More and more, organizations are reaching out to ask about pre-incident retainers – securing us, in advance, to help in the event of a cyber incident. This is a positive and important cyber-readiness step. Here, we provide some background and key considerations.
The role of legal counsel in incident response
Our value goes beyond providing legal opinions. Major cyber incidents are associated with significant business and legal risks – risks that are the regular domain of lawyers. Lawyers who are experienced in incident response can digest limited facts and evidence under pressure, identify how they translate into organizational risk and give clear and decisive advice to help organizations optimize their response. Even in-house teams who are very prepared can benefit from the assistance of experienced outside legal counsel immersed in incident response. Incident response lawyers know the present threat and stakeholder environment, have knowledge of the key stakeholders and issues, and can often provide reliable intelligence. We are careful to respect the line between providing strategic advice (our role) and making decisions (our clients’ role), but our clients benefit most from our services when they rely on us broadly, and integrate us into their incident response teams as legal and strategic advisors.
Our large national team has robust incident response capacity. We support our team members through collaboration and knowledge management, and all team members work on incident response files, but also on a wide range of non-urgent work. Therefore, we do not need to charge our clients a fixed fee for being on retainer. Our “retainer” is essentially a promise to respond – immediately – with a qualified team of lawyers led by a partner who will always remain engaged.
The importance of the team
On major incidents, we always work with technical vendors who specialize in remediation, forensics and threat actor interaction and intelligence. Given the importance of privilege, we are typically asked to assume responsibility for instructing them. To make complicated law simple: if we engage technical advisors to work arm-and-arm with us, the combined advice is arguably all protected as privileged.
Given this arm-and-arm service delivery model, the lawyer-technical advisor relationship must be strong. Organizations who are working up their pre-incident retainers should consider this important point. Retain legal counsel and technical vendors who trust each other and are confident about their ability to work with each other. As legal counsel, we are “vendor agnostic.” We nonetheless work regularly with trusted vendors with whom we have honed our joint service delivery though experience. We can adjust to new vendors, especially when a client has a strong preference, but we are often asked to opine on who is good and who might be a best fit for a particular organization.
The first 24 hours
Our clients that approach us about pre-incident retainers are understandably anxious about getting their incident response off the ground. We tell them that the first priority is to prepare containment playbooks and to practice different containment scenarios.
Engaging the vendor team - legal and technical together - comes next. The good news for organizations who pre-retain their vendors is that they will save about six to 12 hours of time that others burn finding and contracting with available vendors. In an incident scenario, pre-retained vendors should still provide a statement of work with a budget estimate, but this will be a much easier document to negotiate than a master services agreement that is entered into in the pre-incident retainer process.
As for who to call first, it doesn’t matter! Just make sure you call the whole team. Call all the technical vendors and legal counsel and arrange a scoping call – a chance to convey the basic incident facts and receive preliminary advice. It is ideal that everyone participate, but the vendor responsible for remediation has the leading role out of the gate. Everyone else – legal included – can catch up, and the relationship between counsel and technical vendors is memorialized coming out of the scoping call in any event.
You’ve retained your team. Now what?
As we have said, written incident response plans (often required by regulators) are a good means of documenting learning and putting information at hand, but ought not to be viewed as the foundation of readiness. Organizations should meet regularly with their counsel and their vendors to discuss and learn. Break down the incident work streams and other aspects of the incident response process and have periodic huddles with the team. Use your counsel and vendors to conduct a tabletop exercise, on at least an annual basis.
Unlike law firms, technical incident response vendors typically charge fixed fee annual retainers to support their response capacity. Most will also allow their clients to recover all or some of this investment by using the retainer to purchase pre-incident services – the facilitation of table top exercises, for example. Organizations should take advantage of such services, but should also involve their legal counsel. The hourly fees will be modest, and the benefit of involving legal counsel will outweigh the cost. Our main point in this article is that building your outside and inside teams and preparing them to function well together is an essential task.
With that, we will leave you to work on your critical cyber team building and cyber readiness endeavour. We would be pleased to speak with you about it, and about how BLG can work with you and other third-parties so you are ready to perform optimally when confronted with a major cyber incident.