California Law
California How to Hire an Attorney
- How to Hire an Attorney
How to Hire an Attorney
Perhaps the first question for anyone reading this Guide is, "Do I have a legal claim?" Our legal system provides a number of remedies for people who have been injured, but there are limits. Not everyone who has been injured by someone has a legal claim. The simplest way to find out whether the legal system can help solve your problem is to consult an attorney.
But which attorney? Lawyers differ in practice area, experience, cost, firm size, and location. Choosing the right attorney is extremely important. A bad choice can be both expensive and frustrating. Like any major purchase, consumers should be prudent and research their options carefully. The following three-step process can help a consumer find the right attorney for his or her particular legal needs.
Before beginning the search, however, the consumer should find out whether an employer, union, or organization of which he or she is a member has a pre-paid legal program. Pre-paid legal programs are a new and growing development in California. Under a pre-paid legal program, a group or individual pays a premium to receive free advice and consultations, similar to health insurance.
Step 1: Preparing a List
The first step for any consumer choosing a lawyer is to generate a list of prospects. This is usually an easy task. Names of attorneys are available through attorney advertisements, personal referrals, or referral services.
Advertising
Since 1977, when the United States Supreme Court lifted the ban on attorney advertising, there has been an explosion of print and broadcast advertising by attorneys eager to attract new clients. Not all forms of lawyer advertising are permitted, however. For example, lawyers are prohibited from sending solicitation letters to accident victims or their families. Even so, the range of permissible forms of advertising is quite broad.
It is important to remember that the best attorneys are not necessarily those who do the most advertising. While it may be easy to look up attorneys in the phone book, or call a telephone number broadcast on radio or television, it pays to use other sources of information, as well. The Martindale-Hubbell Law Directory, which is a list of most of the attorneys in the United States, a book called, The Best Lawyers in America, which is published bi-annually, and a local bar association are other sources of names.
Personal Referrals
Another good source of attorney names is a personal referral. Friends and relatives often are able to recommend lawyers. Business associates also may be a good source of names. A trusted accountant, insurance agent, or employer might know of or have worked with a particularly good lawyer. Even attorneys themselves are a good source of attorney referral--lawyers know who among their colleagues they would recommend to handle the legal needs of their friends and family members. The publisher of this Guide recognized this fact and asked thousands of California attorneys whom they would recommend to a friend or family member in need of legal assistance. Their input helped create this Guide.
It is important to ask specific questions of the person recommending a lawyer. How does the person know the lawyer? Has the person ever consulted the lawyer? If so, for what reason? What are the lawyer's strengths and weaknesses? Does the lawyer return phone calls promptly and keep the client informed about the case? What outcome was the lawyer able to get? Answers to questions such as these will help a person determine whether this is the right lawyer for a particular legal matter.
Referral Services
There are various organizations, public and private, that refer consumers to attorneys well-suited to handle their particular problems. Local California bar associations also administer referral services in some of California's major cities. The State Bar of California handles referrals in areas without local service.
Specialized lawyer referral services are available also. There are numerous legal and community organizations focusing on the needs of women, Hispanic-Americans, African-Americans, Asian-Americans, gays, lesbians, and others. People who feel more comfortable discussing their legal needs with someone of a similar background or outlook should not hesitate to contact one of these organizations.
Once the consumer has a list of a few potential lawyers, it is time to think about the second step in the process--researching the attorneys on the list.
Step 2: Researching the Attorneys on the List
After a consumer has generated a list of attorneys, the next step is to obtain more information about each attorney. Some questions can be answered by a quick phone call to the lawyer's office; others require additional research. Some of the most important issues include reputation, speciality, size of the lawyer's firm, and location.
