My Turn: An Attorney's Advice on How to Select and Retain Counsel to Effectively Represent You

My Turn: An Attorney's Advice on How to
Select and Retain Counsel to Effectively Represent You

By Stephen D. Pahl, Esq.
Pahl & McCay
225 West Santa Clara Street
Suite 1500
San Jose, California 95113
408/286-5100 (phone); 408/286-5722 (fax)

During my professional life I have been bombarded with articles, literature and even books related to the topic of what to look for in hiring a lawyer. Some of these are quite unbiased, such as "How to Hire a Lawyer without getting Screwed," while others are more benign and less inflammatory in their thesis. Having been subjected to all these commentators, many of which are either silly or truly misleading, I would like to take this opportunity to present an alternative process for the retention and collaboration with a lawyer; one that can be rewarding, challenging, and in some matters even educational.

Rule 1. For better or worse, you are essentially entering into a de facto partnership. Hire someone you personally feel comfortable with. The selection of counsel generally is the result of some immediate legal need or problem and may very well be related to a stressful situation. Many clients visit an attorney's office and judge the professional based on their review of the diplomas on the wall, the books lining the office, the size of the reception area, or the size of the desk. You are about to trust an extremely important aspect of your life to this individual and only if you generally like and trust your counselor will the relationship be successful. Keep interviewing until you find the right person.

Rule 2. Lay out your expectations and your requirements up front. Many clients ignore their personal expectations and leave this very important aspect of the relationship to the attorney and then feel disappointed when their needs are not met. If you want every piece of paper related to your case sent to you or to be telephoned about each twist or turn in the project, let your attorney know; if you want to follow a "scorched earth" litigation policy, give that instruction; and if you want your attorney's "business advice," ask. It is unfortunate that many truly outgoing people refuse to "direct" their legal representative; with the conclusion being their attorney "did not do what they wanted." I have grown fond of the statement, which remains true to this day: "The attorney/client relationship is one of master and servant, and I understand which role I am to assume." You need to instruct your attorney as to "how" you want the matter handled. Examples include not following every possible lead or taking every deposition with the attendant cost savings, following a strategy of a quick resolution or settlement with the potentiality of not gaining or recovering all that was desired or might be available with a more aggressive posture, or putting great effort into early actions with the expectation that the other side will seek an early resolution to avoid attendant expenses.

Rule 3. Develop an early understanding of your attorney's billing practices and payment expectations. Don't be embarrassed to inquire how the law firm bills and expects payment. I would suggest that you never allow a firm to bill less than once monthly, and with detailed invoices reflecting the work performed and the amount charged. An invoice properly prepared should read almost like a progress report on the matter and provide enough information for you to discuss intelligently any concerns you might have about the project. Don't hesitate to provide your feelings about the lawyer using a more junior associate for a significant part of the project; such an allocation can significantly reduce your legal costs by having the lower cost attorney complete the more routine discovery or pleadings, attend some court proceedings, or draft underlying documents, using the senior attorney for overall strategy, negotiation or perhaps trial as appropriate. I believe that each task should be handled by the most junior attorney available to competently handle the particular project or task consistent with high quality and cost savings to the client. In some instances it will be cheaper for the more senior attorney to do a quick project themselves at a higher rate than to explain the project to a more junior attorney with the resulting "ramp up" time.

The rule also mandates that payment of invoices either be timely or that explicit understandings be reached between attorney and client as to time payments, progress payments, and the like. It is simply unfair to expect superior service on your or the court's schedule and then to delay or withhold payment.

Another item to keep in mind. Some people like contingent fees because there is no money out of their pocket and all of the risk is on the attorney. Remember that this relationship clearly creates a conflict of interest between attorney and client that cannot be avoided. The client has no economic interest in settling the conflict and not going to trial; the attorney clearly does and in my experience, that's why so many of these cases resolve to the detriment of the client. There must be some reason why lawyers are willing to take these cases, even placing yellow page advertisements for them. They can be very profitable; sometimes however at your expense.

Rule 4. Your attorney is a counselor and advocate and not a dictator. Listen to your attorney’s advice and recommendations and then provide the direction you want them to follow. Many clients either believe that they abrogate this power upon appointment of counsel or are willing to blindly follow their lawyer, sometimes to their significant detriment. Only you know fully what your goals are and while they should be conveyed to counsel as completely as possible in order to obtain the best counsel, a good relationship will be furthered by the client maintaining the responsibility for directing the project or litigation.

