Raising The Bar
John Lennon once swore he wouldn't write a song about them. Harry Houdini remarked they did tricks even he couldn't figure out. They were both talking about lawyers. And if you haven't already, you will eventually have to hire one.
An attorney can help you comply with the law, check out a business opportunity, prepare a wide array of legal documents, negotiate a deal, network with key players and, if things go awry, file or defend a lawsuit. As a practicing lawyer for more than 15 years, here's my best advice for sizing up, hiring and managing attorneys:
1. Shop early. Competence and integrity vary. Don't wait until the day before the Big Deal to try to hire the best. Compile a list of candidates. You can try the Yellow Pages, a standard legal directory such as Martindale-Hubbell Law Directory, or a referral service, perhaps through a local bar organization. Your best leads, however, will probably come from people you know and trust. Ask around your business community. Talk to other professionals.
2. Interview. Don't be intimidated by a posh office, expensive suit or condescending attitude. Make no mistake: You're a paying customer and lawyers want your dough. So ask about each attorney's experience in your industry and get references. If the area is not highly technical, you might take a chance on someone who doesn't know it well, but only if he or she seems exceptionally capable and enthusiastic. Otherwise, don't let an overconfident attorney learn the ropes at your expense.
Where attorneys went to school will tell you a lot about their intellect but not their common sense. Consider their education, but don't make it the deciding factor. There are Ivy Leaguers whom I wouldn't trust to do my photocopies and attorneys from so-called middle-tier schools who are exceedingly diligent, savvy and competent.
Conflicts of interest can be difficult to uncover, and the attorney who has one can betray you. If you're hiring an attorney in a situation where there may be a conflict of interest, ask upfront about any existing or potential conflicts with the other side. Keep your eyes open throughout your relationship, especially whenever your lawyer seems less than 100 percent committed to your position. And if your attorney wants to proceed based on his or her disclosure of a conflict of interest and your written consent, think twice. A conflict of interest doesn't go away just because it's out in the open.
3. Reflect and check. Don't hire on the spot. Consider the person you just met. Did he or she treat you with respect? After all, if the attorney is rude when courting, the situation will only get worse after you exchange vows. How well did the attorney communicate? A good lawyer should be able to discern and respect your priorities as well as explain legal matters in plain English; otherwise you won't be able to make informed decisions. Consider your prospective attorney's personal characteristics and match his or her temperament to the job at hand. Do you need a diplomat or a warrior? Don't ignore your gut feelings. Was the lawyer too glib, too aggressive or too timid? Is there anything about the lawyer's office, appearance or demeanor that troubles you?
Take what you've learned and do some additional checking. Verify credentials. See what the State Bar can tell you. Call any references the attorney has given you. Better still, try to contact references that weren't volunteered. These are often the most telling.
4. Negotiate. Cutting a deal with your lawyerbegins by being upfront about all your expectations. Spell out the services you need. If you're hiring a firm and want a particular attorney who can handle your work, say so. If you're looking for a lawyer to help you find financing or plug you in with key players, speak up. If you're going to a firm for strategic business advice, make sure it's willing and able to give it.
Many lawyers will discount or negotiate their fees, but you have to ask. Basically, there are three ways you can be billed.
Under an hourly agreement, lawyers simply multiply the time spent on your legal matter by their hourly rate. It's innately fair, provided your attorney doesn't drag things out to pump up the fee. To protect yourself, make sure you receive (and review) invoices that detail how time was spent. You can even insist that your attorney get your approval before exceeding a specific dollar limit. Also, find out whether your lawyer uses minimum billing units, such as 15-minute increments. You shouldn't be billed a quarter-hour for a 90-second phone call.
In a competitive market, flat fees work well with standard services like a basic incorporation. However, a cap may hurt you if your attorney can't accurately estimate how long your matter will take. In that case, the lawyer will probably quote high to protect himself or herself and hope to receive a windfall. Thus, don't agree to a flat fee until the lawyer has explained how it was calculated. Also, hold back some money to make sure your lawyer finishes what he or she started.
With percentages or contingencies, attorneys are thinking like entrepreneurs, hoping to share (richly) in the money they bring in. One-third contingencies are common in litigation. In deal-making, this fee structure works best when your lawyer is instrumental in making the deal or adds value to it. Estimate what the services might cost you on an hourly basis. If you opt for a percentage, be specific about exactly what the percentage is based on and when it becomes payable. Also, never forget the conflict of interest inherent here: If the deal doesn't close, the lawyer gets nothing. Don't let your lawyer put his or her interests before your own.
Whatever your arrangement, your lawyer will probably ask you to sign an engagement letter. Make sure it accurately reflects what you agreed to and that you understand it completely before you sign it. If your lawyer doesn't prepare one, take the initiative and get something in writing anyway.
5. Utilize their help. Now that you've put an attorney on your payroll, use him or her wisely. Here are some tips for managing this relationship:
- Get your lawyer involved early. A five-minute phone call can prevent five years of litigation. Your well-intentioned action (as a layperson) can hamstring you later. Make it a habit to check with your attorney first.
- Don't waste time. If your lawyer is good, he or she is probably in demand. Have everything ready before your phone calls and meetings--it's more efficient and will save you money.
- Be candid. Don't withhold or distort information because you assume it's insignificant. Describe what you'd like to achieve and encourage your lawyer's participation, but don't tell your attorney how to do the job. The attorney may lay out better options than you could have imagined.
- Put your instructions in writing. Every attorney takes the written word far more seriously than a verbal communiquÃ© because they know your letters could end up as the smoking gun in a malpractice lawsuit. Conversely, read all correspondence from your lawyer carefully and correct any inaccuracies promptly and in writing.
- Don't nickel-and-dime your lawyer. If the bill is fair, accept it and pay it on time. It's the best way to say "thank you" for a job well done.
Marc Diener is an attorney and author of Deal Power: 6 Foolproof Steps to Making Deals of Any Size (Owl Books/Henry Holt). This article contains general information only. If you are concerned about how these issues might affect you, seek independent counsel.