You and Your Lawyer
In these troubled times, more and more individuals and small businesses will consult a lawyer, some for the first time. When you have an initial interview with a lawyer you can expect to be given a statement of your rights as a client, similar to a patient’s bill of rights in hospitals. But, there is no reciprocal “attorneys’ rights” document. Here’s the dialogue you should have with your lawyer for a mutually satisfactory professional relationship.
Client: How much will this cost me? I know I am entitled to an estimate of total expenses, but how and when will I be billed? Will I be asked for payment upfront (a “retainer”)? What if my lawyer stops working for me? Will I be entitled to my money back?
Attorney: I am entitled to be paid for my services. I am aware, however, that you may not understand how lawyers charge for their time. I will explain my fee structure clearly, whether I charge a flat fee, bill by the hour or agree to a “contingency” fee (payment dependent on results). I will also go over what my retainer covers, if I think it’s appropriate to charge one. I will explain that the initial retainer is only a down payment that I will hold it “in escrow,” and that I will use that retainer to pay myself for the hours I spend. Once the retainer is spent, I will render another bill and will keep doing so. If we agree on a flat fee, I will explain what it will cover and disclose that it may not be sufficient for all the services that might ultimately be needed. In my initial consultation with a new client, I will outline the scope of the work I intend to perform, but I will reserve my right to charge more when I have to do more work.
Note: A conversation about hourly billing needs to take place. Most clients understand that plumbers charge by the hour; they don’t understand why lawyers charge the same way. The attorney should explain that a more expensive, presumably more experienced, lawyer may do the job faster than a lawyer who charges less by the hour but needs more hours, so hourly billing may actually be fairer to both lawyer and client. Don’t wait to negotiate on the fee until the final bill is rendered. The appropriate time to discuss the fee is in the beginning of the relationship, at the initial consultation, and not after the work is done.
Client: I need you to be available to me and to keep me informed. I expect you to answer my questions and to give me advice. I am entitled to have my telephone calls and correspondence answered promptly. I am relying on you as my advocate and my surrogate. I have the absolute right to have my interests represented vigorously, with your undivided attention and focus, and to the best of your ability.
Although I would like you to be patient with me and have a sympathetic ear, I know you’re not my mommy and you don’t practice psychotherapy. I respect your time. I do understand that you cannot work for anyone else while you are devoting yourself to my matter. I will keep appointments, or cancel as far in advance as possible.
Attorney: I know you’re stressed. I may be stressed too, but my job is to give every client the care, attention, sensitivity and expertise that his matter requires. I will not burden you with my migraine or my daughter’s dentist appointment. I will never discuss another client or complain about the volume of my work! I know I have no excuse not to return a phone call or be late for an appointment. And you should know that I have an ethical obligation to be prompt for court appearances, filing papers, responding to opposing counsel. If I hold money for you or in connection with your case, I will comply fully with the “escrow” agreement and release money only with proper authorization.
Note: Lawyers have the legal authority to hold funds in trust (“escrow”) and any hanky-panky with that money is severely punished. Lawyers who “borrow” money from their escrow accounts wind up “practicing law” behind bars, without a license, and for free.
Client: I am told that I have the right to competent counsel, to vigorous representation, to privacy and confidentiality. I acknowledge that I have an obligation to you, as well, to be honest and forthcoming with my information, and ready to provide whatever supporting papers and documents that I have or can obtain. If it would be helpful to you, and money-saving for me, I will prepare a written narrative in advance of our initial consultation. I will try to organize and bring my papers, photos, tax returns and written questions. I will try to answer your questions candidly.
Attorney: You can be completely comfortable answering my questions and telling me your story. I cannot divulge your confidences, and any breach on my part could cost me my license. That’s why I’m cautioning you; if you insist on bringing a friend to our meetings, you risk waiving the attorney-client privilege. Don’t worry about my partners, associates or paralegals listening in; we are all bound by the same duty of confidentiality. Of course, there are things I don’t want to know. I may have to stop you in mid-sentence, or even mid-thought!
Note: Lawyers are trained to take a position and support it. When the attorney presents the arguments of “the other side,” she is not sympathizing with your adversary or counseling you to give in. She is anticipating the adversary’s arguments in order to prepare an appropriate and compelling response, whether it’s a compromise or a counterargument. Your lawyer’s job is to represent your interests, and you should be completely confident at all times that she is on your side.
Client: What if I’m not happy with the result? I know you don’t have a crystal ball, but I wish you could predict a jury verdict, or judge’s decision with some degree of certainty! I will listen to your analysis of the possible outcomes. I will try to understand that I may have to compromise. And I will try not to accuse you of not being a forceful and committed advocate.
Attorney: I recognize that I am hired help. My training prepares me to do the talking and being listened to. But I know I am only an agent. My job is to give advice, but you may choose to ignore my wisdom. That’s the client’s right and privilege. Although I have a professional obligation to warn you of the consequences and ramifications of your decision, I cannot impose my advice on you. If I am afraid that not taking my advice will have severe negative consequences, I will ask you to sign a letter stating that you have chosen not to take my advice, or I may offer to withdraw from the matter. But you must understand that I cannot predict or guarantee results.
Whatever the lawyer advises, ultimately the decision to settle, to litigate or to defend is the client’s. You certainly may choose to disregard your attorney’s recommendation. If you do so, be prepared to sign a written acknowledgment that you have decided upon another approach against the advice of counsel. That’s so the lawyer doesn’t get blamed if you make a mistake!
Client and attorney: It goes without saying that your professional relationship should be free of any discrimination on the basis of color, religion, gender or gender preference, disability or last name.
In the end, the lawyer and the plumber aren’t very different. They serve at the pleasure of the client. They are obligated to do a professional and workman-like job. They can only work for one client at a given moment. And they are entitled to be paid!