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CLIENTS' TEN COMMANDMENTS
OF RETAINING COUNSEL
Clients will need a lawyer at some point in their life, whether in the isolated instance where litigation has raised its ugly head, where estate planning is required when aging creeps up, or when entering into a new business venture or selling an existing one. Even sophisticated business people who are routine consumers of legal services may decide to make a change or need a lawyer in an area not previously entered. Obviously, the seriousness of the legal venture will dictate the extent of the investigation and search, from the simple need to review a real estate contract to a multi-million dollar lawsuit.
Lawyers have been advertising for about 40 years now. Lawyer advertising, from print to radio to television to internet, all has one goal – selling the lawyer’s services. Any advertisement from real estate to breakfast food to hair spray to professional services will suggest that the subject good or service is the best. Some lawyer advertising is openly misleading but even where it is not, the advertising is intended to convince potential clients that the lawyer doing the advertising is the best choice for your case. Since virtually every ad would have you believe this, not all can be true. In fact, lawyers advertise in areas where they have minimal or inadequate expertise or experience, and this can be seen in most lawyer websites. If your case is worth trying to get the best lawyer for the case, it is worth the effort to sift through the advertising and claims down to the reality. Once you have located a competent lawyer, clients need help in navigating through fee issues, particularly where many lawyers would prefer to push these under the rug.
These Ten Commandments apply to each such search for legal talent. The following are some general guidelines for identifying, investigating, interviewing and hiring an attorney with a reasonable prospect for a successful result and a decent professional relationship.
1. Never select a lawyer (solely) from an advertisement, and never from merely a print or electronic media ad. Seek out personal referrals and check references. Contact friends who have hired lawyers before; contact lawyers you know regardless of whether they practice in the area of your legal concern. Try to get your sources’ impressions of various lawyers. Identify more than one potential lawyer.
2. Always speak with the proposed lawyers first by telephone – discuss your problem simply and ask about possible options. Develop an initial impression before making any appointment. Compare your gut feeling for each lawyer you speak with.
3. Investigate the proposed lawyer thoroughly:
a. Google the lawyer
b. Investigate his/her website.
c. Check the bar’s website for discipline.
d. Identify the lawyer’s professional writings, if any.
e. Learn all you can – develop an initial impression, favorable or not favorable.
4. Identify the manner in which the lawyer will charge you for services: e.g. hourly, flat fee, or contingency; learn if there is a charge for the initial consultation, before any initial meeting.
5. At the initial intake interview, your role is to learn all you can about this lawyer, in order to determine if the lawyer is the right person to fill your need. The purpose of the interview is to select or deselect this lawyer. At the end, chose the lawyer or look further. Always go with your instincts. If the relationship does not feel right, it probably will not go right. Make another appointment and start over.
6. Try to learn how the lawyer intends to approach your legal situation.
a. If potential litigation as a plaintiff, do I really have a case
b. If potential litigation as a defendant, do I have defenses and if so, what is a rough cost of defending the claim?
c. If a business transaction, what is the best course of action that the lawyer can recommend and compare it with other alternatives.
d. If an estate planning issue, what are the potential alternatives, with tax implications and the cost of drafting for each alternative.
e. The point here is to determine if the lawyer seems to have a good handle on the problem and the various potential solutions with the costs of each.
7. Force the lawyer to discuss fee arrangements in detail and the fee agreement. Make sure that the fee agreement is discussed in detail in person.
a. If hourly, what are the rates, who are the billing timekeepers, what types of work is charged for, can the rates be increased and under what conditions?
b. If a flat fee, what specifically is and is not covered? If estate planning, for instance, what is covered and what other documents like living wills, directives to physicians, etc are an extra charge.
c. If a contingency fee arrangement, what are the details? What is the scope of the work, at what point has the lawyer performed and entitled to the fee, what happens in terms of court-awarded fees such as in a Consumer Protection Act claim, and who is responsible for costs.
8. Ask the attorney all of the questions you have about the fee agreement and sign no fee agreement until they are in fact all answered, to your satisfaction. In fact, it is best to take the agreement home and read it thoroughly, even after it has been discussed. Feel free to have another lawyer read and advise on the fee agreement. Sign the agreement only after you fully understand it and agree to be bound by every term.
9. Be prepared to be an active and inquisitive client. Ask questions frequently, and insist on straight answers. This is your case, and take personal responsibility for participating as an active partner with your attorney in the process. In this process, you must take an active pat in order to have a true say in the end result.
10. Remember when negotiating fee arrangements – in the end, you will almost always get what you paid for. Don’t try to drive to hard a bargain.