How to Find and Work With an Attorney

April 27, 2003

This month, I wanted to spend a little bit of time on the subject of locating and working with an attorney. Often times, people hesitate to seek out legal advice because they believe it will be expensive, or because they are embarrassed by their situation or their sexual orientation. Although there are attorneys, as in everything, who will overcharge and under serve, I know far more who give advice and time readily and often without charge.

The first thing to remember is that, as in medicine, there are fewer and fewer general practitioners. Because the law has become so complex, most attorneys specialize in a few areas of law, such as real estate or criminal law. Thus, you should look for someone, if possible, who specializes in the type of law you need help with. I often advise people to begin by calling the local bar association, which usually has an attorney referral network. When you call the referral number, an intake specialist will usually ask you a few questions to help you determine the type of attorney you need, then provide you with the name of one or more attorneys who specialize in that area. If you can't find a referral program in your area, you might check with one of the directories online, such as Findlaw (http://www.findlaw.com), West Legal Directory (http://www.wld.com), or that old standby, Martindale-Hubbell (http://www.martindale.com).

Second, when you speak with an attorney, your conversation is usually governed by attorney-client privilege. Even if the attorney you talk to doesn't take you on as a client, the things you tell him or her when you first meet with the attorney may not be revealed by the attorney except in very limited circumstances.

I emphasize interview when you first meet with an attorney because not every attorney is going to meet your needs. First, call the attorney's office and set up a preliminary meeting. You don't need to go into a great deal of detail over the telephone but ask him or her if he or she has handled a similar matter before. Also, be sure to ask if there is any fee associated with the initial consultation so you're not surprised. It's not uncommon, particularly for non-litigation matters, for the attorney to charge their regular hourly fee for a brief consultation. At the first meeting, bring all of the documents, letters, and everything you can think of related to your case.

Once your attorney agrees to take you on as a client, he or she will provide you with some form of contract. Typically, there are three kinds of these: a straight hourly contract, a fixed fee contract, or a contingency contract. The kind that get's used will depend upon the attorney, the type of matter, and the bar rules. Generally, hourly fee contracts are used when the attorney is representing you as a defendant in a criminal or civil matter or when there is an on-going project.

Fixed fee contracts are used when the work is something straightforward, such as a simple will or other type of document. They are becoming more common these days and the attorney will usually require you to pay in advance. Contingent fee contracts are most commonly used with plaintiffs in litigation. These are fees that are contingent upon the outcome of the case and are most common in personal injury, medical malpractice or similar high-stakes cases. These contracts award the attorney a fee only if they are successful in winning your case. A few states regulate the percentages and some prohibit them. Some attorneys use a modified contingent fee, which requires you to pay a reduced fee during the litigation and a reduced percentage of the award if you are successful.

Most attorneys expect to get some of their fee in advance. There are two ways they can do this: as a non-refundable retainer or as an advance against fees. A non-refundable retainer is an earned fee paid to an attorney for simply agreeing to take a case. It's most often used by very high demand defense attorneys, like a Johnny Cochran, and you are paying them this fee because they have their choice of clients. For example, a very well known criminal defense attorney I know in Houston will not represent you unless you pay a $50,000 non-refundable retainer PLUS his regular hourly fees and expenses. He gets this fee because he's one of the best in the business. Another type of retainer is a monthly fee for regular clients (usually businesses). It's really a flat fee that guarantees a certain amount of the attorney's time during a specific period of time.

An advance fee is sometimes called a retainer, but it's really an advance against earned fees. The amount will vary depending on the estimated length of time involved and the attorney's hourly or daily fee. The attorney will bill his or her time and expenses against this advance, and you may be expected to replenish the advance when it gets below a certain level. You will generally received monthly bills detailing the fees for the prior month and the attorney or firm will only draw down these funds when you have approved the bill for that month. Most states have very strict rules for collecting, maintaining and disbursing these funds, which must be maintained in a client trust account separate from the attorney's other funds. The attorney's contract will provide details on how these funds, if any, are maintained.

There are basic expectations that are required when you hire an attorney. First, you will be entitled to make the big decisions, such as whether to settle, but let your attorney choose the strategy. Your paying for their advice so listen to it. You are expected to cooperate with your attorney, providing him or her with whatever information they ask for, show up on time for appointments, depositions, court appearances, and respect their time. Many attorneys will charge for telephone consultations so be sure you understand that the clock is ticking when your on the telephone. On the other hand, you have a right to be adequately informed about developments in your case, and your attorney should return your telephone calls in a reasonable amount of time, let you know what's going on in the case, send you copies of all documents and letters received or sent on your behalf, and protect your interests. Don't second-guess your attorney but don't let them keep you in the dark. You have a right to fire your attorney and your attorney usually has a right to withdraw from representing you. Finally, when you and an attorney part ways, hopefully because your case has finished, you have a right to the return of your files in a reasonable time, although the attorney has a right to retain copies of everything for his or her files.