No Such Thing as Free Advice – Consultants Part 2

Migrated from eDJGroupInc.com. Author: Greg Buckles. Published: 2010-02-26 09:00:38  In Consultants Part 1, I explored the different kinds of eDiscovery related consultants and how they came to be from the mid 1990’s to today. No we can look at the ethical issues facing subject matter experts in their different roles. Lawyers, accountants and physicians and other traditional advisory experts work within a well defined framework of legal and ethical standards that define their fiduciary responsibilities to their clients. There are no such regulatory or standards bodies governing eDiscovery experts as yet. In part, this is because such consultants are expected to deliver their advice directly to counsel, who should make the final legal determination.This works for project managers, forensic experts and other consultants working on a specific matter, but the waters get a bit muddied as eDiscovery moves from an ad-hoc matter driven model to a standardized part of the corporate business process. Legal delivers a set of requirements to IT (hopefully) and IT initiates a sales RFP cycle to select software that will meet everyone’s needs. IT is driving the purchase process and they are not discovery experts. The software providers graciously volunteer consultants to answer questions, help define process and otherwise grease the skids to make the sale. The conflict arises when you stop to consider how the consultants are compensated. IT does not want to pay the going rate for a real consultant when they are about to make a six to seven figure purchase.Real experts do not provide advice for free, at least not for long if they want to make a living. So how are most consultants compensated? Some have a small base salary and make the majority of their compensation based on software or service sales. These are effectively sales reps in sheep’s clothing. They face brutal pressure to land the sale and move on fast. The more traditional consulting shops like FTI Consulting, Accenture and Huron Consulting follow the more traditional hourly billable model, but FTI and Huron have both added software and service offerings. So again, we see potential conflicts of interest developing in the big firms. Even the big three audit houses have either spun off service arms or have preferred partner referral arrangements in place that derive revenue from the secondary software or service sales.So how do you protect yourself against biased advice? You start by becoming an educated consumer. You do not have to be an eDiscovery expert to understand the basic types of players, offerings, platforms and licensing models in the eDiscovery market. It either takes some solid research (and remember to pay attention to who paid for the white papers or webinars) or it takes a couple hours from an independent industry analyst or consultant. There are not a lot of true independents in the market, but they can be found. The next step is to demand full disclosure of relationships and compensation models from anyone whom is offering you advice or claiming to provide best practice. Seth Rowland’s ‘Sales vs Consulting – The Cost of Independence’ closes with an in depth disclosure of relationships over his extensive career. This kind of information is important to understand the perspective and coverage of your consultant.No consultant is an expert on everything, as much as we would love for the client’s to think so. I have worked with Symantec’s Enterprise Vault archive platform for more than 10 years and was the Product Manager for their Discovery Accelerator for a time. This history makes me an expert in the system’s capabilities and limitations. It is important that a potential client know about my expertise and my potential bias so that they can understand my perspective. As it happens, I have consulted on most of the dominant enterprise archiving platforms and have developed a broad understanding and appreciation for the spectrum of archiving technologies. But unless you ask hard questions up front, you will not know where your consultant’s expertise stops and whether they have any incentives to favor a particular solution or provider. Almost every software or service provider has referral partner programs that pay 10-25% back to the referring party. Many have tried to put rebate programs or other revenue sharing programs in place with law firms, but the majority of firms understand basic conflict of interest. With the recent economic downturn, many excellent consultants have sought refuge with providers, especially in the new ‘sales support’ roles being promoted by the large software companies. Do not reject biased advice out of hand, but understand that unless you are paying for that advice and have a full disclosure of all potential bias, then you are getting what you pay for.