Selecting the Right Attorney
The best remedy you have for dealing with your attorney's mistakes is to reduce the risks that lead to them. The biggest risk creator in your life as a client may be your attorney himself. We all make mistakes. A typical lawyer makes at least a mistake-a-day. However, most mistakes don't cause serious damages. But correcting them takes time, takes good-will from opposing counsel or a judge who wants to help. If that good-will isn't present , "little" mistakes can become huge damages.
So you must select the right attorney to start with if you are to reduce the risk of horrific damages. Selecting the right attorney is really about selecting the right person. Yet this isn't so easy. After all, 50% of all marriages don't work and we usually put our best into those promises.
Fortunately for you law schools have been graduating 42,000 new lawyers a year. The number of lawyers practicing in the United States over 1 million today now out numbers physicians (approximately 813,000) by (20%). In the current economy, you are in a position to bargain for your full rights as a client and to get in writing your attorney's obligations. Here are some subject areas to think about before you start looking for the right attorney and while you are putting together the right retainer agreement for you.
SPECIALIZATION: Be sure in your own mind why you want to retain an attorney. What do you want your lawyer to do? Represent you in a divorce? Handle a personal injury? Protect your interests in a real estate transaction? Prosecute a business dispute? Get compensation for an injury that happened while receiving health care? Draft a will? Help you adopt a child? Prosecute a claim based on an injury that was caused by a manufactured product? Set up a corporation? Make immigration decisions happen? Handle a bankruptcy petition? Take care of an employment dispute?
Every lawyer you interview is licensed to do all of this work. Unlike the practice of medicine, every lawyer is still allowed to practice in all of these specialties at the same time. And if you have a check to write, most lawyers will step up to do all of this work. Right then you are creating your own substantial risk.
Law has become so complicated and specialized, it is not possible for an attorney to work effectively in more than one or two of these areas of specialization with any competence (unless you are paying them to "go back to law school"). So be sure the attorney you select has at least 10-15 years of full-time experience in the area of specialization you need. Keep in mind that you will pay more for a specialist by the hour. But the number of hours your specialist will be required to work is greatly reduced because of his specialized knowledge.
HUMANITY: After you've located the proposed specialty your "case" falls under, and then located several specialists to interview, the next most important decision is to select the right "personality" to work for you. As indicated above, it's not unlike getting married. Once working for you, there are certain legal and fiduciary obligations that never go away, or better said, last until you die. For example, your lawyer can't disclose your communications or enter a new relationship in conflict with yours. There is a permanent almost like-life-time contract between the two of you as attorney and client. Simply said, the attorney-client relationship is loaded with implicit and explicit terms that you must understand and carefully consider. If you want to control your life after you've had a relationship with a lawyer, you've got to understand all of these doctrines! Or at least the big ones that might exist and might be used against you.
For four centuries lawyers have been working on their own behalf to protect their interests in the attorney-client relationship. These doctrines are built in to your state's common law (decisions made by judge's who, obviously are all lawyers). These decisions inform the course of work undertaken by your attorney.
You must be sure they inform the decisions being made by you.
With the application of these doctrines being made in favor of your lawyer, and with far more skill than you can ever exercise, the foothold you must seek is an attorney who is not just competent, but honest. So just like selecting a spouse, you must find an attorney who more than anything else will be truthful with you. Even when loyalty wanes.
So how do you figure this out for sure? Your guts. Your instinct. You can feel it if someone is hustling you; lying to you. You sort of know it when someone is over his or her head; or in trouble with drugs. You've got to use those instincts, even knowing they can be wrong. Your centuries of ancestors haven't survived to reproduce by accident. Your brain and natural instincts must be fully employed to select the right attorney.
Ask for three references. Check them out. Get the names of former clients who have been successfully served by your prospective lawyer. Talk to them.
Carefully scrutinize the law office environment of your prospective attorney while you collect this information. Discount beauty. Pay attention to all signs of disorganization and phoniness. If there are any symbols of religion, bolt. Above all, remember this lawyer and this firm represents you in the work you require. And ultimately, with you informed and in control of the relationship, you must be totally respected by your lawyer as the events neither of you can predict will certainly unfold. Otherwise you have the wrong lawyer.
INSURANCE: One of the toughest and most courageous things you must do when interviewing a prospective attorney is to ask if the firm has malpractice insurance. You see, one of the dirtiest secrets in each state's bar is that only some 50% of the attorneys in the state carry insurance to protect you from their mistakes. Insurance is expensive. But it spreads the risks of mistakes across every lawyer who buys a policy. Yet, no state has decided to require malpractice insurance as a condition of being licensed.
