Outside Counsel Deskbook

(revised 12/19/2023)
FDIC OUTSIDE COUNSEL DESKBOOK

Chapter Index Return to Chapter Index Page 2 of 73

Chapter Index

CHAPTER 1: Representing the FDIC

CHAPTER 2: Conflicts of Interest

CHAPTER 3: Information Security & Confidentiality

CHAPTER 4: Legal Services Agreement

CHAPTER 5: Legal Referral

CHAPTER 6: Case Management

CHAPTER 7: Case Plan & Budget

CHAPTER 8: Invoice Preparation & Submission

CHAPTER 9: Legal Matter Closeout

CHAPTER 10: Post-Representation Responsibilities

CHAPTER 11: Foreign Law Firms

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FDIC OUTSIDE COUNSEL DESKBOOK

Foreword: Return to Chapter Index Page 3 of 73

Foreword: 

The Legal Services Agreement (“LSA”) and this Outside Counsel Deskbook form the mutually binding 

contractual relationship between the FDIC and Outside Counsel. Outside Counsel is obligated to comply with all 

requirements of the LSA and Deskbook, absent a written waiver of a requirement by the Legal Division. 

Waiver of a requirement of the LSA or Deskbook, including permitting any method or practice by Outside 

Counsel that is inconsistent with the Deskbook, is an “Exception.” The Legal Division has the unilateral 

authority to grant Exceptions if doing so is in the FDIC’s interest, including when necessary to achieve the goals 

of a particular legal matter. Note that the granting of exceptions is rare, and they should generally only be 

sought in circumstances not otherwise addressed in the LSA or Deskbook. 

Chapter 1: Representing the FDIC

1.1 Scope of the Outside Counsel Deskbook

This Outside Counsel Deskbook describes the policies and procedures that Outside Counsel must follow, 

beginning with the execution of an LSA (refer to Chapter 4), continuing through retention and concluding with 

post-representation responsibilities. “Inherited” counsel who do not execute an LSA with the FDIC are not 

subject to all the provisions of this Outside Counsel Deskbook, but are subject to Chapter 2 (Conflicts of 

Interest), Chapter 8 (Invoice Preparation & Submission), and the terms of the Legal Services Conflicts of Interest 

Procedures – Directive 2021-04-Legal (Classification 5250.2), as it may be amended. “Inherited” counsel may 

obtain a copy of the Directive by contacting the Legal Services & Special Contracts Group. 

1.2 Identifying the FDIC as a Client

You may list the FDIC as a client in published materials only if 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.

• You may not quote FDIC materials or staff comments as to performance evaluations, if any. If you wish 

for FDIC personnel to participate in surveys or interviews regarding your performance, you must first 

submit the survey or interview questions to the FDIC Legal Services & Special Contracts Group 

(“LSSCG”) for review and approval.

1.3 StatutoryCompliance

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 
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Appendix A, Statutory Compliance for a representative list of applicable federal laws and regulations. When 

setting up a Case Plan (Section 7.2), you should discuss with your Oversight Attorney any anticipated legal 

issues.

1.4 (Reserved)

Reserved 

1.5 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 make a good faith 

effort 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) (dol.gov).

"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:

• AfricanAmerican;

• HispanicAmerican;

• NativeAmerican;

• Asian PacificAmerican;

• Sub-Continent Asian American;and

• Other groups, recognized from time to time by the U.S. Small BusinessAdministration.

"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.

Compliance with the Dodd-Frank Act 

Pursuant to Section 342 of the Dodd-Frank Wall Street Reform and Consumer Protection Act (Dodd-Frank Act, 

Public Law 111-203), Outside Counsel must confirm its commitment to equal opportunity in its own 

employment and in any subcontracting for FDIC legal matters.

To implement this commitment, the Outside Counsel must make a good faith effort to ensure, to the maximum 

extent possible consistent with applicable law, the fair inclusion of minorities and women in FDIC legal matters. 

Outside Counsel shall insert the language of this paragraph in all subcontracts in FDIC legal matters where the 
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subcontractor dollar value is expected to exceed $100,000. A good faith effort should include actions by Outside 

Counsel intended to identify and, if present, remove barriers to minority and women employment or expansion 

of employment opportunities for minorities and women within its workforce. Efforts to remove such barriers 

may include, but are not limited to, recruiting minorities and women, providing job-related training, 

implementing diversity and inclusion policies, or other activity.

Consistent with Section 342(c)(3) of the Dodd-Frank Wall Street Reform and Consumer Protection Act, Pub. L. 

111-203 (Dodd-Frank Act), a persistent failure to demonstrate to the Legal Division good faith efforts to include 

minorities and women in the firm’s workforce may result in suspension of referrals or termination of the firm’s 

Legal Services Agreement.

1.6 EthicalConsiderations

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. Part 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.

Determining how the standards of conduct, conflict of interest, and post-employment statutory restrictions and

barrequirements apply to FDIC employees can be complex, andwe encourage current and former FDIC 

employees to consult with the FDIC Ethics Unitof the Executive Secretary Section (Ethics & ADR Unit) about the 

statutory requirements that apply to their situation. Because of the significant consequences involved from 

violating these restrictions, all current and former employees are advised to seek guidance from the Ethics Unit 

before engaging in communications that may run afoul of the prohibitions.

Former FDIC Employees-Post Employment Restrictions

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. 18 USC 207(a)(1) bars all 

former FDIC employees from knowingly making, with the intent to influence, any communication to, or 

appearance before a federal agency or any court on behalf of anyone other than the United States on a 

particular matter involving specific parties in which they participated personally and substantially while in 

government. Generally, however, former FDIC employees may work for the United States on matters that they 
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worked on personally or which were under their supervision while at the FDIC, with special consideration and 

caution given to representing these matters before the FDIC or the Federal government.

Current FDIC Employees

Please note that current FDIC employees are not allowed to engage in discussions about the possibility of postFDIC employment via a Legal Services Agreement or any other contractual arrangement. Any current Legal 

Division employee contacted by a current or former FDIC employee regarding a new or amended Legal Services 

Agreement or other contractual arrangement with the FDIC, must notify the inquiring employee that no further 

conversation regarding an LSA or other contractual arrangement can take place until the LSSCG has received 

notification from the Ethics & ADR Unit that the employee has been cleared to make such contact by 

determination of the Ethics Program Manager.

The LSSCG staff member must then advise the Ethics & ADR Unit, ethics@fdic.gov, of the employee's expression 

of interest in contracting with the FDIC, and request that the Ethics & ADR Unit notify the LSSCG if and when the 

former employee is cleared to proceed. Until the Ethics Unit notifies the LSSCG of the former employee's 

clearance and the date upon which discussions or negotiations can begin, no LSSCG personnel will provide any 

LSA application materials to, or enter into any agreement with, the former employee. Substantive discussions 

with the former employee regarding the application process are also forbidden before this clearance has been 

obtained. Unless explicitly approved by the Ethics & ADR Unit through the clearance process, discussions 

and/or negotiations with the former employee or entering directly into an LSA or other contractual 

arrangement involving such former employee may violate federal post-employment restrictions and are 

therefore prohibited.

Note also that, under 18 U.S.C. § 208, FDIC employees who are negotiating with you or have an agreement with 

you for future employment cannot participate personally and substantially in matters in which your firm has 

any financial interest.

If an FDIC employee was involved in negotiating your firm’s current LSA, on behalf of the FDIC, that individual 

upon joining your firm may not, during the duration of the LSA, renegotiate the rate schedule, request changes, 

or be involved in any matter pertaining to questions regarding the services provided by your firm under the LSA.

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

at ethics@fdic.gov. 

1.7 File Retention 

All information contained in FDIC 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.
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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 9 and Chapter 10. 

NOTE: There are separate records retention requirements for underlying support documentation related to 

your FDIC invoices. Refer to Section 1.7 

1.8 Audit Rights 

You 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. All 

paid invoices are subject to audit regardless of disallowances taken during the fee bill review and approval 

process.

For purposes of subsequent audits, you must retain 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 covered in Appendix C, Record 

Retention Guidelines for E-billing. The FDIC reserves the right to obtain additional information upon review of 

any electronic invoice package submission or support documentation.

1.9 Fees andExpenses

The Legal Division will consider flat-rate, blended-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, invoices for such costs of doing business. You may not invoice the FDIC for "markups" above any costs 

actually incurred by you for any supplies or services obtained by you for the Legal Division; any discounts you 

receive must be passed on to the FDIC. 

The FDIC will only pay reasonable costs for services rendered or supplies provided during representation. The 

invoice process is discussed in Chapter 8. 
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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 will 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 is the property of the FDIC and will 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 must name the FDIC as the licensee or be assignable to the FDIC without any additional 

cost upon closeout 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.

1.10 MalpracticeInsurance

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 your 

malpractice insurance policy upon request by the Legal Division or the Office of Inspector General.

1.11 Contacts with the Media and the Public 

Extra-judicial statements regarding FDIC matters are almost always inappropriate and are 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 may 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 processes.

FDIC Office of Communications

You must refer all media inquiries concerning FDIC matters to the FDIC Office of Communications (OCOM) in 

Washington, D.C., at (877) 275-3342 for response. Additionally, you should promptly advise the assigned FDIC 

Oversight Attorney of the inquiry and its referral to OCOM.

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 
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and not on behalf of the FDIC. You will not disclose any confidential FDIC information in any such address. When 

you provide written materials at seminars or other functions on topics pertaining to the FDIC or laws and 

regulations affecting the FDIC, you must submit a copy of such materials to the LSSCG for review in advance of 

your speaking engagement.

1.12 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. As Outside Counsel, you 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. Generally (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 expectedduties.

• Discuss with you the scope of the required case plan and budget designed toachieve the FDIC's goals and

objectives in a cost-effective manner. Refer to Chapter 7. 

During the Course of the Legal Matter

During your representation, the Oversight Attorney will:

• Review your work and may participate inrepresentation.

• Monitor progress as measured against the case plan and budget.

• Reviewand obtain approval of any significant changes in the case plan orbudget.

• Keep FDIC business personnel informed ofdevelopments.

• Coordinate contacts between you and FDIC business personnel, as further discussed in thisDeskbook.

• 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
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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 OCOM; 

• When submitting seminar or other program materials to the FDIC LSSCG inadvance of a speaking

engagement;

• When your Oversight Attorney indicates otherwise;

• When immediate action is required and neither your Oversight Attorneynor their supervisor can be

reached;

• When communicating with the FDIC's Office of Inspector General, with whom you must fully cooperate 

as instructed in FDIC Directive 12000.01, incorporated herein, including for all subcontractors;

• When responding to the FDIC Legal Division’s Risk Management Group;or

• When seeking limited factual information that can be obtained in a relatively brief amount of time (such

as payoff figures for a loan orthe address of a borrower).

Under special circumstances or in certain types of litigation, your Oversight Attorney may arrange for more 

extensive direct contact with FDIC business personnel. This might occur, for example, in a case involving an indepth investigation of an institution's records.

The FDIC will not pay for charges related to contacts other than those authorized.

1.13 Whistleblower Protection 

(a) All Outside Counsel, their employees working on a legal matter, and any subcontract and employees 

working on that subcontract, are subject to the whistleblower rights and remedies established at 41 

U.S.C. § 4712.

(b) Outside Counsel must inform its employees, and any subcontractor must inform its employees, in 

writing, in the predominant language of the workforce, of employee whistleblower rights and 

protections under 41 U.S.C. § 4712. Within 30 days of receipt of the legal referral or contract, Outside 

Counsel and its subcontractors must distribute the informational document, “Whistleblower 

Information for Employees of FDIC Contractors, Subcontractors, or Personal Services Contractors” to 

their employees performing work in support of the goods and services delivered under the contract

(https://www.fdic.gov/about/doing-business/acquisition/whistleblower-information.pdf). By agreeing 

to the terms and conditions of the legal referral or contract, Outside Counsel acknowledges receipt of

this requirement, in accord with 41 U.S.C. § 4712, and commits to its distribution. 

(c) Outside Counsel must insert this subsection 1.13, including this subparagraph (c), in all subcontracts, at 

any tier, valued at $250,000 or more. 
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1.14 Cooperation with the Office of the Inspector General 

It is the policy of the FDIC that there is full cooperation with the work of the OIG and prompt reporting to the 

OIG of fraud, waste, abuse, or criminal violations related to FDIC programs or operations. The duties of 

contractors and FDIC oversight personnel to report wrongdoing, comply with OIG requests, and maintain 

confidentiality are outlined in detail under FDIC Directive 12000.01. However, apart from matters related to 

whistleblower reports of fraud, waste, or abuse by FDIC employees and FDIC contractor personnel in 

connection with FDIC programs or operations, you should coordinate production of information or documents 

through your Oversight Attorney.

NOTE: The Office of Inspector General can be reached via the OIG Hotline at (800) 964-3342 or via email at: 

oighotline@fdicoig.gov. 

1.15 Termination 

The Legal Division reserves the right to discontinue or limit its relationship with you for any or no stated reason. 

In such an event, notification of termination of your LSA or removal of individual legal matters 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 a contractual and ethical obligation and is necessary for an 

orderly transfer of legal matters.

You must forward upon demand of the FDIC Legal Division all files, documents, original underlying 

support documentation for expenses, subcontractor invoices, and electronic time sheets concerning the 

terminated legal matter(s), including copies of all related 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. 

1.16 Written Notices 

All notices to and agreements with the FDIC that are required to be in writing may be forwarded electronically to

the appropriate contactidentified in Appendix B of thisDeskbook, but theoriginal of any document on firm 

letterhead or containing a signature must be received by FDIC within five (5) business days following the date of 

electronic notice for thesame to have legal effect. Notices from the FDIC are effective when sent electronically 

to your Contact Attorney as designated in your LSA application or any subsequent Amendments. If an FDIC 

contact is not specified by this Deskbook and incorporated materials, notice is to be directed to the FDIC Legal 

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

To contact us by telephone, please call (877) 275-3342 and ask to speak with “the Legal Division, Outside 

Counsel staff.” 
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Chapter 2: Conflicts of Interest 

2.1 Legal Division Conflicts Policies andProcedures

FDIC policies governing Outside Counsel conflicts of interest are found in the 2021 Statement of Policy 

Concerning Outside Counsel Conflicts of Interest. You should refer to the Conflicts Policies, as they may be 

amended, for specific guidance regarding conflicts of interest and confidentiality issues. Be sure to refer to the 

hyperlinked online version, as that will be the most up-to-date version. If you have specific questions about 

how to submit a conflict waiver request to the Legal Division, you may send that inquiry as directed below in § 

2.9.

2.2 FDIC Regulations and Policies

There are also specific reporting requirements contained in the regulations at 12 C.F.R. Part 366, as amended. 

These regulations prescribe minimum standards of fitness and integrity for Outside Counsel and any 

employees, agents, or subcontractors (such as experts or consultants) who are used to provide professional 

services on FDIC matters. See also FDIC Form 5200/01 for representations and certifications required by the 

FDIC in accordance with 12 C.F.R. Part 366. 

2.3 Rules of the LegalProfession

You must also observe applicable bar rules of professional responsibility with respect to conflicts of interest and 

confidentiality for your jurisdiction, and the American Bar Association Model Rules of Professional Conduct to 

the extent that they are alsoapplicable.

2.4 RequiredDisclosures

In general, Outside Counsel must disclose, in writing on firm letterhead to the Legal Division, information 

concerning actual or potential conflicts of interest and matters that may present the appearance of a conflict.

See paragraph 2.6(a) below for the information conflict disclosures should contain. Disclosure should be made 

to the Oversight Attorney or to his/her supervisor in the office or section that oversees the matter giving rise to 

the conflict. If you are not actively representing FDIC at the time a possible conflict is discovered, you should

make your written disclosure to the LSSCG at FDIC Headquarters using the address provided in Section 1.16. 

Required disclosures include but are not limited to the following:

• Whether your firm currently represents any interest adverse to the FDIC inany capacity or adverse to a 

subsidiary of a failed insured depository institution.
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• Whether your firm previously represented an open insured depositoryinstitution that subsequently failed 

or previously represented any interest adverse to such an institution.

• Whether there exists an actual or potential conflict orthe appearance of a conflictof interest between 

your firm and the:

o Board of Governors of the Federal ReserveSystem;

o Office of the Comptroller of theCurrency;

o National Credit UnionAdministration;

o Consumer Financial Protection Bureau;or

o Department of Justice (on matters involving failed insureddepository institutions ortheir

directors, officers orrelated thirdparties).

• Whether yourfirm or any attorney of yourfirm currently has any outstandingdebt, whether performing or 

in default, owed to any failed insureddepository institution.

• Whether any attorney of your firm has served or serves as an officer, director or substantial shareholder

of any insured depositoryinstitution.

• Whether any attorney of your firm has served or serves as a trustee in bankruptcy or as a receiver in any 

federal or state court oradministrative proceeding.

• Whether your firm has represented or represents a debtor-in-possession, trustee in bankruptcy, or a 

receiver in a proceeding in which the FDIC in any capacity has an interest.

