Florida Law
Florida How to Hire an Attorney
- How to Hire an Attorney
How to Hire an Attorney
Step 1: Preparing a List
But which attorney? There are approximately 52,000 lawyers licensed to practice in the state of Florida and they are not all alike. Lawyers differ in many ways such as 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 choice carefully. The following three-step process can help you find the right attorney for your particular legal needs.
Before beginning your search, however, you should find out whether your employer, union or some other organization of which you are a member has a pre-paid legal program. Pre-paid legal programs are a new and growing development in Florida where a group or individual pays a premium to receive free advice and consultations, similar to health insurance.
Step 1: Preparing a List
Advertising
Since 1977, when the U.S. 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, the U.S. Supreme Court recently upheld a regulation promulgated by The Florida Bar restraining attorneys from sending solicitation letters to families of accident victims for at least 30 days after the accident. Even so, the range of permissible forms of advertising is quite broad and can include some fairly outlandish forms of self-promotion.
It is important to remember that the best attorneys are not always 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 often pays to use other sources of information such as the Martindale-Hubbell Law Directory, which is a list of most attorneys in the United States, or the book, The Best Lawyers in America, which is published bi-annually. A local bar association may be another source of names.
Personal Referrals
Another good source of attorney names is personal referrals. Friends and relatives are often able to recommend a lawyer. Business associates may also be a good source of names. A trusted accountant, insurance agent, or employer might know of or have worked with a particularly good lawyer. Do not overlook attorneys themselves as a source of attorney referrals. Lawyers know which of 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 Florida attorneys whom they would recommend to a friend or family member in need of legal assistance. Many of them shared their impressions and 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 of the process of the case? What outcome was the lawyer able to get? Answers to questions such as these will give you a better sense of whether this is the right lawyer for your legal matter.
Referral Services
There are a variety of organizations, public and private, which refer consumers to attorneys well suited to handle their particular problems. Local Florida bar associations also administer referral services in some of Florida's major cities. The Florida Bar handles referrals in areas without a local service. The Florida Bar Lawyer Referral Service can be reached at (800) 342-8011 or (904) 561-5844.
More specialized lawyer referral services are also available. There are a large number of legal and community organizations focusing on the needs of women, Hispanic-Americans, African-Americans, Asian-Americans, gays, lesbians, and others. Consumers 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. They may have a lawyer on staff, in addition to offering referral services.
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
Reputation
Finding out about a lawyer's reputation is often a matter of simply asking around. Ask your friends, business associates, or anyone who may know the attorney. Certainly try to ask other lawyers. If other lawyers say that Attorney X is well qualified to handle your particular case, that is a fairly strong endorsement of Attorney X's abilities. Lawyers are in the business of giving advice and do not like to be proven wrong. They will usually not refer a person to another attorney unless they are certain the other attorney is capable. Another means 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 often 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.
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 Lawyer Regulation Department of The Florida Bar. The Lawyer Regulation Department investigates charges of unethical conduct against attorneys and makes a recommendation to the Florida Supreme Court which can order admonishment, public reprimand, suspension, or even disbarment. Consumers can learn from the Lawyer Regulation Department if the attorney they are considering has ever been formally disciplined. While the vast majority of attorneys are honest and reputable, there are those few willing to bend the rules. Beware of lawyers with poor ethical reputations. A lawyer who does not follow the rules of his or her own profession may not handle your case properly either.
Specialization
The Florida Bar has a certification program recognizing attorneys who have distinguished themselves as "specialists" in various areas of law. Attorneys can become certified in immigration; admiralty and maritime; health; aviation; city, county and local government; business litigation; appellate practice; tax; civil trial law; marital and family law; wills, trusts and estates; criminal law; real estate; and workers' compensation. Only attorneys who have successfully completed the certification process can identify themselves as "specialists" or "Florida Bar Board Certified."
Not all legal problems, however, require the attention of a specialist. A simple rule of thumb is that 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. Chances are good that 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. A lawyer already familiar with your personal situation and finances may be the best person to handle new legal matters as they arise rather than a new attorney unfamiliar with your affairs. 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 you with more personalized attention, may be easier to get a hold of, and may have a lower price. But they will not have the resources and staff of the larger firms. Attorneys in larger firms, however, tend to have higher prices. Though the competence of the attorney handling your particular file is most important, the size of his or her law firm may be a factor to consider, depending on the nature of your 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. If you know your case has to be heard in Escambia County, you probably should not choose an attorney from Tampa. Also, keep in mind that 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
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 to be prepared for the initial consultation. Bring along contracts, photographs, or other relevant documents, as well as a list of questions. Be open and honest with the attorney. Do not embellish or hide facts because you think they may dilute the strength of your case. Remember that, except in very limited instances, whatever you tell a lawyer in an interview is confidential and protected by the attorney/client privilege. Before leaving the attorney's office, make sure you and the attorney are 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 does nothing on the client's behalf. If the statute of limitations (the time period for filing a legal claim) expires before the misunderstanding is discovered, the client has lost the right to sue. Many legal malpractice suits have been filed because of exactly this sort of mistake.
