In last month’s column, we talked about how to create a relationship between you and your lawyer. This month, we look at what happens when something goes wrong. Navigating through such difficulties requires your dedicated time and true effort.
Attorney on call
Often when clients need me, they think they are totally in the right. They become their own lawyer without the benefit of a legal education and approach the situation with too much emotion. Think, first, be realistic and insist that your attorney be realistic.
Contemplate all outcomes. It is difficult for me to give an estimate of success in litigation or arbitration, but many times the way the case is presented can impact the outcome. Give all materials relating to the issue to your attorney. Let her decide whether a slip of paper is material or not. Otherwise, be prepared to have your lawyer pester you until all of the information is presented.
Don’t play Chicken Little. If you constantly say the sky is falling, the tactic might backfire. If it is truly an emergency, your lawyer will attempt to accommodate you, setting aside other matters to address yours.
When requesting a lawyer to do something, ask for a realistic estimate of when the task will be completed. Do this at the outset. If the attorney is occupied with another serious matter, he should be frank about the time frame. If your matter is really pressing, he might assign another attorney within the firm to address it immediately.
To the Courts
When confronted with any adversarial proceeding, be prepared to spend a substantial amount of your own time working with the attorney to develop information and review documents. This is a team effort, and it is not easy.
In litigation, records become extremely important. This means both paper and electronic documents. A word to the wise: E-mail is perhaps the most deadly communication that has developed over the years relative to adversarial proceedings. Too often, you will put something in an e-mail that will come back to haunt you.
If you don’t want to confront it again, don’t put it in writing in the first place.
On Your Side
Whom does your attorney represent? If you retain an attorney to represent you individually, you are the client. If you retain an attorney to represent your employer, who pays the bill, the organization is the client.
To avoid a conflict of interest, it is particularly important to establish a clear understanding of who the client is at the start of the relationship.
Sometimes, the attorney-client relationship doesn’t work out. And it often is unclear who has the authority to terminate that relationship.
In most retainer agreements (which should be in writing), there is a paucity of information as to how the relationship can be terminated. Expect that attorneys will want to be paid in full through the date of termination. While the laws will vary from state to state, the attorney, if not paid, might be able to retain client records as a lien against outstanding fees. Additionally, the attorney usually has the right to charge for the cost of transmitting files to your new counsel or back to you.
On the flip side, the retainer agreement should address what happens if the attorney wants to fire the client. From time to time, this is necessary for a multitude of reasons, which might include conflict of interest, lack of cooperation by the client or a position taken by the client that is inconsistent with the lawyer’s advice.