• Whether your firm represents a creditor in a bankruptcy, receivership, or other litigation proceeding 

where the FDIC in any capacity has asserted claims against the same debtor in either the same or an 

unrelated proceeding.

• Whether your firm represents any insurance carrier or any stockholder orclass of stockholders in an 

action against a director or officer of an insured depository institution.

• Whether your firm represents any insured depository institution in regulatory matters or assistance

transactions.

• Whether yourfirm represents a prospective bidderfor a troubled orfailed institutionor the assets of such 

aninstitution.

• Whether yourfirm represents any officer, director, debtor, creditor, or stockholderof any failed or assisted 

insured depository institution in a matter relating to the FDIC in any capacity.

• Whether any attorney of yourfirm is closely related to any person employed by the FDIC, is in litigation 

with the FDIC in any capacity, has outstanding debt owed to any failed depository institution, or an 

ownership interest in such an institution. This includes a spouse, dependent child or member of the 

immediate household.

• Whether yourfirm or any attorney of yourfirm has been or is currently subject toany prior or pending 

claims or investigations by the FDIC in any capacity.
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• Whether your firm or any management official of yourfirm has been charged withthe commission of a 

felony or is currently a party to an administrative or judicial proceeding in which fraudulent activity is

alleged. 

2.5 Duty to Disclose at Application and Thereafter

At the time of application for or renewal of your LSA, the Legal Division requires that you disclose all actual or 

potential conflicts of interest and matters that may present the appearance of a conflict. You are further 

required at that time to comply with all applicable requirements of 12 C.F.R. Part 366. Information about your 

system for tracking conflicts and your policies and procedures regarding the resolution of conflicts must also be 

provided at that time.

After application or renewal, you must disclose in writing all actual or potential conflicts and matters that may 

present the appearance of a conflict to the Legal Division as soon as you learn of their existence. When in 

doubt about the existence of a conflict, you should nevertheless disclose the matter and seek a waiver. Even 

after a conflict has been reported or a waiver granted, you must notify the Legal Division of any material change 

in facts.

2.6 Conflict Determination 

It is solely within the discretion of the Legal Division to determine whether an actual or potential conflict exists. 

Moreover, even the appearance of a conflict may result in the denial of a waiver or imposition of other 

corrective actions.

Conflicts of interest may only be waived by the Legal Division in writing. Requests for waivers of conflicts of 

interest are granted or denied on behalf of the FDIC by the FDIC Outside Counsel Conflicts Committee (or 

“Committee”) at FDIC Headquarters. 

 

Requests for waivers are considered only on a case-by-case basis. The Committee does not have delegated 

authority to grant prospective or advance waivers of conflicts of interest. Any request for such a waiver must be 

presented to the LSSCG, which will present it to the General Counsel for decision.

Conflict of Interest Disclosure and Waiver Request Process:

(a) Written disclosure and request for waiver of conflict of interest from your law firm to the appropriate

Oversight Attorneyor supervisor, forwarded (orinitially directed, ifyou have no active FDIC matters) to 

the LSSCG at FDICHeadquarters. Disclosures should generally include:

(1) the nature of the conflict, including relevant the facts and the parties/financial institutions involved;
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(2) any conflict mitigation measures the firm has taken or proposes to take (for example, firewalls or other 

screening mechanisms);

(3) any applicable deadlines associated with resolution of the conflict;

(4) if the firm has already received any conflict waiver(s) related to the matter, and the terms and conditions of 

such prior waiver(s); and

(5) any other relevant considerations the firm desires the FDIC to consider.

(b) LSSCG contacts Oversight Attorney(s) who make(s) a recommendation regarding resolution of the

conflict.

(c) LSSCG seeks additional Legal Division comments, considerationor recommendations.

(d) LSSCG submits the request to the FDIC Outside Counsel ConflictsCommittee.

(e) The Committee makes determination regardingconflict.

(f) LSSCG notifies you and interested FDIC office(s) or section(s) in writingof Committee’sdecision. 

2.7 Noncompliance 

Failure to disclose promptly any actual or potential conflicts of interest, or matters that may present the 

appearance of a conflict, as well as failure to comply with FDIC’s conflicts of interest policies and procedures, 

may result in the following:

• Imposition of a bar to application or renewal;

• Termination of your legalservices;

• Suspension of newreferrals;

• Disallowance in whole or in part of invoice(s) for services rendered;

• Denial of a conflict waiver;or

• Other corrective actions, including referral to the appropriate licensing authorities,or civil or criminal

actions.

You are not permitted to go forward with a representation adverse to the FDIC until the conflict has been 

waived or the situation otherwise resolved to the satisfaction of the FDIC Legal Division.

In the event your legal services are terminated as to any or all of your assigned FDIC legal matters, you must 

follow FDIC policies and procedures, return all files, and otherwise cooperate fully in the orderly transfer of 

matters as the FDIC Legal Division directs.
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2.8 FDIC as Former Client 

You have the continuing responsibility to report in writing any actual or potential conflict of interest or 

appearance of a conflict, regardless of whether you are representing the FDIC on active matters at the time of 

discovery. 

Note that, in the event you no longer represent the FDIC, you may not without a waiver later represent another 

client against the FDIC in a matter substantially related to any matter in which you previously represented the 

FDIC.

You are also expected to observe all requirements of attorney-client confidentiality after the conclusion of any 

FDIC representation. Refer to Chapter 10 for additional information on your post-representation 

responsibilities.

2.9 Questions Concerning Conflicts of Interest and Confidentiality Requirements 

For information concerning any aspect of conflict disclosure or resolution, contact the Legal Services & Special 

Contracts Group at FDIC Legal Division, Attn: Legal Services & Special Contracts Group, 3501 Fairfax Drive, Room 

E-6097, Arlington, VA 22226, or via email at LSSCG@fdic.gov. 

Return to Outside Counsel Home Page
FDIC OUTSIDE COUNSEL DESKBOOK

Chapter 3: Information Security & Confidentiality Return to Chapter Index Page 18 of 73

Chapter 3: Information Security & Confidentiality

3.1 Maintaining Confidentiality 

NOTE: Due to the high importance of the security and confidentiality of FDIC information and records, Outside 

Counsel should pay close attention to the contents of this Chapter. Direct any questions regarding your firm’s 

responsibility for Information Security in FDIC Legal matters to your Oversight Attorney and the eDiscovery Group 

(EDG) at LegaleDG@fdic.gov . 

(a) In the course of representing the FDIC, Outside Counsel may have access to nonpublic, confidential 

information. The FDIC has defined a broad category of such information in any form, paper or electronic 

as “SensitiveInformation” in FDIC Directive System Circular 1360.9. Outside Counsel, including all 

employees or contractors must comply with FDIC Directive System Circular 1360.9. This includes an 

understanding of 1) all categories of Sensitive Information, as defined in the Circular and set forth below;1

and 2) FDIC Information Security policies and procedures as set forth in the Circular.

(b) Outside Counsel is responsible for the security and confidentiality of all Sensitive Information which your 

firm may have access to. As Outside Counsel for the FDIC, your firm must take appropriate measures to 

ensure that all personnel are trained and familiar with this responsibility. Protecting the security and 

integrity of Sensitive Information extends to all legal and non-legal personnelof the firm, and any experts 

or other subcontractors that your firm may hire in any FDIC legal matter. Due to the role and mission of 

the FDIC in the United States monetary and banking systems, Sensitive Information may include a broad 

spectrum of disparate information and records from multiple sources. Outside Counsel’s adherence to a 

 

1 Sensitive Information is defined in Circular 1360.9 as (To ensure the latest update, check this link: Circular 1360.9):

(1) Information that is exempt from disclosure under the Freedom of Information Act (FOIA) such as trade secrets and commercial or 

financial information, information compiled for law enforcement purposes, personnel and medical files, and information contained in 

bank examination reports (see FDIC Rules and Regulations, 12 C.F.R. Part 309, for further information); 

(2) Information under the control of FDIC contained in a Privacy Act system of record that is retrieved using an individual’s name or by other 

criteria that identifies an individual (see FDIC Rules and Regulations, 12 C.F.R. Part 310, for further information);

(3) PII about individuals maintained by FDIC that if released for unauthorized use may result in financial or personal damage to the individual 

to whom such information relates. Sensitive PII, a subset of PII, may be comprised of a single item of information (e.g., SSN) or a 

combination of two or more items (e.g., full name along with, financial, medical, criminal, or employment information). Sensitive PII 

presents the highest risk of being misused for identity theft or fraud;

(4) Information about insurance assessments, resolution and receivership activities, as well as enforcement, legal, and contracting activities; 

and 

(5) Information related to information technology specific to the FDIC that could be misused by malicious entities (e.g., firewall rules, 

encryption and authentication mechanisms, and network architecture pertaining to the FDIC). 
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Chapter 3: Information Security & Confidentiality Return to Chapter Index Page 19 of 73

strong and effective client confidentiality and information security policy is a critical part of your FDIC 

representation.

(c) Outside Counsel must supply the Legal Division with the name and contact information of the firm’s Chief 

Information Security Officer or equivalent as wellas a backup contact, either of whom can be reached 

withoutdelay.

(d) The FDIC may contact your firm to assess the strength of your firm’s cybersecurity measures, protections, 

policies or procedures. This may include telephone contacts, email questionnaires, review and evaluation 

of your firm’s Information Security directives, policies and procedures or on-site reviews by FDIC staff.

(e) All Outside Counsel must be in compliance with the American Bar Association (ABA) Model Rules of 

Professional Conduct, Rule 1.6, which mandates minimal standards of conduct with respect to 

confidentiality of client information. This duty of client confidentiality includes maintaining the security 

and integrity of records in paper or electronic format.

NOTE: Failure to follow the directives outlined in this Chapter may result in termination of the firm’s LSA or other 

sanctions that the FDIC deems appropriate under the contract, at law or in equity.

(f) All Outside Counsel must have in place a secure computer network. Your network must have significant 

resistance to intrusions and sensitive detection capability to identify possible attacks by any method. The 

FDIC may contact your firm regarding the security of your computer network, as set forth above in 

subsection 3.1(d). Any deficiencies noted, as defined in the sole discretion of the FDIC, will need to be 

promptly corrected. See the Note above this subsection 3.1(f). 

(g) All outside Counsel must have internal policies and procedures onInformation Security, data back-up, 

data breaches and the handling, use and disposition of confidential client information (“Security Plan”). 

The Security Plan should, at a minimum, require thefollowing:

1) Periodic Risk Assessments – Outside Counsel should conduct and fully document periodic 

internal risk assessments to identify reasonably foreseeable threats to informationsecurity.

2) Appropriate Security Programs – These should consist of reasonable physical, technical, and 

administrative security measures to manage and control identified risks.

3) Periodic and Recurring Training & Education – Mandatory periodicemployee training should be 

certified by the employee and documented by the firm. This training should enhance staff 

understanding of the roles and responsibilities regarding data, physical and administrative 

security.
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Chapter 3: Information Security & Confidentiality Return to Chapter Index Page 20 of 73

4) Testing/Monitoring – Outside Counsel should periodically test the sufficiency of security 

measures. This includes testing or monitoring of systems, as well as records review of system 

activity, audit logs, access reports and security incident tracking reports.

5) Review and Adjustment – Outside Counsel must respond timely to any threats or risks that arise 

during these periodic internal reviews. This includes, when appropriate, FDIC notification, as 

further specified in thisDeskbook.

6) Third Party Consultants – To comply with the obligations imposed by law, FDIC policy, the Model 

Rules of Professional Conduct (or state equivalent) or other applicable standards, Outside 

Counsel should consider the engagement of technical consultants whennecessary.

Each Outside Counsel must customize your firm’s Security Plan to meet business, legal, and client 

needs. Each firm’s situation is unique, so you may need additional security measures not [close 

gap] referenced in this subsection 3.1(g). This subsection 3.1(g) is only intended to aid Outside 

Counsel in considering your responsibilities for safeguarding FDIC Sensitive Information. This 

subsection does not create or expand on any formal FDIC Information Security policy, nor does it 

provide any safe harbor for Outside Counsel.

(h) Since Outside Counsel is responsible to ensure the security and integrity of FDIC records, especially 

Sensitive Information, a copy or detailed explanation of the Security Plan must be supplied to the Legal 

Division or other FDIC component upon request. Any deficiencies noted, as defined in the sole discretion 

of the FDIC, must be promptly corrected. See the Note above subsection 3.1(f).

(i) As stated above, your firm is solely responsible to ensure the security of FDIC records, especially 

Sensitive Information that may be supplied or made available to your firm and all consultants, 

experts, or other contractors that your firm may hire. To better protect Outside Counsel, the FDIC 

requires that your firm obtain the signature of all such third-party contractors on a Confidentiality 

Agreement in a form substantially identical to this Confidentiality Agreement. Such agreements should be 

retained in your firm’srecords.

(j) To adequately secure all FDIC electronically stored information (“ESI”), particularly Sensitive Information, 

whether it originated from the FDIC in any capacity, or was received from any other party in litigation, or 

from any third party, all ESI must be hosted and produced utilizing an appropriate FDIC-approved vendor 

under the direction of and authorized by the Legal Division’s EDG. Further, all employees, consultants, 

experts or othercontractors who will have access to any ESI must be properly credentialed with the 

vendor hosting and producing said ESI. If you have any questions concerning this subsection 3.1(i), please 

direct them to your Oversight Attorney and to LegaleDG@fdic.gov, as further described below in section 

3.2.
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3.2 Using FDIC’s E-Discovery Group on Legal Matters

(a) All Outside Counsel retained on an FDIC Legal matter must coordinate with EDG of the Legal Information 

Technology Unit (LITU) to conduct an early case assessment to identify potential sources of responsive 

records, custodians, screening criteria, search parameters, review processes, and scope of production. 

Further, the early case assessment will consider the resources to be applied in responding to requests for 

FDIC documents and testimony. In addition, prior to production or disclosure of any FDIC records or 

information, all Outside Counsel must consult with EDG, and make diligent efforts to assure that highly 

confidential or Sensitive Information has been identified and reviewed and appropriate protective 

measures taken, and that only records and information that are properly discoverable under Fed. R. Civ. 

P. Rule 26 will be produced or disclosed.

(b) Outside Counsel first should consult with their Oversight Attorney about the early case assessment. The 

Oversight Attorney can place your attorney in contact with EDG. You may also reach the EDG at

LegaleDG@fdic.gov, but always copy your Oversight Attorney on any communications with EDG. 

EDG will also work with your firm and help to coordinate any data hosting issues or requirements that 

may arise as to ESI described above in subsection 3.1(i). If ESI issues are present, it is important to 

coordinate early in the progress of the legal matter. Close communication with your Oversight Attorney is 

imperative in this situation.

3.3 Careful and Secure Handling of FDIC Information & Records

The Legal Division mandates that Outside Counsel and related vendors exercise prudent care in their handling 

and use of FDIC information, including but not limited to:

(a) always using encryption technology when transmitting confidential “Sensitive” information to 

anyone outside of your firm’s internal network, including to the FDIC Oversight Attorney, other 

sources inside of the FDIC or to your firm’s subcontractors;

(b) promptly notifying the Oversight Attorney, the LITU (LegaleDG@fdic.gov) and the FDIC’s computer 

incident response team (csirt@fdic.gov) of any breach or possible breach or loss of FDICinformation;

(c) ensuring the physical security of FDIC information and records in anyformat, i.e. keeping this Sensitive 

Information out of plain sight, locked in cabinets, behind password-protected screensavers, only on 

encrypted media, and using extreme caution when transporting any FDIC information away from your 

office; and
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(d) understanding that your firm is solely responsible for ensuring the security and integrity of FDIC 

information by all vendors and subcontractors your firmuses.

3.4 FDIC-Supported Resources for Using Encryption Technology to transmit 

Confidential “Sensitive” Information.

(a) Zix Mail

Contact your Oversight Attorney for further information on using Zix Mail.

(b) PKZIP

Your law firm’s Information Technology Group should be able to instruct staff members on how to receive 

and properly transmit secure documents using PKZip for Windows.

3.5 Secure Telecommunications and Video Surveillance or Equipment

Compliance with applicable portions of Section 889 of the John S. McCain National Defense Authorization Act for 

Fiscal Year 2019 is incumbent on the FDIC and on Outside Counsel providing legal services. The requirements of 

this law concern the use of certain electronic communication devices, and the law contains certain prohibitions of 

which you must be aware. Section 889 is fully incorporated into your firm’s Legal Services Agreement. See

Appendix A to this Deskbook for a link to Section 889. 

3.6 Other Resources

(a) ESI is especially vulnerable due to its abundance, portability and the instant transferability of vast 

amounts of information. The ABA has therefore published resource materials and offers Continuing Legal 

Education courses on cyber and data security at their web site: www.americanbar.org. These resources 

supply quality guidance for Outside Counsel in taking reasonable steps to meet your responsibilities in 

securing FDIC information. All of your firm’s employees must be familiar and conversant with ABA 

guidance and publications on cyber and data security.

