Representing the FDIC
1.1 Scope of the Deskbook
The 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
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
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
"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
- 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,
§ 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
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
There are separate records retention requirements for
underlying support documentation related to your FDIC
invoices. Refer to Section 1.7 below and
Chapter 7, Section 7.11
1.7 Audit Rights
Outside Counsel must permit the FDIC, the FDIC Office of Inspector
General and the General Accounting Office, or their representatives,
to conduct audits or reviews of your FDIC billings, including
previously paid invoices. All paid invoices are subject to audit
regardless of disallowances taken during the fee bill review and
For purposes of subsequent audits, Outside Counsel must retain
copies of all invoice packages and original underlying support
documentation, including time sheets and time and expense adjustment
records, for at least three years after final payment under the
The recordkeeping requirements for electronic billing (timekeeping)
systems are discussed in Appendix C. The FDIC reserves the
right to obtain additional information upon review of any itemized
fee bill or support documentation.
1.8 Fees and Expenses
The Legal Division will consider flat rate and other innovative rate
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 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 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.
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
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
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.
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
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
- 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
Charges for time and expenses related to contacts other than those
authorized may not be paid.
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 and
documents 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 invoice. Under no circumstances may you withhold files
in the event of a dispute with the FDIC.