Rule 5. Allow your attorney to be a "member of the team"; incorporating them into your company in spirit. Many of our clients have effectively used our firm in this manner and as such, I have developed the habit of referring some of the real estate projects I work on as "my" apartment complex, office building, etc. Once however when I was so personal in my referral, I was reprimanded by a Vice-President of the company that it was "their" project and that I was "merely" an attorney. Somehow I never felt the closeness again with the client and remained distant to any impact I could provide regarding further assignments. Allow all your personnel, from each of your company’s employees, vendors and yes, even attorneys, to develop a feeling that it is "their" project. What you receive will be worthy of the effort. Allowing the professional to "join your team" is a great strategy.

Rule 6. Hire the right size firm or attorney. Not surprisingly, attorneys vary not only in specialization, but also in the types or size of clients they work best with. I usually recommend that a client seek a "general counsel" or an attorney to carry on a working relationship that constitutes at least two percent but not more than ten percent of that attorney's or firm's revenue. The reason for the upper limit is obvious. However the bottom number is of greater importance. You want to be a decent-sized fish in that firm’s pond and receive prompt attention when you call for counsel. The larger the firm, the smaller the percentage of the revenue you constitute and, potentially, the less attention you receive. Human nature dictates that a businessperson handle the more important ("larger") accounts first. You want to be first or at least near the top. If your legal needs are small, either consider utilizing a smaller firm or a sole practitioner or select one attorney in a larger firm and provide to him or her enough projects that you are “important” to that particular attorney.

Rule 7. Don't permit your attorney to ignore you; and treat your attorney with similar respect. There is simply no excuse for a professional to allow phone calls and letters to go unreturned and unanswered. If I am out of town or in trial and cannot return calls within the same or next business day, my secretary will attempt to field the situation to see if an alternative can be found; a partner taking the call, telephoning in the evening at home, or perhaps delaying for several days until things clear up. Each of our clients is at times provided my home telephone number simply because I would rather that they call than lose sleep over a situation that could be resolved or reduced with a short conversation. In my experience, very few clients over the years have abused that privilege I remain proud to offer that service. Conversely, if your attorney calls, ignoring the message can only lead to a breakdown of the relationship and the need, eventually, to seek alternative counsel.

Rule 8. Seek out an attorney who can provide "real world" counsel as well as legal analysis. So many attorneys can respond to questions of law or procedure, but fail to apply that knowledge to the real world problem or situation. Look for a professional who has an ability to understand your business, is interested in both you and your industry, and can apply law to the specific areas of concern. When interviewing counsel in other geographic areas for our clients, I will sometimes intentionally use terms of art or industry slang to see if the attorney really knows the industry. When you can use those terms with clients (e.g. a lending relationship to a banker is often referred to as a "credit"), the client gains confidence with the attorney and will feel more comfortable with the relationship.

Rule 9. Buy what you can afford. While everyone wants a Mercedes or a BMW, some people can't afford those vehicles and in certain instances they're not appropriate for the task. In the same way, hire the level of attorney you need considering your project. A simple commercial collection case requires substantially less experience than a purchase and sale of a large apartment complex or the financing of the project through a "conduit" loan. For this reason, the hiring of a larger firm with different levels of attorneys providing varied experience and skills can be beneficial if legal needs run a wide gamut of areas. By providing "one stop shopping," a client does not have to go through the process of re-interviewing for each project or assignment. Our firm is committed to providing a general commercial practice with appropriate talent to cover the necessary areas that we serve, but there are additional areas we cannot accommodate. For these practice areas, we maintain close working relationships with attorneys specializing in those fields and because we refer a significant number of matters to each of them each year, they in turn treat our clients as if they were one of their own. A negative report back to us by a referred client can have future repercussions on further referrals to that firm. Ask your counsel about their abilities and if you have needs that they cannot fulfill, inquire whether they can serve as your "general counsel" to obtain legal talent on your behalf to accommodate your needs.

Rule 10. When you lose confidence in your counsel, it is time to let the relationship go and start anew. Nothing is worse than a mutual relationship where neither side trusts or has confidence in the other. In this instance, you need to return to Rule 1 with my best wishes and good luck.