(b) The Association of Corporate Counsel and a group of its members has published a Model Information 

Protection and Security Controls for Outside Counsel Possessing Company Confidential 

Information (the 2017 Model Controls). While the Legal Division has not formally adopted or sanctioned 

the 2017 Model Controls, Outside Counsel may find them helpful in updating your firms’ Security Plans, 

practices and procedures.

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FDIC OUTSIDE COUNSEL DESKBOOK

Chapter 4: Legal Services Agreement Return to Chapter Index Page 23 of 73

Chapter 4: Legal Services Agreement

4.1 Application 

As Outside Counsel interested in representing the FDIC, you requested and received an application package 

from the Legal Division. The application package requires various disclosures and requests information 

including your firm’s areas of expertise, firm composition, and conflicts of interest.

Application procedures are set forth in the brochure titled Information for Prospective Outside Counsel. 

Additionally, the FDIC will only make awards or legal referrals to businesses that are registered in the System for 

Award Management (SAM) database. Registration is via https://sam.gov/content/home. This webpage also 

contains user guides and demonstration videos under the Help tab. If you have any questions regarding SAM or 

the registration process, please contact the SAM Assistance Center toll free at (866) 606-8220.

The information and disclosures requested, some of which are statutorily mandated, are needed for the Legal 

Division to determine whether the FDIC can retain your services. The Legal Division considers rates, abilities, 

areas of expertise, conflicts of interest, need for additional Outside Counsel in a particular geographic area, and 

other factors when determining whether to negotiate a Legal Services Agreement (LSA) with a firm. Your firm 

must propose a single Rate Schedule identifying every employee of the firm that may provide billable services. 

Your firm must also provide a Substitute Form W-9 Request for Taxpayer Identification Number and 

Certification for the primary office and a separate Payee Information for Automatic Deposit of Payment Form 

for each office from where an employee will be providing billable services. Included in the application package 

are the FDIC standard LSA Forms. Unless instructed by the Legal Division to submit DocuSign or other electronic 

forms, all relevant fields must be completed and returned with your application to the FDIC Legal Division, Attn: 

Legal Services & Special Contracts Group, 3501 Fairfax Drive, Room E-6097, Arlington, VA 22226. For questions, 

please call (877) 275-3342 and ask to speak with the Legal Division’s Legal Services & Special Contracts Group, 

formerly known as the “Outside Counsel Management Group.” 

NOTE: All rates must be in US dollars only and in whole dollar amounts (e.g. $250.00 per hour), and a 

timekeeper ID must be provided for each billing professional.

4.2 Purpose of LSA

The LSA is an agreement between you and the FDIC that contains terms and conditions applicable to referrals of 

FDIC legal matters and is incorporated into all referral letters. The Outside Counsel Deskbook, as it may be 

amended from time to time, is also incorporated into the LSA and the referral letter.
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Chapter 4: Legal Services Agreement Return to Chapter Index Page 24 of 73

NOTE: FDIC’s execution of an LSA with your firm is not a guarantee that you will receive legal referrals from the 

FDIC.

You are hereby notified that the FDIC does not treat the standard LSA and rate schedule forms as confidential 

under any exemption from the Freedom of Information Act (“FOIA”). FDIC generally treats outside counsel rates 

charged to the FDIC as public information releasable pursuant to the FOIA.

LSA Duration

The FDIC will execute only one LSA with your firm for the duration of any LSA. Refer

to LSA Forms. Your LSA is effective on the date specified in the LSA, typically the first day of the month of 

execution by the FDIC. If no effective date is indicated, it is effective as of the date signed by the FDIC’s 

authorized representative. The term of your LSA is two years from the effective date unless the Legal Division 

elects to terminate or extend it prior to its expiration. FDIC reserves the right to terminate your LSA without 

cause or advance notice. Absent compelling reasons, and in the sole discretion of the Legal Division, no increase 

in the rate schedule attached to the LSA is permitted during its term.

If at the end of the term you are working on a legal referral and do not renew your LSA, your LSA will continue, in 

the sole discretion of the FDIC, for the sole purpose of completing existing work under the same terms and 

conditions. If you continue to represent the FDIC in any matter after the expiration of your LSA that 

representation will continue until the earliest of: 

• All work on outstanding legal referrals is complete;

• A new LSA is executed;or

• FDIC exercises its right to terminate your LSA.

Continuation of your LSA is not the same as renewal of your LSA; continuation does not permit you to receive 

any new referrals. Continuation may require you to submit additional documentation.

If your LSA is not renewed or continued, you must make provision for transfer of all outstanding legal matters to 

the FDIC Legal Division or its designated substitute Outside Counsel prior to the expiration of your LSA’s term.

4.3 LSA Renewal

When your LSA is within 90 days of expiration, you must contact the Legal Division’s Legal Services & Special 

Contracts Group (“LSSCG”) if you wish to renew your LSA. LSA renewal is necessary to receive new referrals. The 

FDIC will review and contact your firm’s representative regarding any renewal requests with rate increase 

markups for any billing professional. That process may result in a delayed decision on your firm’s renewal. The 
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Chapter 4: Legal Services Agreement Return to Chapter Index Page 25 of 73

FDIC has a limited need for Outside Counsel and does not guarantee that it will agree to the renewal of your 

LSA, even if you are working on one or more legal referrals at its expiration. If you do not wish to renew your 

LSA, you must notify the LSSCG of that fact, so that the Legal Division may decide on the disposition of any 

outstanding legal matters and implement that decision before your LSA expires.

 

LSAAmendment

An amendment to your LSA may be necessary when there has been a change in the information you submitted 

in your application package. Refer to the LSA Forms. It is your responsibility to inform the FDIC of all new or 

changed information concerning your firm. If your LSA information is not current, you may not be able to 

perform legal services for the FDIC. This information includes, but is not limited to:

• Structural changes in your firm;and

• Addition or removal of billableindividuals.

In addition, payment of your invoices may be delayed if any needed information is not up to date, including 

your Federal Tax Identification Number. If you are unsure whether you need to amend your LSA, contact the 

LSSCG immediately. 

Structural Changes

You may need to amend your current LSA or execute a new LSA when a structural change occurs in your firm. 

Structural changes may impact your relationship with the FDIC in areas such as conflicts of interest or 

malpractice insurance coverage. In addition, these changes may also impact the FDIC’s invoice payment 

process. Examples of law firm structural changes requiring LSA amendment include, without limitation:

• Firmdissolution;

• Merger or other ownershipchanges;

• Change of firm ownership type, such as converting an LLP or becoming a partnership or professional

corporation;

• Law firm name change*;or

• Change of address or addition of a new branchoffice. 

After reviewing information that you submit concerning any structural change, the FDIC Legal Division will 

determine what action is appropriate and notify you.
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Chapter 4: Legal Services Agreement Return to Chapter Index Page 26 of 73

NOTE: If your firm has multiple offices, identify the branch office(s) in which any structural change occurred by 

entering the city and state in which the office is located on the Payee Information for Automatic Deposit of

Payment Form. 

New Federal Tax Identification Number (“TIN”)

A new federal TIN requires execution of a new LSA.

NOTE: Structural changes that result in a new TIN require a new application and the execution of a new 

LSA. A new TIN also changes information used for payment of your invoices by electronic funds transfer (“EFT”) 

and will require the execution of new EFT forms. See the EFT requirements. 

NOTE: A law firm name change alone, without any other changes to the structure of the firm, may only require 

an amendment to your LSA. You should submit an LSA Amendment Form and a new Substitute Form W9 under 

the new firm’s name using the current TIN as supporting documentation. If the new law firm name includes 

other structural changes to the firm, the FDIC will review submitted information to determine what action is 

appropriate.

Adding and Removing Billable Individuals

You must inform the LSSCG and all current Oversight Attorneys in writing when you are adding or removing 

billable individuals to a rate schedule attached to your LSA. Complete the LSA Amendment form when any 

attorney, paraprofessional, or other billable individual is added or removed.

NOTE: If an attorney who is primarily responsible for any legal matter is to be removed from the list of billable 

individuals, you should provide the following additional information to the appropriate Oversight Attorney(s):

Each case matter number for which such attorney is responsible; and

New proposed law firm contact attorney for each matter.
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Chapter 4: Legal Services Agreement Return to Chapter Index Page 27 of 73

4.4 Completion of LSA AmendmentForm

When completing an LSA Amendment form: 

• Make changes, as appropriate, to the law firm name, address, telephone number, fax number, e-mail 

address, and contact attorney.

• For each billable individual, listed alphabetically, type A to add or D to deleteand provide the following

information:

Biller’s FullName;

Biller's TimekeeperID;

State License, ifapplicable;

Position; and

Years inPractice.

• Complete the genderfield, and if indicated,the minoritystatus.

• Enter the standard rate, percentage of FDIC discount, and the resulting proposed FDIC rate in whole 

dollaramounts.

• Sign and date the completed LSA Amendment form. 

NOTE: Billing rates must be denominated in US dollars only and in whole dollar amounts, e.g. $350.00 per hour, 

not $349.50. 

• Mail or electronically submit a copy of the Amendmentform to all currentOversightAttorneys.

• Unless directed to submit the Amendment form electronically, mail the original form to the FDIC Legal 

Division at: 

FDIC LegalDivision

Attn: Legal Services & Special Contracts 3501 Fairfax Dr., Room E-6097

Arlington, VA 22226

• The LSSCG will notify you if your request to amend your LSA is approved. You will receive an electronic 

copy of the fully executed LSA Amendment. If your request to amend your LSA is not approved, the 

LSSCG will notify you in writing. You may not bill the FDIC for the services of any individuals who have 

not been included on the FDIC- approved rateschedule.
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Chapter 4: Legal Services Agreement Return to Chapter Index Page 28 of 73

• After approval of any changes, the updated information will be entered into the electronic systems of 

the FDIC and its contractors. Once this approval is complete, only then may you submit invoices under

the amendment.

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FDIC OUTSIDE COUNSEL DESKBOOK

Chapter 5: Legal Referral Return to Chapter Index Page 29 of 73

Chapter 5: Legal Referral

5.1 Legal Referral

When the Legal Division retains your firm to provide legal services for a particular case or matter, a legal referral 

will be made to you. A legal referral generally covers only one matter, but it may encompass one or more “legal 

matters.” For example, a legal referral may encompass litigation of a particular case, assistance with a 

subsequent appeal, and/or a related bankruptcy case. Note that some sections of the FDIC Legal Division within 

their discretion may send out invitations to multiple law firms to submit written proposals on a matter prior to 

initiating a legal referral. As stated in Chapter 4, FDIC’s execution of an LSA with your firm does not 

constitute a legal referral and is not a guarantee that you will receive legal referrals from the FDIC.

The FDIC Legal Division reserves the right to terminate a legal referral or legal matter for any or no stated 

reason. Refer to Chapter 1, Section 1.15. You may not subcontract any legal work referred to you without the 

prior written authorization of your Oversight Attorney.

5.2 Referral Letter 

The referral letter identifies the specific services requested and the terms and conditions of the legal referral. 

The referral letter incorporates several documents, including your LSA, the Outside Counsel Deskbook and the 

case/matter budget(s) which are required to be submitted by your firm and approved by the Legal Division. The 

incorporated documents, as well as the referral letter, may only be amended or modified in writing with proper 

approval.

NOTE: If an attorney who is primarily responsible for any legalmatter is to be removed, at the time the legal 

referral is made, you must confirm in writing to the Oversight Attorney that no material changes have occurred 

that affect the representations and conflicts certifications contained in the application package that your firm 

submitted to the FDIC Legal Division.

5.3 Byrd Amendment – Legal Referrals Over$100,000

If the amount of the approved case/matter budget(s) exceed(s) $100,000, you must comply with provisions of 

the Byrd Amendment. See the Byrd Amendment requirements and applicable forms.
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Chapter 5: Legal Referral Return to Chapter Index Page 30 of 73

5.4 Legal Division Participation 

When making a legal referral, the FDIC Legal Division reserves the right to participate in or to assume complete 

responsibility for any matter referred to you. This may include providing you with filings and/or research 

previously prepared, or staffing a matter jointlywith you.

5.5 Selection of Outside Counsel

The FDIC 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 several factors, including:

• The experience of Outside Counsel in the type of legal work required to be performed.

• The geographic location of OutsideCounsel.

• The capacity of Outside Counsel to handle the anticipated volume ofwork.

• Whether the fees or rates proposed by Outside Counsel are competitivein comparison to other firms’

rates.

• Whether the proposed rates reflectdiscounts.

• Whether, in the sole discretion of the FDIC Legal Division, current FDIC payments to the firm are already 

substantial orexcessive.

• 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. Refer to Chapter 2. 

• Whether the firm has a reputation for competence, integrity, cost effectiveness and cooperation.

Whenever possible, the FDIC Legal Division considers a diverse list of law firms (including minority- and 

women-owned law firms) in selecting Outside Counsel for a legal referral. The FDIC also encourages cocounseling arrangements between majority and minority- and women-owned law firms. If you have questions 

regarding co-counseling arrangements, please contact the Legal Services & Special Contracts Group (“LSSCG”).

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FDIC OUTSIDE COUNSEL DESKBOOK

Chapter 6: Case Management Return to Chapter Index Page 31 of 73

Chapter 6: Case Management

6.1 General CaseManagement

The FDIC's goal is to obtain the best resolution of legal matters at the lowest reasonable cost. Consistent with 

that goal, we expect you to manage time carefully.

The FDIC will not pay for costs associated with:

• Excessive or redundantconferencing;

• Unnecessary review of documents orfiles;

• Unnecessary “polishing” ofdocuments;

• The "learning curve" for FDICmatters;

• Unfocused legal research;and/or

• Excessive, unreasonable or unapproved expenses.

You are required to discuss staffing with your Oversight Attorney and assign no more nor fewer attorneys or 

paraprofessionals than are necessary to adequately represent the FDIC. You must refrain from rotating 

assignments away from attorneys knowledgeable about FDIC matters or using FDIC projects for the purpose of 

training firm personnel.

Cost-effective representation on every matter requires that you:

• Consult with your Oversight Attorney on strategic, tactical, or cost-related decisions on a matter,

including pre-filing review of pleadings by your OversightAttorney.

• Consult with your Oversight Attorney on the hiring and associated costs of experts, e-discovery vendors, 

court reporters, and other professional service providers – if you use one of these that has a current 

LSSA with the FDIC, be sure that the provider follows the Legal Support Services Deskbook guidelines 

and that all services that you will need are on the provider’s FDIC Rate Schedule.

• Conduct an early case assessment (ECA) with the Oversight Attorney and the FDIC’s EDG) to identify 

sources of information and likely custodians, scope costs and create a discoveryplan.

• Have a clear understanding of yourrole and the role of yourOversightAttorney.

• Insistthat yourOversight Attorney define the goals and objectives to beachieved.

• Send your Oversight Attorney copies of all correspondence, pleadings and other filings promptly upon

receipt unless instructedotherwise.

• Make effective use of Legal Division resources, including its attorneys and theFDIC Legal Research Bank 

described in Section 6.4, to the greatestextent possible.

• Develop a case plan and budgetthat will achieve the FDIC's goals and objectivesand obtain the written 

approval of the Legal Division for it, as well as for any needed increase in the total budgetamount.
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Chapter 6: Case Management Return to Chapter Index Page 32 of 73

• Promptly advise your Oversight Attorney of all significant developments.

Reports

FDIC management procedures require that you keep your Oversight Attorney fully informed regarding the 

status of each matter you are handling. Reporting requirements will vary by type and size of case, and by firm. A 

status report for any matter you are handling shall be submitted to your Oversight Attorney as often as directed.

Reports should:

• Be brief butmeaningful;

• Emphasize developments since the lastreport;

• Review whether the case is proceeding in line with the case plan and budget; and,if not

• Explain why actual costs differfrom projected or budgetedamounts.

6.2 Special Issues

Certain legal issues are of special interest to the FDIC, either because they are peculiarly related to FDIC 

activities and rights, or because of the need for a uniform, nationwide approach, or otherwise in the sole 

discretion of the FDIC Legal Division. These “special issues” include such matters as interpretation of the 

Federal Deposit Insurance Act, certain aspects of the Dodd-Frank Wall Street Reform and Consumer Protection 

Act of 2010, or other federal statutes, as well as matters involving the status of the FDIC in its conservatorship, 

receivership, or corporate capacities.

Outside Counsel representing the FDIC, FDIC asset servicers, or other FDIC-related interests are required to be 

alert to these issues in matters referred for representation. You must contact the FDIC Oversight Attorney before 

undertaking any research or drafting with respect to these issues. Relevant research or statements of agency 

policy concerning “special issues” will frequently be provided to you and, in many cases, the Legal Division may 

wish to handle portions of a matter that involve special issues directly, or in cooperation with your firm.

