The practice of law is both a profession and a business. Lawyers must balance the professional demands of service to their clients and the law with the sometimes harsh realities of business. While the debate rages on as to which is the more appropriate model of law practice, there are a few simple, common sense rules which should be applied:
1. Always insist that the scope of representation be set forth in writing. Before you hire the lawyer, insist that he spell out in writing the scope of the engagement, that is, exactly what the purpose of the representation is to be. This will benefit both of you, and will prevent misunderstandings later. Do not be afraid to tell the lawyer what your business goals are, or expectations in general, so that a fair and meaningful scope of representation can be developed in advance. If additional work is required, document the additional scope of representation in a letter.
2. Always insist that the fee arrangement also be spelled out in detail, put in writing, and that you be given a signed copy of it. In Massachusetts it is unethical for a lawyer to handle a contingent fee case without a written contingent fee agreement.
3. Seek independent advice before you sign a fee agreement that call for you to arbitrate disputes between you and the lawyer. There is a disturbing trend whereby some lawyers draw up fee agreements that require that any fee disputes you or they may have, and any complaints of malpractice, have to go to arbitration. They do this without giving you any advice as to the valuable rights, such as trial by jury, you are giving up. Refuse to sign such agreements until you have received independent legal advice as to the exact consequences of doing so.
4. Do not expect your lawyer to predict outcomes. In fact, it can be an ethical violation for an attorney to do so. Legal matters are rarely cut and dried. There is often an opposing side with a different view of the facts and a different interpretation of the law. A statement by your lawyer guaranteeing victory is a good reason to change lawyers.
5. Have reasonable expectations. Part of your lawyer's job is to help you set your expectations of what can and cannot be accomplished on your behalf. Without predicting outcomes (see above) your lawyer should be able to give you a range of scenarios, and an explanation of the factors that can influence each scenario.
6. Look for practical solutions. Trials and appeals can be very expensive, time-consuming and risky, and there is no doubt that in a contested matter you should have an excellent trial attorney. However, be sure that your lawyer also has the wisdom to seek and push for practical solutions to your case. In particular, your lawyer should be familiar and comfortable with the various forums for alternative dispute resolution, such as mediation and arbitration. Using these forums can sometimes help you achieve a reasonable, fair conclusion to your case, with much less risk.
7. If your lawyer is good, she is also very busy. Your call is important to her, but she must develop a way to prioritize the returning of telephone calls. Always leave a message that suggests the purpose of your call. Leaving no message, or "Just calling to check in" gives your lawyer no way of knowing how to deal with your needs, and the press of other business may cause a delay in returning your call. If you are calling about a routine aspect of your case, try communicating with the secretary or paralegal. Use your good judgment as to when you need the attention of the lawyer, as opposed to administrative staff.
8. Organize your materials. It will save you time and money, and your attorney will appreciate the opportunity to get up to speed quickly on your case.
9. If there is something about your case you do not understand, question it immediately. You need to understand the basic risks and benefits of proceeding with your legal matter, and a good lawyer should be able to explain this to you in general terms from the beginning, and sharpen the analysis as the case proceeds. If your lawyer seems unable or unwilling to explain, call for a second opinion immediately. In Massachusetts, you can call (866) MASSLRS (866-627-7577), and in the Boston area: (617) 654-0400 (TTY for hearing impaired clients: (617) 338-0585). In other states, contact the local bar association.