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 one of the most important elements of their relationship. Smart consumers should consider a number of questions: Does the lawyer listen to your story 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 right way to do everything? Does the lawyer try to dominate the conversation? Is this someone with whom you want to spend time? If you do not feel comfortable with the attorney, then you should probably not hire that person.
Malpractice Insurance
It may be an uncomfortable subject to raise with an attorney whom one has just met for the first time, but it is important to determine whether he or she carries malpractice 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 malpractice insurance, it may be impossible to recover any losses should the lawyer commit legal malpractice. Hiring an attorney will always be a bit of a gamble, but the wise consumer can limit his or her potential exposure by retaining an attorney with adequate malpractice insurance.
Experience
Many individuals naively assume that the longer a lawyer has been in practice, the more experience he or she has. This assumption is frequently 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 broad 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 his or her success in representing cases or doing similar work. Still, not having experience in the relevant area of law need not rule out a lawyer. Lawyers often take cases involving areas of law they know little about, reasoning that they can learn the relevant law as they go along. If you are comfortable with a particular lawyer and feel confident that he or she can learn the required material and adequately represent your interests, then stick with him or her. However, you may want to inquire how long it will take the lawyer to learn the relevant laws and whether you 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. Having such a timetable will help you understand the likely progress of your case. Additionally, it will give you a sense of 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 should you decide to hire him or her.
Communication
Attorney discipline boards report that the most frequently voiced complaints 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, find 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, most experienced lawyers should be able to provide a ballpark estimate of their 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.
You should not feel uncomfortable comparison shopping for a lawyer. Hiring an attorney can require a substantial outlay of resources. Like any other expenditure, a consumer should research such things as how often bills are sent out, whether the firm requires its clients pay a retainer fee, and whether the firm has minimum billing increments. And, as with any business arrangement, get the agreement in writing. A lawyer who feels it is beneath his or her dignity to discuss money explicitly is a lawyer to avoid. Law is a profession, but it is also a business. Lawyers have several different ways for clients to pay the fees for their services.
Flat Fee
The simplest fee payment option is the flat fee. A lawyer charging a flat fee simply quotes a fee for which he or she will do the work. It used to be that flat rates were quite rare. A lawyer often has no way of knowing how complex a matter is until investigating it and therefore can be adverse to committing to a flat fee in advance. However, the flat fee has been growing in popularity due to clients' desire to better predict and control the rising cost of legal representation. Lawyers today are increasingly willing to discuss the possibility of a flat fee for relatively simple legal matters such as simple wills or uncontested divorces. The consumer should bear in mind, however, that some lawyers who advertise low flat fees for simple wills or uncontested divorces rarely ever find that a client has need of a simple will or uncontested divorce. Sometimes the low advertised flat fees are merely a ploy to get a potential client in the door in hopes that, once in the office, the client can be convinced that his or her needs are actually more complex and justify higher fees.
Hourly Rate
For most matters, a lawyer will charge an hourly rate. This may sound simple, but the truth is that hourly rates are far from simple. The hourly rate is usually 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 higher rates will usually be able to complete a matter more quickly than a less experienced lawyer with lower rates. A common complaint about hourly rates is that they give the lawyer no incentive to handle a matter in a timely fashion. After all, what lawyer wants to work quickly and efficiently if it means making less money? Nonetheless, paying for legal services at hourly rates is a time-honored tradition at American law firms and 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 time required, as well as an estimate of miscellaneous expenses.
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 wealthy individuals or large corporations will simply pay an attorney a lump sum each year 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 upon payment of a large retainer up front. This money is then placed in a special account and the costs of legal services provided are deducted from that 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 legal representation has been concluded.