Special Issues List

FDIC Special Issues include, without limitation:

• Actions involving the Federal Deposit Insurance Corporation and another state or federal financial 

institution regulator or federal agency.

• Agency status of FDIC or any predecessor agency.

• Comparative Fault/Contributory Negligence.

• Conflicts between insolvent institutions, including but not limited to conservatorships, receiverships, 

and bridge banks.
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Chapter 6: Case Management Return to Chapter Index Page 33 of 73

• Constitutional challenges to statutes and to actions taken by FDIC officials that affect the FDIC.

• Crime Control Act of 1990 ("CCA") Pub.L.No. 101-647,104 Stat. 4789.

• Department-of-Justice-initiated subpoenas (Grand Jury or Trial) and requests for information.

• Deposit Insurance Funds Act of 1996, part of the Economic Growth and Regulatory Paperwork 

Reduction Act of 1996. 

• Dodd-Frank Wall Street Reform and Consumer Protection Act of 2010 (“Dodd- Frank”). 

• Employee benefit and ERISA litigation; employee lawsuits involving any agency personnel, whether as 

named parties, deponents, or witnesses. Environmental issues including, but not limited to: CERCLA 

(Superfund), RCRA, Underground Storage Tanks, asbestos, lead-based paints, wetlands, endangered 

species, or the National Environmental Policy Act. 

• Federal Deposit Insurance Corporation Improvement Act of 1991 ("FDICIA"). 

• Financial Institutions Reform, Recovery, and Enforcement Act of 1989("FlRREA"). 

• Freedom of Information Act (“FOIA”). 

• Gramm-Leach-Bliley Act (“GLBA”). 

• Indemnification of employees, officers or directors of failed institutions.

• Interpretation of FDIC statutes, regulations, or policy statements.

• Involuntary Sale of FDIC Property or 12 U.S.C. 1825(b). 

• Judicial Restraints of Receivers’ Powers or 12 U.S.C. 1821(j). 

• National depositor preference and/or prudential mootness.

• Privacy Act of 1974 or the Right to Financial Privacy Act. 

• Pro-rata vs. pro tanto settlement bar rule.

• Publicity: any case likely to generate publicity.

• Punitive damages.

• Qualified Financial Contracts, including derivatives, repurchase agreements, and swaps.

• Racketeer Influenced and Corrupt Organizations Act (“RICO”). 

• Repudiation of contracts or 12 U.S.C. 1821(e). 

• Securities acts: Securities Act of 1933 or Securities Exchange Act of1934. 

• Standard of Liability of Directors and Officers or 12 U.S.C. 1821(k). 

• Tax matters – state or Federal or Bank Holding Companies.

• Third party hosting costs, scanning, the use of analytics and managed review firms, and related 

discovery expenses should be decisions made in consultation with the Oversight Attorney (who can 

then consult with the LSSCG).

• Tort Claims (Federal Tort Claims Act).

• Unrecorded Agreements, D’Oench, Duhme, 12 U.S.C. 1823(e) or 1821 (d)(9)(A). 

You should maintain diligent communication with your Oversight Attorney to identify Special Issues that may 

not be listed above.
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Decisions that should be made only in consultation with your Oversight Attorney (absent exigent 

circumstances) include, without limitation:

• Hiring experts and other professional serviceproviders;

• Secretarialovertime;

• Use of law clerks or summerinterns;

• Travel;

• Contacts with FDIC businessstaff;

• Legal research;and

• Staffing at conferences, court appearances, depositions or meetings.

The Legal Division expects timely, cost-effective solutions. Failure to apply the required cost- saving measures 

noted above may result in disallowance of billed amounts by the Legal Division. 

6.3 Outside Counsel Must Have Advanced Knowledge of ElectronicDiscovery

The Legal Division recognizes that quality legal representation from our Outside Counsel can only be achieved 

with an advanced understanding of electronic discovery, including trends in the case law, processes and 

procedures for all phases of the Electronic Discovery Reference Model, and knowledge of and experience with 

sophisticated e- discovery tools. Such knowledge and understanding by Outside Counsel are essential to the 

successful and cost-effective resolution of FDIC legal matters. Outside Counsel must be adept at evaluating ediscovery issues at the outset of a matter and develop a case specific, cost-effective, strategy to address those 

issues. This expertise is critical for the FDIC to more effectively and efficiently comply with their discovery 

obligations, including making and responding to requests for electronically stored information (“ESI”) in 

lawsuits, regulatory matters, and internal investigations/audits. Prior to being retained by the FDIC, Outside 

Counsel must demonstrate it has the requisite experience and competence.

The Legal Division’s E-Discovery Group

The EDG is available to provide the Legal Division (as well as other Divisions within the FDIC) and Outside 

Counsel with advice, solutions and support on e-Discovery issues. The EDG must be consulted in preparing an 

early case assessment in each matter. The EDG’s attorneys and e-Discovery specialists are trained specifically to 

advise and assist attorneys, paralegals, and other responsible parties in managing their e-Discovery obligations 

from early case assessment to trial presentation.

You must consult EDG as early as possible in any major investigation, litigation or third-party matters involving 

significant e-discovery issues. Outside Counsel must obtain approval from the Oversight Attorney before 

contacting anyone in EDG.
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EDG Policies, Processes and Technologies

The Legal Division and EDG have developed and established a coordinated and interrelated set of policies, 

processes, and technologies that support FDIC-wide legal e-Discovery obligations and related corporate 

records- and information-management functions. Please address all questions concerning these policies and 

processes, including the Discovery Response Plan Guidelines and information on Legal Holds, to ALIS@fdic.gov.

6.4 FDIC Legal Research Bank 

To avoid duplication of legal research and to obtain the benefits of previous legal research, the Legal Division 

established the FDIC Outside Counsel Legal Research Bank ("OCLRB"), designed to centralize substantive briefs, 

unpublished opinions, and otherlegal research materials that may be utilized in FDICmatters.

The OCLRB is intended to assist you in representing the FDIC by making legal research materials readily 

available to you and thereby to reduce the FDIC's legal research costs. Documents in the OCLRB are available in 

private FDIC content areas on Westlaw. Law firms with current LSA’s are eligible to open an account for on-line 

research in OCLRB content area.

You are required to minimize legal research costs on FDIC matters. Thus, you must refer to the OCLRB at the 

beginning of every authorized legal research project by researching in it directly or indirectly through your 

Oversight Attorney. Failure to consult it may result in disallowance of associated charges for unnecessary legal

research. See, Section 8.3 Billable Fees and Expenses. 

You are required to promptly submit your final, substantive FDIC legal work product (e.g., briefs, legal research 

memoranda, as well as significant court opinions in FDIC cases) directly to the OCLRB staff at the email address 

indicated below for inclusion in the OCLRB.

In representing the FDIC, you authorize the FDIC to include those materials (and any other written materials 

prepared in the representation of the FDIC) in the OCLRB. You

also consent to the reproduction, dissemination, distribution, or other use of such written materials (including 

the use of those materials in other documents prepared for the Legal Division) by any authorized user of the 

OCLRB.

Inquiries about and work product for the Outside Counsel Legal Research Bank should be directed to the 

Outside Counsel Legal Research Bank staff at (877) 275-3342 or LegalResearchBankDC@fdic.gov. 

6.5 Alternative Dispute Resolution ("ADR")

The FDIC is committed to the use of alternative dispute resolution (“ADR”) in appropriate cases. The FDIC views 

such techniques as potentially less costly, less time-consuming, and a more effective means of facilitating 
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negotiated settlements. Thus, throughout the course of a legal matter in dispute, you are required to 

periodically review the matter to determine whether ADR is appropriate and to explore all opportunities for 

utilizing non-judicial dispute resolution approaches.

When contemplating the use of ADR, contact the Oversight Attorney to request a consultation with the Legal 

Division’s ADR Counsel. The ADR Counsel can advise you on ADR options that may be appropriate for your 

situation and factors to consider when hiring a neutral. Before entering into an agreement with a third-party 

neutral, you must share the proposed agreement with the Oversight Attorney who reviews it with the ADR 

Counsel. The review ensures consistency across all FDIC ADR agreements. 

When ADR is used, you are expected to comply with current FDIC ADR policy. Your Oversight Attorney can 

provide information on use of binding arbitration and the selection and payment of neutrals. 

Claims between FDIC-controlled institutions

Claims between FDIC-controlled institutions (including receiverships, conservatorships, acquired or assisted 

institutions, asset servicers, and bridge banks) must immediately be brought to the attention of your Oversight 

Attorney. These claims must be resolved through the use of the FDIC's internal ADR program unless otherwise 

directed by your Oversight Attorney. The FDIC may disallow costs or fees incurred in the litigation of such claims 

without prior Oversight Attorney approval. See FDIC Corporate Directive 5000.3, Dispute Resolution Among 

Institutions Controlled by the FDIC. 

6.6 FDIC as a Litigant 

The FDIC’s litigation philosophy is to pursue an aggressive, forthright, and consistent approach to reaching our 

overall objective of resolving litigation in an expeditious and cost- effective manner.

The Legal Division avoids extreme advocacy positions that are not likely to have a substantive impact on the 

outcome of litigation. Coercive, delaying, or obstructive tactics also are to be avoided.

The FDIC Legal Division discourages burdensome motion practice unless there is a clear strategic advantage to 

be gained. Where appropriate, however, motions to dismiss, for judgment on the pleadings, or for summary 

judgment should be employed to resolve or refine as many of the issues in dispute as possible at an early stage 

of the proceedings.

The FDIC wishes to avoid costly delays that frequently result from abuses of the discovery process. Lengthy 

interrogatories or extensive requests for document production for the purpose of burdening another party are 

to be avoided. The Legal Division specifically requests that you consider available remedies and sanctions when 

another party appears to be abusing the discovery process.
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Questions concerning litigation strategies should be addressed to your Oversight Attorney.

Discovery Requests -- FDIC, Other Federal, or State Agencies

To obtain all requisite authorizations and instructions for coordination of a response to a discovery request, you 

must immediately contact your Oversight Attorney when you receive a:

• Notice of deposition or subpoena of an employee of the FDIC, or otherfederal orstate agency;or

• Subpoena or request for production of documents generated or maintained bythe FDIC, or another 

federalentity.

You also should consult with your Oversight Attorney prior to contacting employees of the FDIC or other federal 

entities, or obtaining documents generated by another federal entity.

Filing Fees

In the United States District Courts and Courts of Appeals, the FDIC is not required to pay filing fees or post any 

bond to pursue an appeal. See 12 U.S.C. 1819(b)(4). Unless otherwise stated in the LSA or referral letter, Outside 

Counsel is expected to advance filing fees and deposits required by other courts and bill same to FDIC as 

provided in Chapter 8. If the amount required exceeds $500.00, you should consult your Oversight Attorney for 

instructions unless you cannot reach him/her or a supervisor and are faced with exigent circumstances.

Experts and Other Professional Service Providers

The decision to hire experts and other professional service providers should only be made in consultation with 

and with the prior written approval of your Oversight Attorney (absent documented exigent circumstances). It is 

very important that experts and other professional service providers are screened for conflicts of interest and 

are eligible to provide services. Such conflicts screening and approval must be properly documented. Refer to 

Chapter 2, Conflicts of Interest. 

The proposed rates, compensation, and expenses of experts and other professional service providers should be 

reasonable considering the matter for which they are hired and at customary levels for their professions. Under 

no circumstances can compensation be based upon a contingent fee arrangement. You should try to obtain 

discounts when possible.

If a professional service provider that is required to be retained is a law firm, that firm can either be an FDIC LSA 

approved firm (preferable) or a non-LSA law firm. The compensation you pay the LSA approved law firm that is 

retained cannot be greater than that firm’s FDIC-approved LSA rates. If a non-LSA law firm is retained to act as 

counsel for the matter, then the non-LSA firm’s rates must be agreed upon by the Oversight Attorney for that

matter and the main LSA law firm requesting the subcontracting arrangement in advance of services.

Absent express Legal Division permission, experts, e-Discovery vendors, court reporters, and other professional 

service providers may only be compensated for fees and expenses in accordance with the requirements of this 

Deskbook. Refer to Chapter 7 for administrative requirements. The compensation you pay a subcontracted 
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Chapter 6: Case Management Return to Chapter Index Page 38 of 73

service provider that has an existing Legal Support Services Agreement (LSSA) with the FDIC cannot be greater 

than that firm’s FDIC-approved LSA rates for substantially identical services. Moreover, a sub-contractor with an 

existing LSSA cannot furnish services or levy charges or fees in connection with your case that are outside of its 

current LSSA with the FDIC, absent pre-approval from the Oversight Attorney. In fact, where practicable, if you 

select a subcontractor that has an existing LSSA, you should discuss with your Oversight Attorney the feasibility 

of having that vendor deal directly with the Oversight Attorney. The Legal Division considers your oversight of 

experts and other professional service providers an important duty under the terms of your legal referral.

Settlements

The settlement possibilities of each matter should be identified and considered early in the proceedings and at 

each stage thereafter. Cases should be settled as early as practicable under the circumstances. You will be 

asked to review the likelihood of success with your Oversight Attorney on an on-going basis so that FDIC will 

have current information on which to base its decisions.

Generally, Oversight Attorneys are involved in settlement discussions. You must communicate all settlement 

offers, including any deadlines imposed, to your Oversight Attorney as soon as practicable. Such 

communications may be oral unless your Oversight Attorney instructs otherwise.

You should advise the opposing party’s counsel, and the court, as appropriate, that your Oversight Attorney will 

review all settlement offers or bankruptcy plans with the appropriate FDIC representatives and communicate 

their decisions.

The time needed to obtain authority to accept or reject a settlement offer may vary. You should provide 

sufficient notice to the FDIC Legal Division to secure pre-approved settlement authority for court-ordered 

mediation. The Legal Division generally assesses proposed settlements on the likelihood of success and the 

likely net economic recovery, considering, among other factors, the cost of litigation and the amount and 

collectability of a judgment, using net-present-value analysis.

In most cases, the Legal Division will not consider an offer to settle a matter for less than the full amount 

claimed without verified financial information on the approved form, which will be furnished by your Oversight 

Attorney. The debtor's disclosure statement and any other available financial information should be supplied in 

connection with the submission of a bankruptcy plan. 

Attach to any settlement offer a written description of any material changes that relate to acceptance of the 

offer (e.g., a change in your estimate of success or timing). When there are no such changes since your last 

status report, say so.
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Do not prepare a detailed analysis of the settlement offer unless specifically requested to do so. Your 

recommendation(s) will be an important part of the decision-making process, but the FDIC retains the sole 

authority to accept or reject a settlement offer.

Appeals

You must promptly notify your Oversight Attorney of any adverse ruling, so that a decision can be made

regarding appeal or writ application. Although you are expected to take allsteps necessary to protect the 

interests and preserve the rights of the FDIC pending a decision whether to appeal, no appeal shall be taken 

without the prior express written approval of the FDIC LegalDivision.

6.7 Criminal Referrals

The FDIC Legal Division has a responsibility to notify and, where appropriate, assist law enforcement officials, 

including the Office of Inspector General, in investigating conduct that may constitute a violation of criminal 

statutes. You must immediately report any information that indicates possible criminal behavior to the 

Oversight Attorney, subject to your duty to promptly report to the Office of the Inspector General (OIG) all 

instances of actual or suspected fraud, waste, abuse, misconduct or mismanagement perpetrated in 

connection with the programs and operations of the FDIC, and to disclose and provide to the OIG information, 

documents, or other evidence that may indicate that fraud, waste, abuse, mismanagement, or any other 

wrongdoing has occurred or may occur. Your Oversight Attorney may either prepare a Suspicious Activity 

Report form with your assistance or instruct you to do so under provided Legal Division guidelines.

The FDIC does not have authority or responsibility for instituting, conducting, or disposing of criminal 

proceedings. As a matter of policy, the settlement of civil litigation on behalf of the FDIC may not, expressly or 

by implication, extend to the disposition of any criminal charges or recommendations with respect to such 

charges, or to the disposition of any potential criminal or civil liability for fraud against the FDIC or the United 

States. Furthermore, in conducting civil litigation, including settlement negotiations, under no circumstances 

may you agree to withhold from law enforcement authorities any information relating to a possible criminal 

violation or investigation.

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Chapter 7: Case Plan & Budget Return to Chapter Index Page 40 of 73

Chapter 7: Case Plan & Budget

7.1 Budget Package

When you receive a referral from the FDIC on a legal matter, you must prepare a plan (the “Case Plan”) to 

explain how you anticipate accomplishing the work for which you have been retained, along with a case/matter 

budget (the “Budget”) showing the anticipated cost to FDIC of such legal representation, including professional 

fees and all anticipated expenses.

The Case Plan and Budget constitute the “Budget Package” and must be submitted together. The Case Plan 

summarizes the strategy for achieving satisfactory resolution of a matter, while the information provided in the 

Budget controls costs and the payment of invoices.

Except in a case of extreme urgency, the FDIC must approve the Budget before you begin working on the legal 

matter.

