When it comes to hiring local professionals – legal representatives or otherwise – asking six key questions will help make sure you get the best possible outcome.
Choosing local professionals to represent your company is part of entering a new market. When analyzing the situation, leadership might ask: “Why should we enter a new market?” or “Where should we go next?” Once answered, follow-up questions could include: “Who should lead our team?” “What will our business model look like?” “When should we enter?” And, of course, “How should we do it?” Those are all very important questions, but deliberately asking them together was probably not a technique taught to you in business school or law school. I think I am correct that famous Chinese military strategist and philosopher Sun Tzu did not specifically instruct leaders to ask “who, what, where, when, why and how” when planning an attack (or a merger). Stephen Covey gave us seven habits of highly effective people but did not encourage those six questions specifically. Motivational speaker Simon Sinek told us to ask “why” first, but even he did not discuss the importance of the other five familiar questions. In my case, it was my third-grade teacher, Mrs. Curry, who taught me the importance of the 5 W’s and an H (5W1H).
I’m not here the one-up Sun Tzu, Mr. Covey or Mr. Sinek. Rather, I am merely encouraging you to take the same approach when engaging local professionals that you would when choosing a new market. For example: Why do you need local counsel for a certain project? What is the project? Where should local counsel be located? When should they be engaged? Who is the right choice to use as local counsel? How do you find the right firm?
I am a land use attorney in Pennsylvania. My practice focuses on entitlements, approvals, and permits from state agencies and local government. We are frequently engaged as local counsel to navigate the tangled web of authority in the commonwealth. In Pennsylvania, local government includes 67 counties and 2,561 municipalities. Each municipality has its own land use regulations. Indeed, developing property in Philadelphia or Harrisburg is quite different than in rural townships. As a result, my practice provides a great foundation for exploring how the 5W1H technique we learned in elementary school can be applied to choosing local professionals for a new project. The example questions answered below focus on finding an appropriate local land use attorney. However, each could be applied to any local need.
Unlike Mrs. Curry, who would have us start with “who,” or Mr. Sinek, who would have us start with “why,” our approach must start with “what.”
What Is the Project?
You must understand the scope of your project. For example, obtaining approval for a professional office probably has fewer hurdles than obtaining similar approvals for a warehouse or a high-traffic drive-thru restaurant. In the first case, you might start by engaging a local civil engineer to put together a land development plan. Once completed, you might determine that the approval process is straightforward and unlikely to meet opposition, such that local counsel is not needed at all. Conversely, you may know that some residents are likely to oppose your pipeline, shopping center or casino. Perhaps they may even actively protest against it. In that case, you will undoubtedly want local land use counsel to represent you.
Why Is Local Counsel Needed?
Why do you need local land use counsel for this project? As mentioned above, if the project is likely to be opposed, you will need local counsel to control the process. Local counsel can help ensure that your application is compliant with local rules and regulations. Local counsel also can keep the municipality and the opposition in check should they attempt to work outside of legally required processes. Sometimes, local counsel is helpful simply because of their contacts. Land use attorneys spend a significant amount of time educating and engaging with elected officials and municipal staff. By building these relationships, we get to know the individuals in local government, who come to trust us and consider us experts. Those relationships take time to build, but they make the approval and permitting process much smoother when we submit a challenging project. Alternatively, your engineer might inform you that you need zoning relief from the local zoning hearing board or the governing body. As with any hearing or legal procedure, you will want competent counsel to represent you.
Where Should Local Counsel be Located?
Put simply: close to the project. Although “close” is a relative term, it is an important one for three reasons. First, most small, rural municipalities are uncomfortable, if not threatened, by “big-city attorneys.” (Although, there may be times where that is exactly what you want.) Conversely, even the best rural land use attorneys know better than to work inside the limits of major cities, because city politics and processes are just different. Therefore, finding local land use counsel near the project – or from a similar locale – is important. Relatedly, counsel located near the project are more likely to already have a good rapport with the municipality’s governing body and staff. The concept is similar to how a litigator who has been before a certain judge on multiple occasions comes to learn the judge’s thought process. Local counsel understand the hot-button or target issues in the municipalities where they work. In addition, you gain instant credibility by association and can avoid pitfalls that might not be so obvious to an “outsider.”
Who Should You Engage, and How?
You need local counsel who can provide you with the benefits listed above at a cost that fits your budget or cost structure. Therefore, when interviewing a firm, ask how many projects they have worked on in the municipality and the outcome of those projects. Also ask about the firm’s land use bench. Land use is a niche practice and, at least in Pennsylvania, it requires attorneys to attend evening meetings. You want to be sure that the firm you choose has the depth and contacts to get your approval. You also want to be comfortable that you will have legal representation if one of their attorneys has two or more conflicting meetings on the same night. Accordingly, finding a firm with a deep land use bench is vitally important.
But how do you find that firm? Google only gets you so far. I suggest reaching out to contacts in the project’s region to ask if they know which is the “go-to” firm. Another good option is contacting associations to find out who the best land use attorneys in the area are. For example, if your project is in a township in Pennsylvania, you could reach out to the Pennsylvania State Association of Township Supervisors for a referral. Alternatively, if your usual outside counsel is a member of ALFA International (a lawyer referral group), they probably can get you in touch with a local firm of the same general size and caliber that you are used to working with. Finally, it might be appropriate to contact the municipality to ask who the staff recommends. It is often the relationship between municipal staff and the land use attorney (or other land use professionals) that makes or breaks a difficult project.
Next time you have an issue in an unfamiliar market, pause and work through the what, why, who, how and when.
When Should You Engage Local Counsel?
Depending on your project, this question could be as important as “who.” I am biased, but I recommend bringing in local land use counsel early in the process. It should be no surprise that the legal cost to file, litigate and win a land use appeal is much higher than the cost associated with the preceding application process. Moreover, the potential negative publicity often is worse with litigation. Win early, for less.
Local land use counsel should be consulted the moment you perceive a problem. If you know your project will face opposition, you should engage local counsel before your engineer or architect puts pencil to paper. By working with the other professionals on your team to put together a plan, local counsel can help to significantly reduce required zoning relief and limit potential reasons for denying your plan. Additionally, and if necessary, local counsel can recommend the best local government relations, grassroots and public relations groups, so that you do not find yourself behind the eight ball if social media explodes. Conversely, if your project is innocuous, you might delay bringing in local counsel until your engineer completes a first draft of the plan.
The 5W1H of choosing local professionals is important. The next time you have an issue in an unknown market, I encourage you to pause and take some time to work through the “what, why, where, who, how and when” questions discussed above. While Sun Tzu, Mr. Covey and Mr. Sinek didn’t specifically implement a 5W1H approach, I’m certain that they and (your) Mrs. Curry would agree that a deliberate approach to choosing local professionals is a best practice.
Published April 5, 2020.