Contingent Fee
Another common legal fee arrangement is the contingent fee. The contingent fee is most common among personal injury attorneys who charge for their services by taking a percentage (the going rate is one-third) 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. Essentially, when an individual asks a lawyer to take a case on a contingency basis, the lawyer is being asked to gamble on the outcome of the case. A case with only a very slight chance of success can consume a great deal of the lawyer's time, energy, and money, and yield no fee if the case is lost. In this situation, an individual may need to offer a lawyer a larger percentage of the award in order to convince him or her to take that risk. Conversely, an individual with a case that is very likely to result in a large award and which presents few procedural difficulties may be able to bargain down the contingent fee to a smaller percentage of the award.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 insurance companies, the usual defendants in personal injury lawsuits. By settling early, both the firm and the client may make less money, but the firm takes its cut of the settlement at a stage when it has incurred few expenses because it has not spent the time and money to fully prepare a case. Be wary of such firms. The client has the right to refuse any settlement offer made 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. Remember that the law gives an individual only one chance to make a case before a jury. Only under very special circumstances can someone go back to court to ask a jury for more money just because the original award money ran out after a period of several years. 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 with some attorneys, they are inappropriate in some types of cases, and ethics rules forbid lawyers from accepting a contingent fee arrangement in divorce and criminal cases.
Variable Contingent Fee
A third payment option becoming fairly popular among some lawyers is the variable contingent fee arrangement. In this situation, the attorney's fees vary depending upon when the case is settled. Typical arrangements specify that the attorney collect 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 any damage award received any time after a year. With this type of arrangement, the lawyer has an incentive not to settle too early because the fee may be greater if a larger settlement can be won by going to trial.
Miscellaneous Expenses
Many disputes that clients have with lawyers over money stem from a misunderstanding of the difference between "fees" and "expenses." In all of the fee plans discussed above, most lawyers will charge for their expenses in addition to their fees, regardless of the outcome of the case. Many a contingent fee client, lured by an attorney claiming, "no fees unless we recover for you," has been shocked to find out, after failing to recover any money on their claim, that they owe money to their lawyer. The client may indeed pay no fees unless the case is successful, but may still be responsible for sizable expenses incurred in handling the case, regardless of its outcome. 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 far higher than what those services would cost at an independent copy center or post office, so it is important to discuss specific details. Also, ask about referral fees. Some lawyers refer clients only to other lawyers who will split the fees with them. Thus, the individual who employs a lawyer referred by another lawyer may be inadvertently paying for two attorneys but getting the services of only one.
Legal Aid
If you cannot afford a lawyer, you nonetheless are guaranteed access to the legal system under the U.S. Constitution. In Florida, there are a variety of local legal aid associations and other organizations dedicated to representing the indigent. You can call The Florida Bar Lawyer Referral Service for more information at (800) 342-8011 or (904) 561-5844.
Benefits of the Process
If you fire your attorney before a matter is settled, the attorney is owed the reasonable value of the time that has been spent on the matter, even if a contingent fee agreement stated that the attorney would be paid only if the case were won. All of the files on the matter belong to you 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 Your Attorney
The Florida Bar also administers a number of programs for Florida consumers at odds with their attorneys regarding money. The Fee Arbitration Program provides a voluntary, informal, and inexpensive method to resolve disputes between clients and attorneys over fees. Once a dispute has been properly filed, it is referred to a sole arbitrator (if the amount in controversy is $2,500 or less) or a panel of three arbitrators, consisting of at least one lawyer and one non-lawyer (if the amount in controversy exceeds $2,500). During the arbitration hearing, both sides present their arguments and whatever evidence they may have. Within 10 days after the hearing, a decision is issued which is binding on both parties. However, under limited circumstances the decision can be appealed by filing a petition with a court to vacate or correct the award.
The Clients' Security Fund was created by The Florida Bar in 1967 to help compensate persons who have suffered a financial loss due to misappropriation or embezzlement by a Florida attorney. The maximum amount recoverable is $50,000 per claim. The fund does not reimburse clients for losses due to attorney negligence or malpractice, but is limited to the actual amount of money taken by the attorney. Anyone wishing to file a claim with the fund should contact The Florida Bar.
In 1986, The Florida Supreme Court approved the "Statement of Client's Rights" (see below). A copy of these rights must be read and signed by both attorney and client in most contingency matters. However, many of the suggestions listed in the "Statement of Client's Rights" are helpful in any situation involving the hiring of an attorney.
| Statement of Client's Rights | |
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| When I retain a lawyer, I am entitled to one who: | |
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Resources
The Florida Bar Lawyer Referral Service can be reached at (800) 342-8011 or (904) 561-5844.
100 Ways to Cut Legal Fees and Manage Your Lawyer (publication #0104). Erwin G. Krasnow and Robin S. Conrad, published by the National Chamber Litigation Center, an affiliate of the United States Chamber of Commerce. Available by calling (800) 638-6582, credit card orders; or by sending $10.95 plus $1.00 for postage and handling to the National Chamber Litigation Center, 1615 H Street, NW, Washington, D.C. 20062.
Using a Lawyer . . . And What to Do If Things Go Wrong. Kay Ostberg, Random House, New York, NY, 1990.