Reputation
Finding out about a lawyer's reputation can be as simple as asking friends, business associates, or anyone else who knows the attorney, including other lawyers. Lawyers are in the business of giving advice and do not like to be proven wrong. They usually will not refer a person to another attorney unless they are certain the other attorney is capable. Another method of finding out about a lawyer's reputation is asking his or her clients. Many lawyers are willing to provide a list of references or past clients. It is worthwhile to call these organizations or people and find out what sort of legal work the attorney performed and the manner in which it was completed.
There are also reference sources such as this Guide or The Best Lawyers in America, which use objective, merit-based methodologies in choosing which attorneys will be included. Each attorney listed in this Guide, for example, was nominated by other California attorneys as being particularly capable in a specific area of legal expertise, indicating a reputation for hard work and technical skill.
Finally, consumers are advised to research an attorney's ethical standing in the legal community. This may be done through conversations with other attorneys, friends, business associates, or by contacting the State Bar of California. The State Bar of California investigates charges of unethical conduct against attorneys and makes recommendations to the California Supreme Court, which can order admonishment, public reprimand, suspension, or even disbarment. Consumers can contact the Bar to find out if the attorney they are considering has ever been formally disciplined. While the vast majority of attorneys are honest and reputable, there are a few with poor ethical reputations. A lawyer who does not follow the rules of his or her own profession should be avoided.
Specialization
The State Bar of California has a certification program for attorneys who have distinguished themselves as "specialists" in various areas of law. Attorneys can become certified in appellate law, criminal law, estate planning, trust and probate, family law, immigration and nationality law, personal and small business bankruptcy, taxation, and workers' compensation. Only attorneys who have successfully completed the certification process can identify themselves as "specialists" or "California Bar Board Certified."
Not all legal problems, however, require the attention of a specialist. Special legal problems require specialists; general legal problems do not. Just as one would not turn to a medical specialist for a common cold, one need not turn to a legal specialist for a routine legal matter. If a local attorney engaged in the general practice of law has done a fine job on a variety of legal matters in the past, he or she can be counted on to handle routine legal matters in the future. Also, because most specialists tend to cluster in larger cities, a consumer in a smaller community might choose a generalist practicing locally for the ease and convenience of being able to work with a member of the community.
Firm Size
Another issue to consider is whether to choose a solo practitioner, a lawyer in a small firm, or a lawyer in a large firm. A solo practitioner or a lawyer practicing in a small firm may be able to provide more personalized attention, may be easier to contact, and may charge a lower fee, but will not have the resources and staff of a larger firm. Though the competence of the attorney handling the case is most important, the size of his or her law firm may be a factor to consider, depending on the nature of the legal problem.
Location
A lawyer's location is another obvious consideration in the hiring process. Because lawyers charge for the cost of transportation to and from meetings, it is wise to choose an attorney located close to where these meetings will take place. While most attorneys located in major cities have convenient access to courthouses, banks, and corporate headquarters, they also have higher office space costs. And the cost of office space, like other forms of overhead, is usually passed on to the consumer.
Step 3: Interviewing the Attorneys
Once an individual has narrowed down the list to a few attorneys, he or she should phone them individually and arrange a personal consultation. It is wise to ask on the phone whether the lawyer charges a fee for the initial consultation--most lawyers do not.
Initial Consultation
Consulting a lawyer does not obligate the consumer to retain that lawyer. An initial consultation is merely an opportunity for attorney and consumer to learn about one another and to discuss the legal problem.
It is important that the consumer be prepared for the initial consultation by bringing along contracts and other relevant documents, as well as a list of questions. In discussing the legal problem, the consumer should be open and honest with the attorney. Except in very limited instances, whatever he or she tells a lawyer in an interview is confidential and protected by the attorney/client privilege.
Before leaving the attorney's office, the consumer and the attorney should be clear as to whether the attorney has or has not been hired. Many consumers mistakenly assume that consulting an attorney is the same as hiring an attorney. This can be a costly misunderstanding. If the lawyer believes he or she has not been retained and, for example, the time period for filing a legal claim expires before the misunderstanding is discovered, the client has lost the right to sue.
