The in-house legal community is abuzz with discussions about "value" as that concept relates to the fees paid by companies to outside counsel. That interest on the part of in-house lawyers naturally excites a responsive interest on the part of their outside counterparts (and the recipients of those fees).
Much of the discussion and debate seems somewhat misdirected, though. Many commentators and members of both communities seem to equate fixed fees, task-based billing and even alternative fee arrangements with value. The underlying approach often seems to be something like this: "if I can negotiate a fixed fee for this case or transaction, my company will thereby receive greater value than it has" or "if I offer my clients task-based billing, they'll perceive that they're getting more 'bang for their buck'."
Does such a view represent reality? Does a fixed fee, for example, mean that the client, without doing anything more, thereby receives greater value than it might have through another fee arrangement?
I think that we need to decouple the discussion of value from that of fees and billing. While we engage in the talk of alternative fee arrangements in the hope (at least most of the time) of the client thereby recognizing greater value than it might have otherwise, I think we need to recognize that the two do not coincide in all cases. A fixed fee certainly represents greater certainty for the client and that certainty can represent at least one element of value for some (perhaps many or most) clients. If, however, that fixed fee creates some incentives for outside counsel that do not by themselves serve the client's interests fully, then perhaps that fixed fee leads to less value for that client in certain situations.