NOTE: The Budget must be approved by the FDIC before you can be paid for a legal matter. The FDIC uses on an 

on-going basis the cost estimates and other information provided in your Budget to assess cost-effectiveness 

and to measure progress. The Legal Division recognizes that estimates may be affected by changed 

circumstances; but, because the estimates are used in making business decisions, they must be as accurate as 

possible.

If you need to later amend your approved Budget, you must submit an Amended Budget Package (See Section 

7.8). If you have questions or need clarification on in the submission of your Budget Package, check with your 

assigned Oversight Attorney.

7.2 Case Plan

You and the Oversight Attorney must agree upon a Case Plan that sets forth the major steps you will take to 

accomplish asset recovery, or successful defense or prosecution of the assigned legal matter. For litigation 

matters, the Case Plan outlines the anticipated course of action based on the assumption that the case will go 

to trial. It also proposes a plan for settlement, unless settlement is clearly inappropriate. Each Case Plan should 

contemplate and include likely and foreseeable e-Discovery costs.

If you are handling a number of cases that are routine and involve similar issues or approaches, you may 

develop and submit a standardized Case Plan applicable for all such cases. When appropriate, note factors that 

differ between cases in the Case Plan. The decision to submit a standardized Case Plan will be made only with 

the approval of your Oversight Attorney.
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Chapter 7: Case Plan & Budget Return to Chapter Index Page 41 of 73

7.3 Budget

The Budget translates the Case Plan into financial expectations. The Budget should:

• Conform to the Case Plan;and

• Estimate the total cost of fees and all anticipatedexpenses.

7.4 Budget Forms

There are two types of budgets, as follows:

• Litigation

• Non-Litigation

Outside Counsel subscribed to the FDIC’s third-party billing service providers may be required to use an 

alternative method to submit their budget packages.

NOTE: Make sure the Budget conforms to the Case Plan for the legal matter. Your Oversight Attorney may 

require you to submit budget forms on an approved FDIC form. If so, instructions will accompany the form.

7.5 Completing the Budget Form

The following are the instructions for completing a Budget form.

• Select the Budget form appropriate for yourlegal matter.

• Fill out all requested information on the Budget form.

• Indicate in the appropriate box whether you are billing at the hourly rates specified in your LSA Rate 

Schedule, or if the FDIC has approved any type of Alternative Fee Arrangement, such as fixed fee, 

capped fee or other payment arrangement.

• Refer to the following table to determine information required for the type of billing you entered.

Rate Information Required

Hourly Complete the budget sections inwhich legal fees and expenses are

expected
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Chapter 7: Case Plan & Budget Return to Chapter Index Page 42 of 73

Rate Information Required

Fixed Fee (very rare and only with 

FDIC authorization)

Record the fixed fee as a totalwithout furtheritemization.

Submit the estimated completion dateand allowable related

expenses

NOTE: Any payment arrangement other than the hourly billing rates specified in your LSA Rate Schedule must 

be approved in writing by the FDIC prior to your provision of any legal services. If you have an approved 

Alternative Fee Arrangement, contact your Oversight Attorney for any necessary special instructions on Budget 

Form preparation.

• If appropriate, calculate the total estimated number of hours for all serviceproviders.

• Sign and date the Budget.

7.6 Budget Package Submission

Once you have completed the Budget Package, you must submit it to the FDIC for approval. The following steps 

outline the submission and approval process. 

• Submit the Budget Package (completed Case Plan and Budget Form) as instructed in your referral letter.

NOTE: If the Budget amount exceeds $100,000, ensure that you are in compliance with the Byrd Amendment by 

submitting the Byrd Amendment Certification or Disclosure form with your Budget Package.

• Your Oversight Attorney reviews the Budget. If it is satisfactory, your Oversight Attorney willrecommend

approval by the appropriate FDIC delegated authority. 

• You will be notified when the Budget is approved.

• If the Budget that you submit is apparently excessive for the scope of the referral, the Legal Division may 

request that you provide additional information to justify the requested Budget amount or that you 

make changes to and re-submit the Budget. In rare instances, the legal referral may be withdrawn or 

transferred if you are unable to submit a Budget acceptable to the LegalDivision.

7.7 Amended BudgetPackage

If the approved Budget amount is not sufficient to complete a case or matter, you must submit an amended

Budget Package. You should do this as soon as you anticipate that the approved Budget is not likely to be 

sufficient. Do not wait until after you have exceeded the approvedBudget.
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Chapter 7: Case Plan & Budget Return to Chapter Index Page 43 of 73

Formal approval from the Legal Division is required for any increase in the approved Budget. Make sure the 

amendment has been approved before you exceed the Budget. The Legal Division allows exceptions to this 

policy only when extraordinary circumstances arise.

NOTE: Failure to obtain written FDIC approval for an Amended Budget will be deemed a serious breach of your 

duty to the FDIC and may result in non-payment or disallowance of fees or expenses exceeding authorized 

amounts. You must report to your Oversight Attorney immediately any anticipated Budget changes.

An Amended Budget Package contains:

• Amended Case Plan with an explanatory narrative.

• Amended Budget form. 

NOTE: If the Amended Budget exceeds $100,000, make sure that you comply with the Byrd Amendment. If the 

previous Budget exceeded $100,000, it is not necessary to submit another Byrd Amendment Certification.

Completing the Amended Budget Package

Following are the instructions for completing an amended Budget Package using approved forms.

• Prepare a separate narrative explaining the reasons forthe amendment.

• If necessary, prepare an amended Case Plan that provides detail commensurate with the significance of 

the legal matter. For Litigation and Professional Liability matters, the amended Case Plan should 

summarize the revised strategy and circumstances giving rise to the amendment and project the 

schedule for preparing and trying the case underthose circumstances, including all expected litigation

events. Contactyour Oversight Attorney if there is any doubt about whether an amended Case Plan is 

needed.

• Fill out all requested information on the Amended Budgetform, in a manner like you used in completing 

the original Budgetform.

• Mark the appropriate box if you have submitted a previousamended budget.

• Use the mostrecent approved figures in the column for “CurrentBudget.”

• Sign and date the AmendedBudget.

Outside Counsel subscribed to the FDIC’s third-party billing service providers may be required to use an 

alternative method to submit their budget packages. 
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7.8 Amended Budget PackageSubmission

Once you have completed the Amended Budget Package, you must submit it to the FDIC for approval. The 

following steps outline the submission and approval process.

• Submit the Amended Budget Package in the same manner as your original Budget Package, as 

instructed in your referral letter. The Amended Budget Package consists of the Amended Case Plan (or 

explanatory narrative) and the Amended Budget (Form). Also include the Byrd Amendment Certification 

or Disclosure form if fees and expenses now exceed $100,000.

• Your Oversight Attorney reviews the Amended Budget Package. If it is satisfactory, your Oversight 

Attorney willrecommend approval by the appropriate FDICdelegated authority.

• The LegalDivision will notify you when the Amended Budget Package isapproved.

• As with the original Budget Package, you may be asked for supplements orchanges before the Amended 

Budget Package is approved. Do not perform any work not authorized by the original Budget

Package untilthe Amended Budget Package isapproved.

7.9 Alternative FeeArrangements

The FDIC will consider employing Alternative Fee Arrangements for legal matters or groups of matters only 

when such arrangements are expected to provide significant cost savings that justify a departure from the rates 

negotiated in the LSA, and when it is not practical to amend the LSA Rate Schedule. In appropriate cases, such 

arrangements may include fixed fees for a matter or class of matters (e.g., foreclosures), discounts to the LSA 

rate for a particular matter, capped total amounts, or “blended rates” where the firm and the FDIC agree that all 

attorneys assigned to the matter will bill at a single rate. Compensation cannot be based upon a contingent fee 

or other Alternative Billing Arrangement unless specifically approved in writing. Any Alternative Fee 

Arrangement must be documented in an agreement signed by the authorized representative of the law firm and 

approved by the Legal Division. The agreement should specify the service providers and billing rates included 

in the Alternative Fee Arrangement (for matters that will be billed at hourly rates) or the negotiated fee for 

matters that will be billed at non-hourly rates (e.g., foreclosures; unlawful detainers, requests for legal opinion). 

The agreement memorializing the Alternative Fee Arrangement must be made a part of the referral letter for the 

assigned legal matter.

No Alternative Fee Arrangement shall be effective, and no invoices shall be submitted under such an 

Arrangement, until the referral letter with the attached Alternative Fee Arrangement signed by both parties is 

received and confirmed in writing by the Legal Division’s Legal Information Technology Unit (“LITU”) at FDIC 

Headquarters or the equivalent group in a regional, field, or satellite office. LITU can be reached by contacting 

your Oversight Attorney.
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FDIC OUTSIDE COUNSEL DESKBOOK

Chapter 8: Invoice Preparation & Submission Return to Chapter Index Page 46 of 73

Chapter 8: Invoice Preparation & Submission

8.1 Overview for all Outside Counsel

This chapter covers the procedures for preparing and submitting an invoice to the FDIC. The FDIC uses a thirdparty service provider to provide electronic billing services.

Outside Counsel is encouraged to sign-up with the designated third-party vendor to fully utilize the FDIC’s 

Advanced Legal Information System (ALIS). This includes the electronic submission of case budgets and 

monthly invoices through the third-party vendor’s secure collaborative portal. See Section 8.11 below for more 

information on electronic billing. 

Outside Counsel may also submit monthly paper invoices if they choose not to use the electronic billing 

services, the cost of which is not a reimbursable expense. Paper invoices must be submitted according to the 

provisions of Section 8.12. All Outside Counsel firms that use paper billing must change over to the FDIC’s 

electronic billing service provider once they have invoiced an aggregate $100,000 in fees and expenses 

during a two-year LSA period.

NOTE: Outside Counsel must bill on a monthly basis (e.g. May 1 through May 31) and may not bill the FDIC 

more than once per month. Outside Counsel also may not bill for overlapping service periods (e.g., May 1 

through May 31 and then May 15 through June 15).

Failure to submit invoices in a timely manner as set forth above may significantly delay the FDIC’s processing 

and payment of invoices.

ABSENT EXTRAORDINARY CIRCUMSTANCES, THE FDIC IN ITS SOLE DISCRETION WILL NOT PAY INVOICES 

SUBMITTED OVER ONE YEAR FROM THE DATE UPON WHICH THE LAST SERVICES WERE RENDERED.

As discussed in Chapter 7, Case Plan and Budget, you must have an approved Budget from the FDIC Legal 

Division before you can be paid. An approved Budget authorizes you to begin submitting invoices for your 

services. 

At the conclusion or termination of the matter, you should prepare the final invoice for fees and expenses for 

submission within 90 days of the matter’s conclusion or termination. Refer to Chapter 9 and Chapter 10. 
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Chapter 8: Invoice Preparation & Submission Return to Chapter Index Page 47 of 73

8.2 Fees

Block Billing and Vague Description of Services

Block billing is a timekeeping method by which a lawyer or other billing professional aggregates time spent 

working on smaller tasks into a larger single “block,” rather than itemizing the time expended on the smaller 

specific tasks. Block billing the FDIC is strictly prohibited. Its use impairs the FDIC’s ability to review bills for 

reasonableness. When time records are block billed, the FDIC cannot accurately determine the number of 

hours spent on any single task and is therefore hindered in determining whether the hours billed are 

reasonable. Block billing “lumps together” multiple tasks and make it impossible for the FDIC to determine 

whether the amount of time for any task was reasonable. 

Vagueness is related to, but distinct from block billing. Block billing limits the ability of the FDIC to determine 

how much time was spent on a task, whereas vagueness limits the FDIC’s ability to determine the nature of the 

work performed. Vagueness is the failure to adequately describe the work performed. An adequate description 

in a billing entry is one where the Oversight Attorney can easily and readily identify the precise billed activity. As 

a guiding principle, if the Oversight Attorney would have to refer to the file or check notes to identify the billed 

activity, then the billing entry is vague and subject to rejection by the FDIC. 

THE FDIC STANDARD: Time billed for each fee billed must be identified separately (that is, not block billed) and 

with specificity (that is, not vague). Do not combine different types of activities into one entry on the invoice. 

Block billing of fees is not acceptable, even if the same individual performed the activities. Regarding 

vagueness, billing entries are unacceptably vague when they do not identify the specific legal issue, document, 

purpose of call/email/meeting, etc. or service that they support. The FDIC will reject invoices with block billing 

or that are unacceptably vague, delaying ultimate payment to outside counsel. Below are examples to assist 

outside counsel with avoiding issues of block billing or vagueness. 

Examples

Example 1: Block Billing that is also Unacceptably Vague

Phone call with plaintiff’s counsel; 

follow up update email to Oversight 

Attorney; revise draft motion based on 

foregoing conversation. 

(1.5 hours)

This entry is both unacceptable block billing and unacceptably 

vague. In this example, because of the use of block billing, the 

FDIC cannot evaluate the reasonableness of the time spent on 

revising the motion to dismiss. The example to the left is also 

unacceptably vague - even if it was billed in an itemized format - 

because it does not describe the purpose or necessity of the work 

nor the relevant legal issue.

Example 2: Corrected/Acceptable Entries from Example 1

- 10/10/2022 phone call with plaintiff’s 

counsel to satisfy court’s meet-andconfer requirement prior to 

amendment of motion to dismiss (to 

add additional statute of limitations 

ground); prepare and send a follow-up 

The examples to the left are acceptable invoice entries for the 

same tasks invoiced in the Block Billing Example 1, above.
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Chapter 8: Invoice Preparation & Submission Return to Chapter Index Page 48 of 73

Examples

email to FDIC Oversight Attorney 

confirming that plaintiff’s counsel 

does not object to the amendment.

(0.7 hours) 

- Revise draft motion to dismiss based 

on communications with plaintiff’s 

counsel and Oversight Attorney. (0.8 

hours) 

Example 3: Block Billing that is also Unacceptably Vague

Trial Preparation. (7.5 h) This entry is another example that is, at a minimum, 

unacceptably vague. It is likely also block billing depending on 

the tasks accomplished. 

Example 4: Itemized Billing that is Nonetheless Unacceptably Vague

Letter to Court. (0.5 h)

This example is itemized, non-block billing. However, the 

example does not identify the purpose of, or necessity for, the 

letter and provides no context as to its subject or the relevant 

legal issue.

Example 5: Corrected Entry from Example 4

Prepare letter to court requesting 

unopposed continuance of order to 

show cause hearing, ordering plaintiff 

to show cause why it should not be 

sanctioned over boilerplate discovery 

responses. (0.5 h)

This is an acceptable corrected invoice entry for the letter 

prepared in Example 4, above. It is itemized and not vague. 

Note: This entry might still indicate overstaffing if it was billed at a 

partner rate for an unopposed continuance letter. Overstaffing a 

task might involve assigning too many attorneys to task, or 

assigning a higher-level attorney work more appropriate for an 

associate level attorney. 

Rates

Timekeeper rates must be billed in US dollars only and in whole dollars, excluding cents, e.g. 400.00 and not 

400.25.

Time Increments

Billing in increments other than 0.1 billing hour (6 minutes) is unacceptable, e.g. billing in increments of .15 or 

.25 hours is not acceptable. Experts or other subcontractors of your firm must also bill time only in 6-minute 

increments, unless an exception is pre-approved. 

Expenses

Supply the following information for expenses:
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• Paper copy charges (unit cost multiplied by unitamount) up to $.20 per page.

• International FAX charges (date, phone number, and amount); telephonelong distance charge (line

charge) is the only acceptablecharge.

• International long distance telephone charges (date, phone number,and amount).

• Domestic long distance conference call charges (length of call, names ofparticipants, amount billed to 

your firm by conference provider). 

• Overnight delivery (date, amount, name of vendor and name of recipient.

• Electronic research, including the FDIC Legal Research Bank, (date, amount, name of the service 

provider and name of person performingresearch).

• Extraordinary postage (e.g., bulk or certified mail) (date andamount).

NOTE: Domestic long-distance charges within the United States for land lines or cell phones are considered 

overhead to your firm and should not be billed.

Claims for travel-related expenses must be made using the FDIC’s Law Firm Travel Voucher (See also the sample 

travel voucher). 

8.3 Billable Fees andExpenses

You may bill the FDIC reasonable charges for fees and expenses in US dollars only and in accordance with the 

following guidelines. These guidelines may be varied by the terms of any alternative fee arrangements agreed 

upon in your referral letter.

Fees

You may bill the FDIC for reasonable fees at approved LSA rates or other billing arrangements approved by FDIC 

in writing for: 

• Legal work on matters as approved;and

• Travel time (when no substantive FDIC work is performed) at 50% of the approvedLSA rate. 

NOTE: The FDIC requires law firms to reduce the hourly rate charged by 50% while an attorney is traveling 

unless legal work is being performed for the FDIC. The FDIC does not pay for First or Business Class airfares or 

luxury hotel accommodations.