Personal Chemistry
Much of being a good attorney has to do with responsiveness, understanding a client's particular situation, and the ability to communicate. The lawyer who has bad rapport with a client may not be an effective representative of the client's interests. The chemistry between a client and an attorney is very important. Smart consumers should consider a number of questions: Does the lawyer listen, or does the lawyer interrupt in the middle of sentences? Does the lawyer present a variety of options to pursue, or does the lawyer insist there is only one way to do everything? Does the lawyer try to dominate the conversation? If the consumer does not feel comfortable with the attorney, he or she probably should not hire that person.
Professional Liability Insurance
It may be an uncomfortable subject to raise with an attorney whom one has just met, but it is important to determine whether the attorney carries professional liability insurance and how much coverage he or she has. The financial losses to a client stemming from a poorly handled case can be quite large. If a lawyer does not carry professional negligence insurance, it may be impossible to recover losses if the lawyer commits legal negligence. Hiring an attorney is always a bit of a gamble, but the wise consumer can limit his or her potential exposure by retaining an attorney with adequate insurance.
Experience
Many individuals assume that the longer a lawyer has been in practice, the more experience he or she has. This assumption may be unfounded. Relevant experience in a particular area of law is far more important than the total number of years a person has practiced law. A young attorney whose practice has been narrowly focused on one area of law may have far more insight into how a particular problem should be handled than an attorney with more years of practice in a variety of legal matters. In addition, because laws change so quickly, a young associate may have greater knowledge of a particular area of law than a more senior attorney. The consumer should ask pointed questions about a lawyer's specific experience handling similar cases.
In some large firms, a senior partner may agree to handle a matter, then assign most of the work to less-experienced associates. It is wise to ask who is going to work on a file, and discuss that person's experience and success doing similar work. Still, lack of experience in the relevant area of law is not necessarily a reason to rule out a lawyer. Lawyers usually are capable of learning the relevant law as they go along. Feeling comfortable with a particular lawyer and confident that he or she can learn the required material to adequately represent one's interests are good reasons to stick with him or her. However, the consumer may want to inquire how long it will take the lawyer to learn the relevant laws and whether the consumer will be expected to pay for the educational time.
Estimate of Time
A lawyer ought to be able to provide an estimated timetable for completing a case. The timetable is based on the complexity of the matter, whether the lawyer expects to go to trial, how cooperative all parties are, and the lawyer's workload. A relatively simple matter may take a long time to complete if a particular lawyer is too busy with other matters to devote his or her full attention to it. An experienced lawyer should be able to describe the steps necessary to complete a task and estimate how long each step will take. Having an initial estimate of time can be a guidepost for evaluating the attorney's subsequent performance.
Communication
Attorney discipline boards report that the most frequently voiced complaint about lawyers is that they do not communicate well with their clients. Consumers should insist on being kept up-to-date on major developments concerning their files. Before retaining a lawyer, it is worth finding out how often the lawyer sends out status reports or otherwise notifies a client about the progress of his or her case. Also, if a client has a question, he or she should feel comfortable enough with the attorney to ask for an explanation--after all, it is the client's case.
Cost
Money should be discussed at the initial meeting with an attorney. Although a lawyer may not be able or willing to give an exact cost, an experienced lawyer should be able to provide an estimate of his or her fees. It is important to find out the costs of other services or items that may be charged in addition to the attorney's fees.
Consumers should comparison shop for lawyers. Hiring an attorney can require a substantial outlay of resources. A consumer should research how often bills are sent out, whether the firm requires its clients to pay retainer fees, and whether the firm has minimum billing increments. A lawyer who will not discuss money explicitly is a lawyer to avoid. Law is a profession, but it is also a business. Lawyers have several different methods of charging the fees for their services.
