Selecting a lawyer for representation is a major decision and should be the result of careful planning. Unfortunately, both companies and individuals often choose representation based on a personal recommendation without any further research. Just last week, I got a panicked call from a good friend who was on the verge of tears as she began in her search for a divorce lawyer. She was really confused and wondered: How she could choose between the different lawyers recommended by her parents and friends; If she should meet with each lawyer; or What she should ask when she speaks to them.
I understand how difficult hiring a lawyer can be. As General Counsel to several tech companies, I have hired dozens of lawyer and law firms around the world. I have also had to retain lawyers to represent me personally in trust and estate, family law and real estate matters. Oftentimes, I am approached for personal referrals by friends and clients when they need to hire a lawyer. In addition, several times a month, potential clients evaluate me as they determine whether to retain our firm. These potential clients often fail to ask vital questions before selecting counsel.
In my last post, I spoke broadly about how to build a team of legal advisors. In that post I gave an overview for selecting counsel, but here we will focus on the key component of selecting a lawyer – the interview. Let’s assume you are a CEO looking to hire a lawyer to represent you in negotiating your employment contract with a new company. As discussed in my last post, you have already spoken to other CEOs, you know about lawyers they have used and have also researched them on LinkedIn. In addition, you have spoken to your primary family lawyer (who I refer to in my last post as your “Personal GC”) and have narrowed your search down to three lawyers you want to interview. Below are some of the questions you should ask in the interview.
Experience and Expertise
Do you have expertise in the area of law I am dealing with? Here, you are trying to evaluate specific expertise in the area you are dealing with and how the lawyer acquired this expertise. In our example, the follow up questions you should ask include:
- Do you have expertise in the area of employment law, specifically executive compensation?
- How many years have you practiced in this area?
- How did you acquire your expertise in this area (training from a firm that also has expertise in this area or were you self-taught)?
- Are you a recognized expert in this area? For example, some state bars offer certification in certain practice areas and there are other organizations which recognize lawyers for their expertise.
- Have you ever written or spoken on this topic?
The mistake I often see friends make when selecting counsel, is that they incorrectly assume that just because someone is a lawyer they have worked with before or is highly recommended by a friend, that lawyer is also an expert in the issue they are dealing with. Don’t make this mistake – you can save time and money by hiring a lawyer who is an expert in the issue you are facing.
Do you have extensive experience representing clients who faced the same legal issues I am dealing with and are similar to me? Here, the focus should be experience with the type of client rather than the area of law. In our example, the client is a CEO in need of an employment lawyer. Oftentimes, employment lawyers specialize in representing only individuals, and some only represent companies (though some lawyers represent both). While an employment lawyer who generally represents companies in employment litigation (as most large firm lawyers do) has expertise in employment law, they may not have experience representing an executive.
Representing a CEO as opposed to a company can be different in that a senior executive is most likely to have different needs and expectations than a corporate client. For example, executives often have different expectations when it comes to client service because they are dealing with legal issues personally (and thus live with them 24/7).
Other areas of similarity that may be important (depending on the legal issue) can include:
- net worth
- geographic location
For example, if you were looking to hire a divorce lawyer or a trusts and estates lawyer, the type of lawyer you would hire would differ if your net-worth was $1 million as opposed to $100 million.
Can I speak with some of your former clients who you represented? Possibly some who are similar to me and dealt with the same issue I am facing? This is a crucial question which I always ask potential lawyers, and one which I encourage potential clients to ask me when they are evaluating our firm. If the lawyer responds by saying such information is confidential and he or she cannot provide it to you, I would consider that a red flag and continue your search. When I am asked that question, I request the permission of the former client first and then respond. As discussed above, you should ask to speak with a former client who mirrors your situations as closely as possible. For example, if you are looking to hire a lawyer to help you negotiate your employment contract to be CEO of a pre-IPO Internet company in Silicon Valley, you should ask to speak with a former client that the lawyer represented in negotiations with a private technology company (as opposed to employment negotiations for the CEO of a large public entertainment company or where the client was a company as opposed to an executive).
Questions to ask about working with the lawyer
At the outset of the engagement don’t be shy about asking questions that relate to hiring and working with the lawyer. Here are the basic ones:
How much time do you expect this to take (or “Can you provide me with a budget for this engagement”)? When I hire a lawyer, I am more interested in the lawyer’s best guess of how many hours the task or matter will take than the lawyer’s hourly rate (though that is important too).
No lawyer will give you an exact budget because the time can be affected by things outside of the lawyer’s control (such as difficult opposing counsel), but the lawyer should be able to give you a range of hours. You can also ask the lawyer to let you know once you hit the estimate (for example, if the lawyer tells you the time to prepare your trust is 3-5 hours, you can ask her to let you know once she has spent 4 hours). In my own experience, I see clients overly concerned about the hourly rate as opposed to the amount of time. I would prefer to hire a true expert in the area with a higher hourly rate than a less experienced lawyer with a 20% lower rate, but who takes 4 times longer to do the same thing.
Are you open to alternative fee arrangements? An alternative fee is any other way to pay a lawyer besides the old standard hourly rate. When I hire counsel, I often like to know what the cost will be so I will push for a flat fee if that is possible (some engagements do not allow for them). Flat fees work best for specific types of legal projects. For example, if you are hiring a lawyer to draft a trust and he says the time could range from 3- 6 hours at an hourly rate of $500/hour, you may propose a flat fee of $1,700 and negotiate from there.
Recently, there has been great deal of criticism in the news over the billable hour. Just last week, there was a great editorial in the New York Times entitled “The Tyranny of the Billable Hour.” This editorial was in response to a lawsuit brought by a former client against a large law firm where the client alleges gross overbilling.
Timing and availability. At the outset of every engagement, you should determine when the lawyer will be able to begin work on your matter and how long it will take. This is key to make sure the lawyer can meet your timeline. Unfortunately, lawyers and clients often have issues around timing: clients can have unrealistic expectations on when the lawyer can begin work or how long something may take and sometimes lawyers take too long to get around to focusing on your matter. Communication is key here to avoid misunderstandings down the road. Issues related to timing are also a reason to select your lawyer early as opposed to searching for a lawyer at the last minute (like trying to find a lawyer to hire on Friday afternoon to advise you about something on Monday morning).
Who will work on my matter? You should find out if the lawyer you hire will actually be the person working on the matter or if someone else will. Questions to ask include:
- Are you the person who will be handling this and doing the work on my behalf?
- If not, who will and why?
- If I have an issue, can I speak with you?
- What is the experience of the lawyer who will be doing the work if it is not you?
- Will I be paying for that lawyer to learn or is he or she experienced in the area and working with clients like me?
What is the best way for me to reach you? Are you available only during business hours? Are you willing to give me your cell phone? Are you OK with me texting you (many firms have rules preventing clients from texting because they cannot keep an easy record of such communications). When can I expect you to return my phone calls and respond to my emails?
Why is the retainer so high? Many lawyers require a retainer that will be placed in their client trust account. Don’t be shy about asking how the lawyer determined the amount of the retainer. For example, if the lawyer is doing work for you that should not exceed 5 hours of his time, the retainer does not need to be equivalent to 10 hours of time. You can also propose that the retainer be limited to a certain amount and once the lawyer’s time exceeds the retainer you will replenish it.