The FDIC will pay only for air travel coach rates, and accommodations at the lower of the government or 

corporate discount rates. Travel-related expenses must be incurred in a prudent manner and in accordance 

with the guidelines set forth in the Outside Counsel Deskbook. Outside Counsel is required to keep on file all 

original Receipts and other supporting documentation for any and all expenses billed to the FDIC.
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Compensation cannot be based upon a contingent fee or other Alternative Billing Arrangement unless 

specifically approved in writing. Refer to Section 7.9, Alternative Fee Arrangements. Absent express FDIC Legal 

Division authorization, experts or other professional service providers may only be compensated for fees and 

expenses in accordance with the requirements of this Outside Counsel Deskbook. 

Expenses for Experts and Other Professionals

From time to time, it may be necessary for Outside Counsel to engage the services of other professionals, for 

example, experts, local counsel, consultants, etc. The Legal Division’s preference is to directly retain other 

outside legal support services providers in all possible matters. Absent express FDIC Legal Division 

authorization by FDIC delegated authority, experts or other legal support services providers may only be 

compensated for fees and expenses in accordance with the requirements of this Outside Counsel Deskbook. 

The Legal Division considers your oversight of experts and other professional service providers an important 

duty under your legal referral. Outside Counsel should document in writing with subcontracted professionals 

that they will comply with the billing and expense requirements in the Deskbook. Outside Counsel is required to 

keep on file all subcontractor invoices and original receipts for expenses submitted by subcontractors for 

review in the event the FDIC performs an audit of the matter, or if otherwise requested at any time by the FDIC 

Legal Division. ANY QUESTIONS ABOUT INVOICING, FEES, AND EXPENSE REQUIREMENTS FOR SUBCONTRACTED 

PROFESSIONALS MUST BE RESOLVED AND DOCUMENTED BETWEEN OUTSIDE COUNSEL AND THE LEGAL 

DIVISION BEFORE INCURRING EXPENSES. 

Initial Justification for Experts and Other Professionals

Prior to engaging the services of experts or other professionals such as local counsel or consultants (not court 

reporters, process servers, or other providers of routine support services) in connection with an FDIC legal 

matter, Outside Counsel must first provide the Oversight Attorney a written justification for the proposed 

expenditure. The justification must include a brief explanation of the service to be rendered, the rationale for 

engaging the service, the estimated hourly rate of the expert or other professional, the estimated number of 

hours, and an estimated total price. The writing requirement may be satisfied by e-mail. Upon review of the 

written justification, the FDIC Oversight Attorney will communicate whether Outside Counsel may proceed with 

the proposed engagement/expenditure. 

 

The justification serves to provide notice to the FDIC of potential expenses associated with experts or other 

professionals and aids in controlling costs. Providing the advance justification as described above does not 

relieve Outside Counsel of its responsibilities to maintain all subcontractor invoices and original receipts for 

expenses submitted by subcontractors for review in the event the FDIC performs an audit of the matter, or if 

otherwise requested at any time by the Legal Division, as noted above.

ANY EXCEPTIONS OR QUESTIONS ABOUT INVOICING, FEES, OR EXPENSE REQUIREMENTS FOR 

SUBCONTRACTED PROFESSIONALS MUST BE RESOLVED AND DOCUMENTED IN WRITING BETWEEN OUTSIDE 

COUNSEL AND THE OVERSIGHT ATTORNEY (OR OTHER LEGAL DIVISION DELEGATED AUTHORITY) BEFORE THE 

LEGAL SERVICES PROVIDER INCURS THOSE EXPENSES. FAILURE TO DO SO MAY RESULT IN NONPAYMENT.
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Expenses

You may bill the FDIC reasonable charges for the following expenses. Requirements for submitting copies of 

receipts are indicated below. These requirements do not relieve you of your duty to maintain original receipts 

and other supporting documentation of all expenses for audit purposes or if otherwise requested at any time by 

the FDIC Legal Division. 

• Itemized in-house paper copy charges (no more than $.20 per page, subject to current published FDIC 

rate schedule (FOIA) Itemized international FAX charges (international long-distance charge (line 

charge) is the only acceptable charge).

• Itemized international long distance telephone charges.

• Itemized domestic or international long distance conference call charges.

• Itemized overnight delivery. Itemization should include name of the deliveree and the name and type 

of delivery service used.

• Itemized electronic research, including the FDIC Legal Research Bank on Westlaw. Itemization should 

include person’s name who is performing the research, name of the service provider, and brief 

description of the research. Consult the FDIC Legal Research Bank at the commencement of research 

projects. See Section 6.4 FDIC Legal Research Bank. Prior approval by the Oversight Attorney is 

required for electronic research.

• Out-of-pocket expenses relating to providing training to FDIC

• Itemized extraordinary postage (e.g., bulk or certified mail).

• Expert witnesses or other professional service providers.

• Sales taxes on items that Outside Counsel pays, such as on lodging or utilities.

• Investigators.

• Court reporters.

• Outside photocopying (requires prior approval from your Oversight Attorney).

• Publication notices.

• Other Subcontractors, if approved. The name of the subcontractor, the name of the person that 

performed the work, a description of the work performed, the date, and the charge must be noted in 

the description for that entry on the invoice. The invoice format must be the same as for the Outside 

Counsel firm, and subcontractors must also bill monthly.

• Filing Fees. Generally, allowed only for state court matters. Please note that you may not bill for and 

should not pay for federal district or appellate court fees when filing on behalf of the FDIC. A 

description of any other filing fees, including the court and type of fee, must be noted in the 

description for that entry on the invoice.

• Other case-specific (non-overhead) expenses. A description of the expenses must be noted in the 

description for that entry on the invoice. Approval must be documented in the case file for audit 

purposes.

• Allowable travel expenses. Refer to Section 8.7 for submission and receipt requirements. 
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NOTE: 

(a) State and local taxes on FDIC allowable expenses are reimbursable. 

(b) Domestic long-distance telephone or FAX charges are considered overhead by the FDIC and are NOT 

reimbursable. 

Non-Billable Fees and Expenses

You may not bill the FDIC for the following fees or expenses: 

Non-Billable Fees

• Services of billable individuals who have not been included on the FDIC approved Rate Schedule 

attached to your LSA.

• Excessive number of attorneys performing services in a matter.

• Invoice and/or budget preparation, review, or for corrections to the invoice and/or budget required by 

the FDIC Oversight Attorney or Financial Specialist.

• Secretarial or clerical overtime that has not been approved by your Oversight Attorney.

• Hourly fees for time spent photocopying, sending facsimiles, etc.

• Excessive intra-office conferences between attorneys or paralegals for the purpose of providing 

instruction or status.

• Excessive time spent in “file review.”

• Excessive time spent in “review and revision” of documents that you prepare.

• Educational or development costs for you to become generally familiar with statutory and case law 

affecting the FDIC.

• Charging attorney time for tasks that should be performed efficiently and effectively at a lower 

expense by a paralegal or secretary, or charging paralegal time for tasks that should be performed by 

clerical workers.

• Hours charged at a more senior attorney rate when a matter should be handled by a less senior 

attorney.

• Routine budget preparation.

• Charging attorney time for preparing and presenting training to the FDIC.

• Sales taxes that are billed directly to the FDIC.

• Retainer fees. 

Non-Billable Expenses

• Ordinary postage.

• Charges related to word processing.
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• Charges other than “actual time” charges for electronic research (e.g., Westlaw or Lexis). Outside 

Counsel should consult the FDIC Legal Research Bank at the commencement of research projects.

• In-house paper photocopying charges at more than $0.20 per page.

• Clerical time for photocopying, sending facsimiles, filing etc.

• Excessive/unnecessary overnight mail charges.

• Meals, unless you are on approved travel. Further information about meal expenses when 

travelling for the FDIC is set forth below in §§ 8.7 (Travel Reimbursement—Subsistence) and 8.14 

(Frequently Asked Questions).

• Daily commuting expenses. 

• Sales tax (except for lodging) or surcharges imposed by utilities or phone services.

• Tax on services or costs relating to filing fees in United States District Courts or United States Courts of

Appeal, which fees, taxes or costs the FDIC is not required to pay pursuant to 12 U.S.C. 1819(b)(4). 

• Domestic long-distance telephone or FAX charges on land lines or cell phones. Cell phone roaming 

charges are also NOT billable to the FDIC.

• A service that is customarily included in the normal overhead or administrative expense of running a 

law firm (e.g., rent, electricity, routine telephone charges, HVAC, bill preparation, or electronic billing 

registration or membership fees).

• Travel agent fees.

• Routine scanning. 

8.4 Over-Budget Invoices

If the full payment of the invoice causes billings for the legal matter to exceed the grand total of the approved 

Budget, the FDIC Legal Division will notify you. The invoice cannot be paid until an Amended Budget is 

submitted and approved. The Financial Specialist will notify the Oversight Attorney that an Amended Budget is 

needed. The Oversight Attorney will work with your firm to submit an Amended Budget. Refer to Chapter 6 for 

further information. 

8.5 Correcting Invoices

After submission but prior to payment of an invoice, omissions to an invoice for fees and expenses incurred 

during a specific billing period may be added to an invoice. You will request the FDIC to reject the submitted 

invoice. A new complete invoice with the previously omitted fees and expenses for the billing period will then 

be submitted. The original invoice number will be used in connection to the corrected invoice.

8.6 AmendingInvoices

After both submission and payment of an invoice, omissions to an invoice for fees and expenses incurred 

during a specific billing period may only be included by submitting an amended invoice. The originally 

submitted invoice will remain valid and unchanged. A separate amended invoice will serve only to add any

omitted fees and expenses. You will submit a separate amended invoice as needed. The invoice will contain the 
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original invoice number for the same billing period followed by the letter “A” to indicate that it is an amended 

invoice. No fees and/or expenses that have been previously billed or paid are allowed.

NOTE: Amended invoices are not expected to be used as a standard billing practice but merely a courtesy for 

inadvertent omission. Every effort is expected to be made to bill all fees and/or expenses on the original invoice. 

Any submitted amended invoices will be approved or rejected at the discretion of the approving attorney.

8.7 Travel Reimbursement 

The following is provided to assist you in complying with requirements to limit expense reimbursement to those 

costs that do not exceed FDIC travel reimbursement regulations. The invoice file that Outside Counsel submits 

to FDIC for payment will not include receipts, except as indicated below in § 8.12 (Specific Procedures for 

Submitting Monthly Invoices in Paper Format). Supporting documentation for any authorized meal purchase 

must, however, always be included. For audit or other purposes, Outside Counsel must prepare an FDIC travel 

voucher for all travel relating to FDIC matters, and the hard-copy travel voucher, along with original receipts 

and all other supporting documentation, must be maintained by the firm. Note that this back-up 

documentation may also be requested by the FDIC Legal Division during the pendency of the legal matter. If you 

receive such a request, you must immediately deliver copies of the requested back-up documentation to the 

requesting FDIC Legal Division employee. The invoice description must also contain detailed information about 

your travel expenses. A separate travel voucher must be prepared for each traveler. Your up-front compliance 

with FDIC travel expense requirements will help ensure more prompt remittances on submitted monthly 

invoices. The following is a sample Travel Voucher for Outside Counsel: Sample Travel Voucher. 

Eligibility for Reimbursement

To be entitled to travel reimbursement, you must be on a temporary assignment that is at least 50 miles in 

distance from either your office or residence. If a temporary assignment concludes during the workday and is 

located within 100 miles of your office or residence, you are expected to return to your residence, rather than 

remain at the temporary location overnight. 

Travel Authorization

You must ensure that all travel on behalf of the FDIC is necessary, documented and approved by the Oversight 

Attorney.

Air Travel

Air travel is in coach class only, unless you bear the cost of the difference between coach and business or first 

class. Travel should be planned as far in advance as possible to take advantage of discounted fares, especially if 

reasonable certainty exists that the event will take place. If a restricted fare is booked and you require a change, 

a reasonable exchange fee may be claimed. Special approval is required for international air travel.
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Original receipts must be maintained in Outside Counsel’s files for audit purposes or if otherwise requested by 

the FDIC. The invoice description must include the traveler’s name, ticket number, class of travel, date of travel, 

departure and destination(s) and price paid. 

Travel agent fees will not be reimbursed.

Rental Cars

Rental cars should only be used if necessary and if cost-effective compared to the other means of 

transportation during the authorized travel. No car larger than a mid-size should be rented, unless there are 

three or more passengers or a larger vehicle is necessary to transport equipment, files, etc. Deviations from 

standard policy should be documented and maintained along with original receipts in Outside Counsel’s files. 

The invoice description must include the traveler’s name, name of the rental car company, the rental 

company’s invoice number, the dates of rental, type of car, the number of passengers, miles driven, gas usage, 

and any other relevant information. The FDIC will not reimburse you for Personal Accident Insurance (“PAI”) or 

Personal Effects Coverage (“PEC”). The cost of Collision Damage Waiver (“CDW”) coverage is allowed if you do 

not already have insurance coverage for collision damage. Note that most corporate charge cards automatically 

provide for the CDW.

Lodging

You should make use of government rates for lodging whenever possible. Any hotel expenses considered 

excessive or unreasonable will not be reimbursed. Original receipts must be maintained in Outside Counsel’s 

files for audit purposes or if otherwise requested by the FDIC. The invoice description must include the date, 

hotel name, type of room, rate charged, and should itemize any other hotel charges that are billed by your firm 

to the FDIC. Hotel Wi-Fi service costs require advance approval and listing on the travel voucher. 

Subsistence 

On overnight travel status you are reimbursed only on a per diem basis. The current FDIC prorated per diem

rates allowable are listed below in 1⁄4 day increments. The current FDIC per diem rates are also listed in Section 

16.0 of the Contractor Travel Reimbursement Guidelines. Specific per diem rates for different localities may be 

found on the General Services Administration’s (GSA) web site Per Diem Look-up page. Where the information 

contained on the GSA web site and FDIC Guidelines differ, the GSA web site controls.

When you are on per diem, meals or incidental expenses such as laundry and cleaning are covered by the per 

diem allowance. Note also that any group meals provided while on per diem subsistence must be deducted 

from the per diem allowance of each meal recipient. See § 17.0 of the Contractor Travel Reimbursement 

Guidelines. Your per diem allowance is the standard reimbursement for meals while on FDIC travel, and group 

meals are only for limited, appropriate occasions in the Legal Division’s sole discretion. No group meal will be 

considered as an expense unless accompanied by the contemporaneous written approval of the Oversight 

Attorney and the itemized listing of each recipient. See also the FAQ on group meals in § 8.14. 
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Per Diem for Overnight Travel 

If travel extends into more than one calendar day, prorated per diem for partial days is required. One-fourth of 

the per diem allowance is payable for each quarter-day:

Departing If you leave your

residence/office

between:

Prorated Per Diem Rates

12 Midnight to 5:59AM 100%

6:00 AM to 11:59 AM 75%

12 Noon to 5:59 PM 50%

6:00 PM to 11:59 PM 25%

Returning If you leave your

residence/office

between:

Prorated Per Diem Rates

12 Midnight to 5:59AM 25%

6:00 AM to 11:59 AM 50%

12 Noon to 5:59 PM 75%

6:00 PM to 11:59 PM 100%

If you depart from and/or return directly to your residence, per diem is allowed from the time of departure from 

your residence until the time of return to your residence. If departure is from and/or return is to your office, per

diem is allowed from the time of departure from your official station until the time of return to your official 

station. Outside Counsel must provide start and return times with their supporting travel documentation to and 

from the time of departure from your official station until the time of return to your official station. Outside 

Counsel must provide start and return times on the invoice and retain all supporting travel documentation to 

support the claimed quarter days of per diem for alltravelers. 

Miscellaneous Meal Expense

If you are in non-overnight travel status and are away from your residence for at least 11 consecutive hours 

excluding mealtime, you may be reimbursed on an actual expense incurred basis with the meal cost limited to a 

$10.00 charge (receipt required) or $6.00 without a receipt.

Use of Privately-Owned Vehicle
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You may be reimbursed for use of your privately-owned vehicle while on travel for FDIC- related business. The 

maximum reimbursement rate per mile will be the rate currently stipulated by the IRS.

If you choose to use your vehicle in lieu of air travel, the maximum reimbursement will be the lesser of the cost 

of air travel or mileage reimbursement and the additional per diem, if any. Appropriate documentation should 

be maintained in Outside Counsel’s files to show the actual cost of coach air travel compared to mileage 

reimbursement.

NOTE: The FDIC does not insure privately-owned vehicles for liability.

Taxicabs or Rideshare 

The use of taxicabs or rideshare businesses (e.g. Uber or Lyft) is permitted while you are on official travel for the 

FDIC. Reimbursement for such fares (plus the customary 15% tip) is allowed. The invoice description must 

include the traveler’s name, the name of the taxi service, the to and from location, the date, and the charge. 

Original receipts must be maintained in Outside Counsel’s files for audit purposes or if otherwise requested by 

the FDIC Legal Division. 