Flat Rate
The simplest payment option is the flat rate. A lawyer charging a flat rate simply quotes the total amount for which he or she will do all the work. It used to be that flat rates were quite rare, because a lawyer often has no way of knowing how complex a matter is until investigating it. However, lawyers increasingly are willing to discuss the possibility of flat rates for relatively simple legal matters such as simple wills or uncontested divorces. The consumer should bear in mind, however, that some lawyers advertise low flat fees as a ploy to get a potential client in the door in hopes that the client can be convinced that his or her needs are actually more complex, justifying a higher fee.
Hourly Rate
For most matters, lawyers charge an hourly rate. The hourly rate usually is a reflection of the lawyer's competence, experience, and overhead expenses. The lowest hourly rate is not necessarily the best deal for the consumer. An experienced lawyer with a higher fee will usually be able to complete a matter more quickly than a less experienced lawyer with a lower fee. A common complaint about hourly rates is that they give the lawyer no incentive to handle a matter in a timely fashion. Nonetheless, paying for legal services at hourly rates is a time-honored tradition in American law firms and is unlikely to disappear soon. Before agreeing to hire a lawyer to work at an hourly rate, it is appropriate to request a written estimate of the total time required.
Retainer Fee
There are actually two kinds of retainer fees used in the legal community. The first is a variation of the flat fee. Rather than paying a lawyer a flat fee to handle a specific matter, some individuals or large corporations simply pay an attorney a lump sum annually to retain that attorney for the year. In return for this kind of retainer fee, the lawyer agrees to be on call for any legal problems that arise or to manage routine day-to-day legal affairs. The average consumer does not have a sufficient volume of legal questions to require this type of set-up.
The more common retainer fee is actually just an advance on the hourly rate described above. If it is the first time that a lawyer has represented a particular client, or if there is any question about the client's ability to pay, the lawyer may insist on payment of a large retainer up front. This money is placed in a special account and the costs of legal services provided are deducted from the account. A client who agrees to pay this type of retainer is entitled to periodic written statements detailing how much has been deducted from the account for legal services and, of course, the client is entitled to any money remaining in the account when the legal representation has concluded.
Contingent Fee
Another common legal fee arrangement, especially in personal injury cases, is the contingent fee. The attorney charges for services by taking a percentage of whatever damages are recovered, or the amount of money saved for the client, whether through an out-of-court settlement or a jury award. The percentage that a lawyer asks for depends on the difficulty of the issues, the amount of money at stake, and the skill and experience of the attorney. The going rate is one-third. Essentially, when a lawyer takes a case on a contingency basis, the lawyer is gambling on the outcome of the case. A case can consume a great deal of the lawyer's time, energy, and money, but yield no fee if the case is lost. In this situation, an individual may need to arrange to pay a larger percentage of the award. Conversely, an individual with a case that is likely to result in a large award may be able to bargain down the contingent fee to a smaller percentage of the award. Under a variable contingent fee arrangement, the attorney's fees vary according to when the case is settled. Typical arrangements specify that the attorney collects 20 percent if the case settles before initiating a formal lawsuit, 25 percent if the case settles within a year after a lawsuit is filed, and 33 percent of a damage award received any time after a year. Under this type of arrangement, the lawyer has an incentive not to settle too early because the fee may be greater if the case proceeds to trial.
There are several considerations to keep in mind when hiring a personal injury lawyer to work on a contingent fee basis. Many law firms specializing in these kinds of cases make their money by handling a large number of personal injury cases that can be settled quickly. The typical contingent fee arrangement motivates some lawyers to accept early, low settlement offers made by defendants. By settling early, both the firm and the client may make less money, but the attorney has incurred few expenses and spent little time to prepare the case. The client should know he or she has the right to refuse any settlement offer and should consider doing so, especially if the case is a strong one that may cause a jury to award a large sum of money. This is an especially important point to consider if someone has an injury that will require medical care and medical expenses for the rest of his or her life.