Compensation for the attorney's mistake is paid to you by the insurer. If there is no insurance, the attorney must pay you personally. If he has no money, or has made himself judgement-proof (for example, by transferring his house to a spouse), you can't collect from him. Many attorneys who make themselves judgement proof also plan to represent themselves in court, if you sue them for their mistakes. Can you imagine a worse nightmare? Being able to use everything he or she has collected on you.
So you must ask this question about insurance, to "screen out" an attorney who thinks like this. Don't ever forget, only half of the practicing attorney's buy insurance! And many of those who do, only buy the insurance for the unlimited defense costs it provides.
Here's an idea that might make "popping the question" easier to do. Lawyers now expect to be interviewed by prospective clients just as they will interview you before becoming your attorney. Click here for a list of questions to take with you. Tell the attorney your interviewing that you read a web site that suggested you had to ask about insurance. Hold up your list of questions.
This issue is so important and so tricky that you can't just take "yes" as an answer. Ask how much coverage and the amount of the deductible. You want more coverage than the value of your case. And you want a very small deductible or you might get your attorney defending himself pro se against your claim despite the coverage for big mistakes.
Insist that the answer the attorney gives you to those two questions be written into your retainer agreement. It is a very serious ethical violation, and in some states a crime, for a lawyer to lie to you. Also be sure there is a term in your retainer agreement that requires your lawyer to inform you, in writing, if the amount of coverage or deductible changes.
WHERE TO GET A NAME AND WHERE NOT TO: First of all, the listing of attorneys in the yellow pages is about the worst place to start your search for the right lawyer. Simply said, all attorneys are not equal as the lines in the yellow pages implies. And the size of the yellow page ad only reflects how much an attorney is willing to spend on marketing. Marketing has no relationship to competence.
A referral service, one approved by the American Bar Association (ABA), is not a bad place to start. However, ABA approval only assures that the referred attorney has malpractice insurance and will participate in fee arbitration or mediation if there is a dispute with you. Some bar association referral services have prescribed practice standards for the area of law the lawyer is in. You should specifically ask if the referral service you've contacted does so, and whether it enforces them.
But don't ever lose sight of this fact: some local bar referral services function as a "perk" for the newly elected president of the bar association. The best cases come to him. And be sure there are no attorneys to whom legal malpractice cases are referred.
Probably the best way to identify an attorney is through someone you know and trust; someone you know for sure is not getting a referral fee. Find out just what the attorney did for your friend, and why he or she thinks the attorney is competent and honest. Of course, if your friend recommends the attorney just because he returned phone calls, while important, it's not enough of a recommendation. Also, if the recommended attorney handled a products liability case for your friend, that probably won't do you much good if you're looking for a matrimonial lawyer. At the core, find out if your friend had the same sort of legal problem or received the same kind of legal services you want. And be sure the overall experience was personally satisfying. It can't be just a good outcome. Rather you must have evidence of an open, honest and trusting relationship with that attorney. You see in litigation, someone usually loses. Or as lazy or greedy attorneys often say: both sides always lose.
Get several names and interview each attorney with the greatest care you have ever exercised. The rest of your life is on the line.
NEGOTIATING THE FEE/RETAINER AGREEMENT: Deciding how to pay for legal service and finding the money to do it may be the most harrowing decision you face. Keep in mind that there are four different ways to pay your lawyer. They are as follows:
- Contingent Fee. Here your attorney will take his payment typically one-third of your recovery, from the ultimate settlement or judgement. He gets nothing, and neither do you, if he loses. You will be expected to pay for all costs, including court fees, deposition costs, copying costs, investigation costs and the costs of experts along the way. (Click here for more information on the contingent fee).
- An Hourly Fee. Here, you pay for your legal services at some agreed upon hourly rate as you go along. As with a contingent agreement, costs are also paid by you as your case moves along. (Click here for more information on the hourly fee).
- A Flat Fee. With this option, your attorney provides a specific service for an agreed upon amount of money. Out of pocket costs made by your attorney may or may not be included in the flat fee. (Click here for more information on the flat fee).
- Some Mix of a Contingent, Hourly or Flat Fee. This option is becoming something of a trend in response to the negative perceptions of attorney's billing practices, Here you combine two or more of the payment structures set out above to design a unique fee schedule with your attorney for your case. For example you might pay an hourly fee up to a certain amount and then your attorney continues the work on a contingent hourly basis.
For a list of legal doctrines bearing on the attorney-client relationship, click here. Read about these doctriines in either Black's Law Dictionary or Legal Malpractice by Mallen & Smith.
For a list of legal specialties, click here.
You won't believe this but you must go to a special place, run by the state judicial system to complain about an attoney. Most states consumer protection statutes do not apply to attorneys. while it is preseted publicly as a client's consumer rights agency, it is first of all designed to protect the reputation of the attorney's. Not surprising, it is handled in secret. And it's run by attoneys from the bottom to the top. Click haere to obtain the telephone number for you states Disciplinary Committee or Grievance Commitee.