Taxi or rideshare hire is appropriate when: 

• Public transportation and/or hotel courtesy transportation is not available or when time or other 

factors make it impractical to use available public conveyances;

• Traveling between transportation terminals and your residence, hotel or office while on official travel 

status; or for

• Traveling from your residence to your office to depart on assignment requiring at least one night’s 

lodging, and from your office to your residence on the day you return from that trip. 

Note that you may not seek reimbursement for taxi or rideshare fares for trips used to obtain meals or for taxi or 

rideshare “wait fees.” 

Non-Reimbursable Travel Expenses

Examples of expenses that will not be reimbursed include the following:

• Alcoholic beverages, entertainment;

• Laundry, dry cleaning and pressing (covered by per diem reimbursement);

• Travel insurance; 

• Meals, which are covered by per diem reimbursement, with a limited exception for group meals 

purchased by your firm on appropriate occasions. Any group meal your firm intends to submit to 

the FDIC as an expense must be approved by your Oversight Attorney at or before the time of 

purchase. Additionally, in order to comply with FDIC Travel Regulations, your firm must deduct all 
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approved meal expenses from the per diem claim of each meal recipient. See §§ 8.7 (Subsistence) and 

8.14 (FAQ). See also § 17.0 of the Contractor Travel Reimbursement Guidelines for further information; 

• Parking or traffic fines; 

• Gratuities or tips paid to service staff inside the lodging facility (covered by per diem reimbursement); 

• Cost of travel for spouses, other family members, or friends is not allowable under any circumstances.

Travelers will not be reimbursed for excess costs caused by:

• Taking an indirect route as a matter of personal preference;

• Premature departure for personal reasons from a temporary location; or

• Extending a stay for personal reasons. 

Firm Travel Voucher Completion

A Law Firm Travel Voucher must be prepared after completion of travel and maintained along with original 

receipts in Outside Counsel’s files for audit purposes or otherwise upon request by the FDIC. Indicate the 

purpose of travel on the first line. Dates and times of each departure from residence or office, arrival at the 

place of temporary assignment, and arrival at the office or residence must be shown on the Law Firm Travel 

Voucher (see also the sample travel voucher). Note that the FDIC does not make partial Travel Voucher 

payments. No payment will be made until the Travel Voucher is properly submitted. 

Receipts

Except for per diem expenses, you must maintain valid original receipts for all travelers along with the Law Firm 

Travel Voucher for all travel expenditures regardless of cost. If a receipt is not normally provided for the expense 

(bus or subway token, etc.) the certification signed by the traveler on the Firm Travel Voucher will justify the 

expense. The receipts (boarding pass, hotel, parking, etc.) should be taped to a blank piece of paper and 

attached to the travel voucher.

Receipts attached to the Firm Travel Voucher should be originals indicating the name of the payee, date paid, 

amount, and the service rendered. This includes the original Passenger Receipt Coupon of the airline ticket. 

Altered receipts will not be reimbursed.

Penalties

WARNING: The penalty for knowingly submitting falsified travel charges on an invoice can be three times 

the amount of the claim plus a civil money penalty of $10,000 under the False Claims Act, 31 U.S.C. § 3729. 

Also, false statements may be criminally prosecuted under 18 U.S.C. § 1001. The penalty can be up to 5 

years in jail. A corporation that violates 18 U.S.C. 1001 can be fined up to $500,000 per occurrence. See 18 

U.S.C. § 3571.
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8.8 FDIC InvoiceReview

Invoice files should be submitted in a timely manner (refer to Section 8.1), and as directed in your referral letter 

or by your Oversight Attorney. Upon receipt, the invoices are forwarded to the Oversight Attorney for review and 

approval. The Oversight Attorney performs a substantive review of your invoice, makes adjustments if 

necessary, and approves it for payment or rejects the invoice. 

NOTE: FDIC invoice processing time is a minimum of thirty (30) days after receipt of a valid invoice file. Payment 

is generally not made in less than thirty (30) days.

The FDIC makes all payments by Electronic Funds Transfer (AKA “wire transfer”) under FDIC EFT Guidelines in 

accordance with the information your firm provides on the Payee Information for Automatic Deposit of 

Payment Form that is part of the Outside Counsel Application package. 

8.9 Reconsideration ofDisallowances

You must submit all requests for reconsideration of disallowances by preparing a new invoice file for the 

amount to be reconsidered. The new invoice file must have the original invoice number followed by the letter 

“R” along with justification for reconsideration. The new invoice file should be submitted to the Legal Division 

within 90 days from receipt of the notice of disallowance. The request must include matter number, invoice 

number, and the amount disputed, along with justification for reconsideration (e.g., copies of missing 

documentation, narrative rationale).

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.

8.10 Audit and Records Retention 

Outside Counsel must permit the FDIC, the FDIC Office of Inspector General, the FDIC Legal Division's Risk 

Management Group, or the Government Accountability Office, or their representatives, to conduct audits or 

reviews of your FDIC billings, including previously paid invoices and/or receipts, and supporting 

documentation.

For purposes of subsequent audits, Outside Counsel must retain the following for at least three years after final 

payment under the legal referral:

• Copies of all invoice filesubmissions;

• Original receipts and underlying support documentation not submitted with the Invoice file; 
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• Subcontractor invoices; 

• Original or electronic time sheets and time and expense adjustment records. Example of adjustment 

records includes documentation explaining differences between time sheet hours and invoices hours for 

billable individuals; and 

• Signed copies of all budget and amended budget forms, as well as signed copiesof the Legal Services 

Agreement (LSA) and the LSAAmendments form. 

See the Appendix C, Record Retention Guidelines for Electronic Billing for record retention requirements. The 

FDIC reserves the right to obtain additional information during any stage of its review of invoices or underlying 

support documentation, including subcontractor invoices and electronic time sheets.

8.11 Specific Procedures for Submitting Monthly Invoices Electronically 

This option is available only to Outside Counsel subscribed with the FDIC’s third-party electronic billing services 

provider. For Outside Counsel interested in signing up for the third-party electronic billing, you may contact the 

LSSCG at LSSCG@fdic.gov to receive further instructions. 

For Outside Counsel already subscribed, Wolters Kluwer, the Legal Division’s third-party electronic billing 

services provider has established a web site at https://www.wkelmsolutions.com/ (website is external to 

FDIC.gov), which contains detailed, monthly invoice instructions. Outside Counsel may also contact Wolters 

Kluwer/ELM Solutions at https://www.wkelmsolutions.com/services/support-services or via telephone at 1 

(800) 770-5121 (Toll-free) or 1 (832) 369 6000. 

8.12 Specific Procedures for Submitting Monthly Invoices in Paper Format

For Outside Counsel not subscribed to the third-party electronic billing services provider that will send in paper 

invoices, you must follow the guidelines below:

• Legal Invoice for Fees and Expenses (LIF&E) form should be completed and signed and placed on top of 

the invoice;

• The invoice needs to be on the firm’s letterhead, in proper format, and dated. Task- based billing is not 

acceptable;

• Fees must be in chronological order;

• Fees must have the name of the Timekeeper;

• Fees must have the Timekeeper ID;

• Include a Timekeeper Summary;

• Include Expenses (if there are any);

• Receipts for expenses should be attached; and

• The invoice and all supporting documentation (receipts) need to be 

• submitted in original form and forwarded through the U.S. Mail to the attention of:

[Name of Financial Specialist assigned to matter] 

Legal Information Technology Unit 
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Federal Deposit Insurance Corporation

3501 Fairfax Drive

Arlington, VA 22226 

NOTE: Each firm must use the FDIC’s electronic billing service provider once the firm has submitted invoices 

totaling $100,000 during the two-year LSA period. Once the $100,000 ceiling has been reached, all further 

invoices will only be accepted by the FDIC if they are submitted via electronic billing. See § 8.11 above for 

information on the electronic billing services provider. 

8.13 Law Firm Paper Invoice Format

Law firm invoice format requirements are discussed below. Timekeeper Name or Timekeeper Initials are 

required for all Fee line items, and the Timekeeper Name & Timekeeper IDs are required for the Timekeeper 

Summary. 

Fees

Use the following format when totaling the hours and charges for all legal services:

Date of 

Service

Time 

Keeper

Service/Activity

Description

Time 

Charged

Approved 

Hourly Rate

Amount

(Rate x Time)

8/11/20 JFG Draft Motion to Dismiss Compliant 5.00 Hrs. $360.00 $1800.00

Timekeeper Summary

Use the following format for recapitulation of the total services billed on your statement:

Service By Title Time Keeper IDs Hours Hourly Rate Total

John Brown Partner JFB 16.10 $600.00 $9,660.0

Jane Green Associate JGG 31.50 $360.00 $11,340.0

Brian White Paralegal BDW 10.00 $180.00 $1,800.0

Example of Itemized Expenses

Date Expense Amount

2/28/2020 Photocopy - 46 pages at $.20 (submit on one line only) $9.20 

2/2/2020 Conference call - 617-262-8119 $28.80 

2/19/2020 Overnight Delivery - FedEx to JGG $31.75 

2/27/2020 Electronic Research - Westlaw, consulted with the FDIC Legal 

Research Bank, by Brian Brilliant 

$254.00 
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Chapter 8: Invoice Preparation & Submission Return to Chapter Index Page 62 of 73

Date Expense Amount

2/5/2020 Extraordinary Postage - Certified $12.75 

02/01/20 - 02/28/20 Jack DaMony - Expert Witness (include expert’s itemization) $8,500.00 

2/28/2020 Acme Reporting, deposition of J. Genius, FDIC bank examiner $925.00 

2/28/2020 Panic Copying, submission of Reply brief $120.00 

02/05/20 - 02/06/20 Travel for JFB, 2/5 - 2/6, Washington DC to Settlement Conference 

in Boston, MA

$1,280.50 

2/28/2020 Photocopy - 46 pages at $.20 $9.20 

8.14 Frequently Asked Questions 

May I have expert witnesses hired by my firm call you when they have questions about their payment?

No, any expert or other entity hired or retained by your firm is your subcontractor and should address all 

payment questions to you. Their invoices are included as expenses in your invoice to the FDIC. The FDIC will not 

pay them directly. Outside Counsel must maintain subcontractor invoices, receipts, and proof of payment in 

Outside Counsel’s files for audit purposes or if otherwise requested by the FDIC. As detailed at Section 6.6 

above, if you select a subcontractor which has an existing Legal Support Services Agreement (LSSA) with the 

FDIC, you may consider having that vendor deal directly with the Oversight Attorney. 

In no case should a vendor with a pre-existing LSSA charge rates that exceed the LSSA, absent written, preapproval from the Oversight Attorney. Similarly, in no case may a vendor with an LSSA render services or levy 

charges or fees not contemplated in its existing LSSA, absent written pre-approval from the Oversight Attorney.

When should I submit an Invoice?

On a monthly basis, if the total equals $500.00 or more. If your total is less than $500.00, submit your invoice 

quarterly, unless this causes undue hardship (January-March; April- June; July-September; October-December).

May I bill for clerical or secretarial overtime?

No, unless such overtime is requested by the Legal Division or occasioned by an emergency created by the FDIC. 

In any case, the Oversight Attorney assigned to your matter must approve clerical or secretarial overtime. 

I know I may bill the FDIC for extraordinary postage (e.g. bulk or certified mail). May I also charge for 

ordinary postage?

No.

What common mistakes should I avoid when submitting my Invoice?

Make sure you use a different invoice number for each invoice you submit unless instructed otherwise.
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Chapter 8: Invoice Preparation & Submission Return to Chapter Index Page 63 of 73

Always be mindful that you must maintain all original receipts and other supporting documentation in your 

FDIC files and that it must be made available to the FDIC upon request.

Make sure the “billing from” and “billing through” dates do not overlap. For example, if an invoice covers the 

period from January 2 to January 16, a subsequent invoice should not cover the period from January 10 to 

January 29.

Be sure to itemize attorney and non-attorney fees separately.

Our firm charges $0.25 per page for in-house photocopying. May I bill the FDIC for this amount?

No, the maximum charge for necessary photocopying is $0.20 per page.

What information do I need to include regarding fax and phone charges?

Due to widespread use of cell phones, inexpensive universal business calling plans, and the lower costs for 

domestic long-distance FAX and phone charges, these charges are considered overhead and are not 

reimbursable by the FDIC. Necessary Conference Calling services and international long-distance phone and 

FAX charges (line charges/actual costs only) are reimbursable as expenses on your monthly invoices. You need 

to include the date, phone number and charge for each call in the invoice description. The bill from the carrier 

must be retained in your firm’s files for three years after final payment. 

May our firm submit a group meal expense while we are providing services to the FDIC?

Subsistence allowance (per diem) is only available to authorized travelers and is a daily allowed amount 

claimed on each recipient’s Travel Voucher. Your per diem allowance includes the cost of meals. No meals are 

billable as an expense by a firm whose members are not in travel status. 

Under some limited circumstances, such as during depositions, hearings or trials, it may be prudent to have a 

group meal brought in and to work in place, usually with your FDIC Oversight Attorney. If your firm intends to 

bill such a group meal to the FDIC, all recipients of the meal must deduct the meal’s cost from their daily per 

diem allowance in accord with FDIC travel regulations. The Oversight Attorney must approve the group meal 

expense AT OR BEFORE THE TIME OF THE MEAL and, if present should sign the bill to indicate authorization. If 

the Oversight Attorney is not present, your firm must obtain his or her other contemporaneous written approval 

or pre-approval, such as in an email. Alternatively, your firm may pay for the group meal and then refrain from 

making the otherwise required per diem reduction for each recipient. 

Alcoholic beverages, meals that exceed per diem amounts, meals for other guests, or meals when your 

employees are not in approved travel status may not be billed to the FDIC. 

How can I learn the nature and justification for any adjustments made to my paid invoices?

When an invoice is paid, the Outside Counsel firm receives an email with details of any adjustments made to the 
FDIC OUTSIDE COUNSEL DESKBOOK

Chapter 8: Invoice Preparation & Submission Return to Chapter Index Page 64 of 73

invoice including the adjusted amount and the external comments where the justification for the noncompliance adjustment is entered by the individual who made the adjustment. In addition, ebilling firms also 

have access to a report in Sharedoc (the ebilling application that is used to submit and track invoice statuses) 

that provides the line-item invoice adjustments with the justification. 

Does the FDIC accept any block billing of our invoices? 

Block billing is a timekeeping method by which a lawyer or other billing professional aggregates time spent 

working on smaller tasks into a larger single “block,” rather than itemizing the time expended on the smaller 

specific tasks. Block billing of fees is not acceptable, even if the same individual performed the activities. The 

Legal Division’s Legal Fees Specialists or Attorneys will reject any block-billed fees, resulting in payment delays 

to Outside Counsel. See the examples in § 8.2 above. 

How can my law firm avoid vagueness and submit the clearest fee bills? 

Vagueness is the failure to adequately describe the work performed. Billing entries are unacceptably vague 

when they do not identify the particular legal issue, document, purpose of call/email/meeting, etc. or service 

that they purport to provide. As a guiding principle, if the Oversight Attorney would have to refer to the file or 

check notes to identify the billed activity, then the billing entry is vague and subject to rejection by the FDIC. See 

the examples in § 8.2 above.

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FDIC OUTSIDE COUNSEL DESKBOOK

Chapter 9: Legal Matter Closeout Return to Chapter Index Page 65 of 73

Chapter 9: Legal Matter Closeout

9.1 Final Invoice Package

You should submit your final Invoice Package within 90 days of the conclusion or termination of each matter. 

Refer to Chapter 8, Invoice Preparation & Submission.

9.2 Returning FDIC Property to FDIC Upon Conclusion of a Matter

No records, as described below in § 9.3 or FDIC Property as described in this subsection, may be destroyed 

without the FDIC’s specific direction. All information contained in FDIC legal matter files, whether supplied by 

the FDIC or third parties or created by you, including attorney work product, belongs to the FDIC. Refer to 

Section 1.6, File Retention. 

Upon completion of the legal matter and only upon receipt of written authorization from the Oversight 

Attorney, you must return or destroy all FDIC Property (that is, all media formats of pre-receivership information 

of a financial institution or any other information obtained from the FDIC that contains personally dentifiable 

private or business-confidential information provided to you by the FDIC, its e-Discovery vendors or other 

contractors). Once the FDIC Oversight Attorney authorizes the return or destruction of such FDIC Property, all of 

it must be removed from your computer systems, servers, individual workstations, back-up media, file drawers 

and all other locations, and certified by you as returned or destroyed. Removal of FDIC Property from your 

electronic and paper systems, and its return or destruction, must be certified as true, accurate and complete by 

the attorney who signed your firm’s Legal Services Agreement with the FDIC, their successor, or the equity 

owner in your firm that is supervising the firm’s handling of the FDIC legal matter. The Certification and/or any 

returned FDIC Property must be delivered to the FDIC Oversight Attorney. Click the following web link to access 

the Certification: Certification of Removal and Return or Destruction. If your firm was supplied with any access 

tokens, security keys or passwords to view FDIC Property, those items must also be included and certified as 

destroyed or returned. 