Although contingent fee agreements are quite popular, they are inappropriate in some types of cases, and ethics rules forbid lawyers from accepting contingent fee arrangements in divorce and criminal cases.
It is wise to clarify the exact terms of a contingent fee arrangement before signing it. Almost all contingent fee agreements stipulate that the attorney's expenses are deducted from any award won, and the remainder of the money is then split according to the percentages set forth in the agreement. Thus, the advertisement that states, "no fee unless you win," does not mean that a client pays nothing for legal representation. Win or lose, a client is almost always responsible for the attorney's costs. A client must make sure, therefore, that he or she fully understands what kind of costs he or she is expected to pay before signing a contingent fee agreement.
Miscellaneous Expenses
Many money disputes between clients and lawyers stem from a misunderstanding of the difference between "fees" and "expenses." In most of the fee arrangements discussed above, lawyers charge for their expenses in addition to their fees, regardless of the outcome of the case. For example, an attorney might charge for travel time, secretarial overtime, delivery services, court costs, filing fees, deposition fees, expert witness fees, investigation expenses, and the initial consultation. Many law firms bill incidentals, such as photocopying and postage, at rates higher than what those services cost at an independent copy center or post office, so it is important to discuss specific details.
Legal Aid
Even if a person cannot afford a lawyer, access to the legal system is guaranteed by the United States Constitution. In California, there are many local legal aid associations and other organizations dedicated to representing the indigent.
Benefits of the Process
The point of this three-step process is to help people intelligently choose their legal representation. Consumers using this process begin with a list of names and, after diligent research and meetings, end up with one name that stands out among the others. The consumer should be able to cross some names off the list before actually meeting the lawyers because, after researching them, it will become apparent that some attorneys are inappropriate for the legal matter at hand. It is even possible that every name on the list will be crossed off for one reason or another, and the consumer will have to return to step one. Unless the consumer is under extreme pressure to resolve a legal matter immediately, it is better to spend time in choosing a good lawyer than to try to undo a poor decision later. Although it is almost always the prerogative of the client to change lawyers at any time before a legal matter has been concluded, doing so can be costly and time-consuming. If the attorney is fired before a matter is settled, the attorney is owed the reasonable value of the time that has been spent on the matter. All of the files on the matter belong to the consumer and must be turned over upon termination of the lawyer's services. A new attorney will have to spend time becoming acquainted with the facts in the file.
Complaints Against an Attorney
If, for some reason, an attorney has not adequately represented a person's interests, he or she has the right to file a complaint against the attorney with the State Bar of California. All California attorneys are governed by rules of professional conduct and violation of such rules may result in disciplinary action ranging from admonishment to disbarment.
Suggestions for Hiring an Attorney
- Is capable of handling your case.
- Will represent you zealously.
- Will preserve your confidences or statements made in the course of the relationship.
- Will give you the right to make ultimate decisions in your case.
- Will charge you a reasonable fee and tell you, in advance of being hired and your request, the basis for that fee.
- Will show you courtesy and consideration at all times.
- Will exercise independent professional judgment on your behalf, free from compromising influences.
- Will inform you periodically about the status of your case and, at your request, give you copies of documents prepared.
- Will exhibit the highest degree of ethical conduct.
Resources
Kay Ostberg, Using a Lawyer . . . And What to Do If Things Go Wrong (Random House, New York, NY 1990).
For information on researching an attorney or filing an attorney complaint, contact the State Bar of California, 555 Franklin Street, San Francisco, CA 94102-4498, (415) 561-8200.
The State Bar of California Lawyer Referral Service in Los Angeles can be reached at (213) 622-6700.
To order Erwin G. Krasnow & Robin S. Conrad, 100 Ways to Cut Legal Fees and Manage Your Lawyer, send $10.95 plus $1.00 for postage and handling to the United States Chamber of Commerce, National Chamber Litigation Center, 1615 H Street, N.W., Washington, DC 20062, (800) 638-6582.