairs
All media inquiries concerning FDIC matters must be referred to the FDIC Office of Public Affairs in Washington, D.C., at (877) 275-3342 for response. Additionally, you should promptly advise the FDIC Oversight Attorney of the inquiry and referral to the FDIC Office of Public Affairs.

Speaking Engagements
If you address the public at seminars or other functions on topics pertaining to the FDIC or laws and regulations affecting the FDIC, you must disclose to the audience that you are making the presentation on your own behalf and not on behalf of the FDIC.

1.11 Role of FDIC Oversight Attorney
Attorneys in the Legal Division are responsible for managing all legal assignments and litigation, including matters referred to Outside Counsel. Outside Counsel must consult with the Oversight Attorney on all strategic and major tactical decisions associated with a matter.

On routine cases the Legal Division does not expect to be involved in every decision. However, important decisions always should be raised with your Oversight Attorney in sufficient time to allow for meaningful review and consideration of the issues especially if a case involves policy issues or substantial sums.

At the Beginning of the Legal Matter
It is important at the beginning of a legal matter to identify clearly the objectives to be achieved and possible alternative courses of action. As a general matter (depending in part on the scope of the assignment), the Oversight Attorney will:

  • Define the goals and objectives to be achieved.
  • Outline your role and expected duties.
  • Discuss with you the scope of the required case plan and budget designed to achieve the FDIC's goals and objectives in a cost-effective manner. Refer to Chapter 6.

During the Course of the Legal Matter
During the course of the legal matter, the Oversight Attorney will:

  • Review your work and may participate in representation.
  • Monitor progress against the case plan and budget.
  • Review and obtain approval of any significant changes in the case plan or budget.
  • Keep FDIC business personnel informed of developments.
  • Coordinate contacts between Outside Counsel and FDIC business personnel, as discussed below.
  • Evaluate your performance as Outside Counsel on an on-going basis. Among the items evaluated are the quality of the services provided, cost consciousness, responsiveness to Legal Division and business personnel, effective management of matters referred, and compliance with FDIC policies and procedures.

Contacts with Other FDIC Offices
Generally all contact with non-legal FDIC personnel should be made through the Legal Division. This policy permits the most efficient utilization of resources and serves to avoid duplication of effort and to minimize costs. Therefore, you are expected to direct all communications to your Oversight Attorney, except in the following circumstances:

  • When referring a media inquiry to the FDIC Office of Public Affairs;
  • When your Oversight Attorney indicates otherwise;
  • When immediate action is required and neither your Oversight Attorney nor his/her supervisor can be reached;
  • When responding to the FDIC's Office of Inspector General; or
  • When seeking limited factual information that can be obtained in a relatively brief amount of time (such as payoff figures for a loan or the address of a borrower).

Under special circumstances or in certain types of litigation, your Oversight Attorney may make arrangements for more extensive direct contact with FDIC business personnel. This might occur, for example, in a case involving an in-depth investigation of an institution's records.

Charges for time and expenses related to contacts other than those authorized may not be paid.

1.12 Termination
The Legal Division reserves the right to discontinue its relationship with you for any or no reason. Notification will be confirmed in writing. You will be contacted and provided instructions concerning disposition of files and other FDIC property. Your cooperation during transition is an ethical obligation and necessary for an orderly transfer of legal matters.

You must forward upon demand of the Legal Division all files, documents, original underlying support documentation for expenses, subcontractor invoices, and electronic time sheets concerning the terminated legal matter(s) including all work product of your firm. It is important that you promptly forward files as instructed. Failure to do so may delay or prevent payment of your final E-invoice. Under no circumstances may you withhold files in the event of a dispute with the FDIC.

Last Updated 08/11/2009 legal@fdic.gov

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