Any such FDIC Property, however, extracted and used to create work product by your firm in a FDIC legal matter 

becomes part of the case record for that matter and is subject to the record maintenance requirements of 

Section 9.3 below. 

9.3 Record Maintenance Procedures for Concluded or Terminated Matters 

Subsequent to the procedures specified in § 9.2 above regarding the disposition of FDIC Property, you must 

contact the FDIC to obtain authorization before any case records of a FDIC legal matter in your possession are 

destroyed pursuant to the FDIC's record retention requirements. A case record may consist of FDIC Property 

extracted and used in a legal matter, the firm’s work product (including that which uses or references FDIC 

Property), and adequate documentation of the nature, handling, significant developments or outcome of the 

matter. 
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Chapter 9: Legal Matter Closeout Return to Chapter Index Page 66 of 73

Your requests for such authorization are to be directed to the Risk Management & Records Group (“RM&RG”) at: 

FDIC Legal Division, Attn: Risk Management & Records Group, 3501 Fairfax Drive, Mail Stop VS-E-6112, Arlington, 

VA 22226; via email at thcurtis@fdic.gov or at (877) ASK-FDIC (275-3342) (ask the operator to speak with the 

Legal Division, Contracts and Risk Management Unit, Risk Management & Records Group. No records may be 

destroyed without the written permission of RM&RG. 

If the FDIC cannot authorize destruction of records in your possession, the FDIC will take custody of them. The 

FDIC will provide for the shipment of the records to a FDIC storage facility or to the FDIC directly. Only those 

fees that are documented and submitted on your final Invoice Package as incurred to permanently withdraw 

records from a private records storage vendor are reimbursable by the FDIC. Prior to shipping the records, you 

must provide the FDIC with an inventory for all the records being shipped. Refer to 9.4, Requirements and 

Shipping Instructions for Records Taken Into the FDIC's Custody, and 9.5, Record Inventory Format. The FDIC 

will not pay for creation of inventories. 

If, however, you prefer to retain matter records, you may, with approval of RM&RG at thcurtis@fdic.gov, 

continue to preserve them at your own cost. Your request to the RM&RG should be made promptly when 

matters are concluded. If retention is approved, the RM&RG will require an inventory of the records and instruct 

the date when the records being kept by you must be destroyed, in compliance with the FDIC's record retention 

requirements. Inventory requirements are set out in Section 9.5, Record Inventory Format, below. You will be 

responsible for all storage costs during the time that you retain the records. All costs and fees associated with 

destruction of the records will be at your own expense. Neither the Oversight Attorney nor the RC&RG can 

commit to pay for storage costs, permanent withdrawal fees, destruction charges, or any other expenses 

related to the records that you retain. While the records are being preserved by you, they shall not be 

intermingled with non-related matters pertaining to other FDIC assignments or other clients. 

9.4 Requirements and Shipping Instructions For Records Taken Into the FDIC's 

Custody 

Each box to be taken into the FDIC’s custody must be boxed correctly and inventoried before it can be accepted. 

The FDIC will not pay for the creation of inventories. A box should contain matters of like media (paper or 

electronic) and like kind only (e.g., either litigation or asset disposition) that were closed in the same year. 

Contact RM&RG at thcurtis@fdic.gov for specific inventory and boxing instructions. The box inventories are 

provided to the RM&RG electronically [inventories can be in Word (no tables), Excel, or PDF format] and a copy 

must be included in each corresponding box. Thereafter, the FDIC will send you a box label encoded with a 

tracking number matched to the box’s inventory. Once box labels are correctly applied by you to their 

corresponding boxes, the boxes will be ready for shipment to a FDIC storage facility. In rare instances, the FDIC 

may send you pre-paid, pre-addressed mailing labels to have inventoried boxes shipped directly to the FDIC. 
FDIC OUTSIDE COUNSEL DESKBOOK

Chapter 9: Legal Matter Closeout Return to Chapter Index Page 67 of 73

9.5 Record Inventory Format 

Each box of FDIC records transferred to the FDIC or retained by you must have an inventory of its contents. A 

box should contain matters of like media (paper or electronic) and like kind only (e.g., either litigation or asset 

disposition) that closed in the same year. The inventory should include the: name of your law firm; number 

that you assign to each box and recorded on the box; matter name; pertinent banking institution; date that the 

matter was completed and closed; FDIC matter number; and type of matter (e.g., litigation or asset disposition). 

To the extent possible, include further identifying information for each matter, such as the type of documents 

(e.g., pleadings or settlement). When boxes contain multiple matters, all matters in any one box must have 

closed in the same year and be of like kind. Inventories for electronic records retained on your network with 

RM&RG's authorization should reflect similar information.

NOTE: The FDIC will not pay for the creation of inventories pursuant to procedures set forth in Section 9.3, 

Record Procedures for Concluded Matters. 

NOTE: For purposes of subsequent audits or upon the request of the FDIC, Outside Counsel must retain certain 

documentation. Refer to Chapter 1 (Section 1.7), and Chapter 8 (Section 8.11.) If your firm fails to maintain the 

required documentation, the FDIC may disallow those previously paid fees and expenses. 

Return to Outside Counsel Home Page
FDIC OUTSIDE COUNSEL DESKBOOK

Chapter 10: Post-Representation ResponsibilitiesReturn to Chapter Index Page 68 of 73

Chapter 10: Post-Representation Responsibilities

10.1 Responsibilities as Former Outside Counsel

This chapter identifies some of the responsibilities that continue after your representation of the FDIC 

concludes. The FDIC recognizes that as a lawyer you are also subject to requirements imposed by the 

jurisdiction in which you practice. The provisions of 12 C.F.R. Part 366, may also apply to you as former Outside 

Counsel of the FDIC.

10.2 Conflicts of Interest and Confidentiality 

As former FDIC Outside Counsel, you may not, without a written waiver from the FDIC, represent another client 

against the FDIC in a matter substantially related to any matter in which you previously represented the FDIC. 

You are also expected to observe all requirements of attorney-client confidentiality after the conclusion of any 

FDIC representation.

When in doubt about the existence of a conflict, you should nevertheless disclose the matter to the FDIC and 

seek a waiver. If you have questions concerning conflicts, please contact the Legal Services & Special Contracts 

Group (“LSSCG”) in Washington, DC at (877) 275-3342 during normal business hours. You may also send an 

email with conflicts questions to LSSCG@fdic.gov. 

10.3 File Retention 

As former FDIC counsel, if you decide to retain the files related to the legal matter(s) for which you represented 

the FDIC, for your own purposes as described in Section 9.2, you have an obligation to preserve such files until 

the files are either returned to the FDIC or properly destroyed in accordance with FDIC records management 

policies and retention schedules. Those files may not be destroyed without the express permission of the FDIC 

as described in Section 9.2. 

10.4 Contacts with the Public and Media 

All restrictions concerning public and media contacts applicable during your representation of the FDIC 

continue after your representation concludes. These restrictions are discussed in Chapter 1, Section 1.11 and 

prescribe the exclusive role of the FDIC Office of Communications in discussing FDIC matters with the media.

10.5 Identifying FDIC as a Former Client 

You may list FDIC as a former client in published materials provided you comply with the guidance discussed in 

Section 1.2. 
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Chapter 10: Post-Representation ResponsibilitiesReturn to Chapter Index Page 69 of 73

10.6 Compliance with Subpoenas and Other CourtOrders

If you are served with a subpoena, court order or other legal process relating to your representation of the FDIC, 

you must immediately notify both the FDIC’s General Counsel and Oversight Attorney, and you may not disclose 

FDIC records or provide testimony without FDIC authorization.

This requirement and the follow-up steps are discussed in FDIC regulations at 12 C.F.R. § 309.7. 

You agree to cooperate with the FDIC, if the Legal Division decides to appeal or challenge the subpoena or 

order. Under no circumstances should it be construed that FDIC will represent you in this matter or reimburse 

you for any legal fees or other expenses you may incur in complying with this requirement. The FDIC, however, 

will consider requests for reimbursement on a case-by-case basis when presented in writing to the General 

Counsel. 

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FDIC OUTSIDE COUNSEL DESKBOOK

Chapter 11: Foreign Law Firms Return to Chapter Index Page 70 of 73

Chapter 11: Foreign Law Firms

11.1 Definition 

The FDIC occasionally requires the retention of a law firm located and operating in a country other than the 

United States of America (“US”). For purposes of this Outside Counsel Deskbook, a “foreign law firm” shall be 

defined as any law firm retained by the FDIC that meets both of the following criteria: 

• The law firm does not operate any office location within the US;and

• The law firm is not governed by or subject to the US Internal Revenue Service, requiring issuance of a 

Federal taxpayer identification number fortax purposes.

11.2 Outside Counsel DeskbookCompliance

A foreign law firm is required to adhere to many of the same requirements of this Outside Counsel Deskbook as 

US firms; however, the FDIC recognizes that some Outside Counsel Deskbook provisions, such as laws and 

regulations that are unique to the US, may not apply to a foreign law firm. Therefore, the specific requirements 

applicable to a foreign law firm are set out in this chapter, including references to other applicable portions of 

the Outside Counsel Deskbook. It is important that the principal members of a foreign law firm, including the 

accounting department, understand and comply with all applicable policies, procedures and forms as specified 

herein.

11.3 Application Requirements 

FDIC requires all correspondence from a foreign law firm to be in English. Prior to entering into a Legal Services 

Agreement, the FDIC requires the foreign law firm to submit the following items: 

• A firm brochure or a narrative statement about the firm, including information regarding the areas of 

law in which the firm practices and highlighting areas of expertise.

• A statement acknowledging the requirements of FDIC’s policies and procedures governing Outside 

Counsel conflicts of interest and completion of the related Representations and Certifications Form. 

11.4 Legal ServicesAgreement

A Foreign Legal Services Agreement (“LSA”) is an agreement between a foreign firm and the FDIC that contains 

terms and conditions applicable to legal referrals and is incorporated in all referral letters. The LSA and any 

referral letter incorporate applicable parts of the Outside Counsel Deskbook, as it may be amended from time 

to time. 

Incorporated in and attached to the LSA is an Hourly Rate Schedule Form listing each attorney and 

paraprofessional assigned to work on FDIC matters (“approved billable individuals”).

A foreign law firm is required to complete the following information on the Hourly Rate Schedule Form for each 

approved billable individual: 
FDIC OUTSIDE COUNSEL DESKBOOK

Chapter 11: Foreign Law Firms Return to Chapter Index Page 71 of 73

• Full name

• Timekeeper ID (if the foreign law firm is subscribed to electronic billing, thesenumbers will be supplied 

to the foreign law firm by the FDIC’s third-party billingservice provider)

• Position or title within thefirm

• Years inpractice

• Standard hourly rate (in UScurrency)

• Percent (%)discount

• Proposed FDIC hourly rate (only in USdolars) 

The following fields of the Hourly Rate Schedule form are not required for foreign law firms: 

• Federal Tax IdentificationNumber

• State licenses column

• Minority status column

The LSA and completed Hourly Rate Schedule form must be signed by an authorized representative of the 

foreign law firm. 

An LSA is effective once both the LSA and the Hourly Rate Schedule have been signed by the appropriate FDIC 

delegated authority. The LSA is effective on the date specified in the LSA, and the term is for two years from the 

effective date, unless the Legal Division elects to terminate or extend it prior to its expiration. FDIC reserves the 

right to terminate the LSA without cause or advance notice. Absent compelling reasons, no increase in hourly 

rates incorporated in the LSA will be permitted during its term.

If, at the end of the LSA term, the foreign law firm is working on a legal referral and the LSA is not renewed, the 

LSA will continue for the sole purpose of completing existing work under the same terms and conditions until 

the earliest of the following:

• All work on outstanding legal referrals is complete;or

• A new LSA is executed;or

• FDIC exercises its right to terminate theLSA.

Continuation of the LSA is not the same as renewal of the LSA. Continuation does not permit a foreign law firm

to receive any new referrals. 

11.5 Electronic Funds TransferPayments

The FDIC, in compliance with US regulations, makes payments to vendors, including any foreign law firm that 

has an account with a US financial institution, by means of electronic funds transfer (“EFT”, AKA “wire transfer”) 

under FDIC EFT Guidelines. Payments via EFT allow faster access to funds and payment information, but can 

only be used with a US bank account. If a foreign law firm has an account with a US financial institution, the 
FDIC OUTSIDE COUNSEL DESKBOOK

Chapter 11: Foreign Law Firms Return to Chapter Index Page 72 of 73

Legal Division requests completion and submission of the Payee Information for Automatic Deposit of Payment

form. Otherwise, payments to a foreign law firm will be made via mailed check. 

11.6 LSAAmendment

An amendment to the LSA may be necessary when there has been a change in the information originally 

submitted in the application package. It is the responsibility of the foreign law firm to inform the FDIC of any 

new or changed information. If the LSA information is not current, a foreign law firm may not be able to perform 

legal services for the FDIC. Additionally, payment of Invoices may be delayed if information is not up to date. 

This information includes, but is not limited to, structural changes of the firm, as well as adding or removing 

billable individuals.

The following fields of the LSA Amendment form are not required for foreign law firms: 

• Federal Tax IdentificationNumber

• State licenses column

• Minority status column

The completed LSA Amendment form must include the effective date of the amendment and be signed by an 

authorized representative of the foreign law firm. The original LSA Amendment form should be submitted to the 

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

Virginia 22226, as well as to the Oversight Attorney for any matters the foreign law firm is presently handling. 

You may also submit Electronic LSA Amendments to LSSCG@fdic.gov. Once a request to amend the LSA has 

been approved, a copy of the LSA Amendment form, approved and signed by FDIC delegated authority, will be 

sent to the foreign law firm. A foreign law firm may not bill the FDIC for services of any individual unless and 

until the individual has been approved and included on the Hourly Rate Schedule form or the LSA Amendment 

form. 

11.7 Legal Referral

When the FDIC Legal Division retains a foreign law firm to provide services for a particular case or matter, a legal 

referral will be made. A legal referral may encompass one or more “legal matters”. For example, a legal referral 

may encompass litigation of a particular case, assistance with a subsequent appeal, and/or a related 

bankruptcy case.

When a legal referral is made, the FDIC Legal Division will send a referral letter to the foreign law firm. The 

referral letter will identify the specific services requested and the terms and conditions of the legal referral. The 

referral letter incorporates several documents, including the LSA, applicable portions of the Outside Counsel 

Deskbook, and the case plan and budget(s), which are required to be submitted by the foreign law firm and 

approved by the Legal Division prior to providing legal services on any referred matter. The referral letter, as 

well as the incorporated documents, may subsequently be amended or modified by the Legal Division. The 

Oversight Attorney sends an e-mail message to LSSCG@fdic.gov notifying LSSCG of a referral to a foreign law 

firm, so that LSSCG can ensure that any special requirements are met. 
FDIC OUTSIDE COUNSEL DESKBOOK

Chapter 11: Foreign Law Firms Return to Chapter Index Page 73 of 73

At the time a legal referral is made, a foreign law firm must confirm that no material changes have occurred that 

affect representations and conflicts certifications contained in the application package originally submitted to 

the Legal Division by the foreign law firm.

11.8 Invoice Preparation andSubmission

The Legal Division has specific policies and procedures relating to submission, processing and payment of 

invoices. A foreign law firm is required to adhere to the requirements for preparing an invoice and submitting it 

to the FDIC as set out in Chapter 8 of the Outside Counsel Deskbook. In addition to the requirements identified 

in Chapter 8, any invoices submitted by a foreign law firm must be in English and in U.S. dollars, calculated 

at the exchange rate published in the Wall Street Journal at the time the services are rendered. 

It is important that the principal members of a foreign law firm, particularly the accounting department, 

understand and adhere to the required policies, procedures and forms relating to preparation and submission 

of an Invoice. This includes Timekeeper ID numbers for every billing individual in the foreign law firm. Failure to 

properly employ these policies and procedures may result in delayed remittances from the FDIC and would be 

considered as a negative factor for possible future referrals.

11.9 Other Applicable Outside Counsel DeskbookChapters

In addition to the information specified in this chapter, the following Outside Counsel Deskbook chapters are 

also applicable to a foreign law firm: 

• Chapter 1: Representing the FDIC

• Chapter 2: Conflicts of Interest

• Chapter 6: Case Management

• Chapter 7: Case Plan and Budget

• Chapter 8: Invoice Preparation and Submission

• Chapter 9: Legal Matter Closeout

• Chapter 10: Post-Representation Responsibilities

11.10 Value Added Tax(VAT)

For issues related to the Value Added Tax (VAT) please contact the Legal Services & Special Contracts Group at 

+1 (877) 275-3342, or via email to LSSCG@fdic.gov. 

Return to Outside Counsel Home Page

APPENDIX A: Statutory Compliance 

APPENDIX B: Contacts 

APPENDIX C: Electronic Billing 

APPENDIX D: Legal Invoice Validation Criteria