How To Shop For An Attorney

Probably no group of professional practitioners in recent memory has faced the antipathy of the public more than lawyers. The contempt for the legal profession in the United States today is palpable. Lawyer jokes, put-downs and slurs are commonplace, and all the scorn is a big factor in lawyers leaving the profession and the decreasing enrollment in law schools.

Anthony T. Kroman, the dean of the Yale Law School, says, "In the last 20 years, the profession has moved further than ever toward becoming merely a business with no ethic but that of the market." David T. Link, the dean of the University of Notre Dame Law School, says, "For the most part, people interviewed saw lawyers simply as hired guns-men and women in the business of selling their services to the highest bidder; legal manipulators willing to do anything for which they are sufficiently compensated."

It is neither our intention here to add to the bashing of the bar nor to suggest that among the more than 800,000 lawyers in the country there aren't a good number of reputable attorneys available to represent clients honestly and honorably. Rather, it is our aim to offer cautionary advice and to pose common-sense suggestions to guide the pest control entrepreneur in seeking out and dealing with that licensed professional we know as the "counselor."

A WIDE RANGE OF SERVICES. It is the rare pest control business owner who has not at one time or another needed the assistance of a lawyer. To mention only a few of the situations in which the need for professional legal services might arise, there is the establishment of a business, whether it be a sole proprietorship, a partnership or a corporation; matters pertaining to purchasing or selling property; business succession; drawing up a will; wrestling with complicated tax problems; handling worker's compensation disputes; defending against customer litigation; and creating employment contracts. The major part of this article deals with considering the choice of an attorney to represent the pest controller in all but the elemental, cut-and-dried, no-contest situations that usually involve nothing more than filling out legal papers.

As the law has expanded and become more complicated, legal specialists have gain-ed prominence. It is essential for persons seeking an attorney to learn as much as possible about the candidate's expertise. General practitioners are neither as common nor as general as prospective clients might think. A criminal lawyer probably couldn't draft a will, and a lawyer who specializes in wills probably couldn't find his way around a tax court.

Experts far and wide seem to agree that when it comes to choosing a lawyer, the majority of would-be clients fail to adequately shop and ask the right questions before engaging the services of an attorney. These same experts advise calling at least three attorneys to ask abundant questions, including advance knowledge of all charges and how much experience the attorney has in the particular area of concern to the questioner.

TYPICAL TRAINING. Lawyers typically undergo three years of legal training, and before entering law school they are required (with rare exceptions) to have earned a four-year college degree and to have passed a standardized Law School Admission Test. They are licensed after passing bar examinations given by each state. Theoretically, no individual is granted a license to practice law until his or her character is carefully checked. But as in any profession, this is no guarantee that there aren't unscrupulous practitioners preying on the public.

WHERE TO BEGIN? So where does a pest control professional find a good lawyer? Actually, there are many sources for finding legal counsel. You can start with recommendations from business acquaintances, relatives, friends, and professionals such as clergy and social workers. There are also court employees, professors at law schools, and, importantly, accountants who can be helpful.

Most libraries shelve two legal reference books to aid people in their search for a lawyer. The Martindale-Hubble Law Directory lists lawyers around the country together with a rudimentary rating system. Stephen Naifeh's Best Lawyers In America is a source book written by a South Carolina attorney with a staff of seven that evaluates other lawyers.

Another source for obtaining names of lawyers is the local bar association referral service. All states and most cities have bar associations that represent the whole group of lawyers in an area who are qualified to practice. The New York State Bar Association, for example, last year referred 3,000 callers to lawyers; this was more than double the number of referrals five years earlier. To get on the list, lawyers must certify that they have malpractice insurance and limit their initial consulting fees to $25.

PCOs may also consider private legal clinics for handling routine legal work. These clinics are staffed by private lawyers who are trained to deal with minor matters that don't generally necessitate the services of legal advocates in the courtroom. Will drafting, lease writing, uncontested divorces and bankruptcy are examples of matters that fall within the scope of their normal activities. Incidentally, all the experts are in agreement that relying solely on the Yellow Pages to obtain names is a terrible idea.

Some pest controllers faced with defending themselves in tort cases have used the services of consultants as expert witnesses. With their familiarity in working with lawyers, these consultants could also possibly be a source of help in finding a competent attorney.

Kay Ostberg, author of Using A Lawyer, maintains that comparative shopping for a lawyer helps you understand the range of services and prices available, to compare differing views on your legal prob lem and to select a lawyer who is likely to handle your case as you expect.

Ostberg also advocates first telephoning each prospect on the list of potential attorneys to handle your case. She says this will shorten your list of prospects, and further suggests that you write down the questions to be asked of each lawyer, thus saving time for yourself and the attorney and demonstrating your intention of being in charge of your affairs in a businesslike and professional manner.

The initial telephone contact can serve to determine the cost of the initial consultation interview, if any, and to answer the following key questions asked of the prospective attorney:

• Have you handled this kind of case before?

• Do you sign written fee agreements with clients?

• What are your usual rates for this type of case? • Are your fees negotiable?

• How many years have you been in practice?

• Can you refer me to clients for whom you've handled cases like mine?

• Do you carry malpractice insurance?

• Is there a fee for the initial meeting? If so, is it applied toward the final bill?

During the phone conversation, answer any questions the attorney may pose, ask about any problems you can think of that may arise while the attorney is working on your case, and schedule an in-person interview if the prospect still appears to be worth pursuing.

Too often, people make the mistake of hiring the first lawyer they talk to, and then go to a lawyer's office and don't have the nerve to say something like, "Well, thanks for telling us what you do. We'll get back to you." Actually, when push comes to shove, most lawyers will agree that's exactly what you should do. Never lose sight of the fact that you are in control, the lawyer is there to serve you, and regardless of the fancy office and the sheepskin diplomas on the wall, you're doing the counselor the favor of offering him or her the opportunity to represent you.

In their own version of a "bait and switch" ploy, some law firms are not above diverting prospective clients from speaking with the lawyer who will actually be working on their case. The senior attorney may be the "salesperson" who answers your questions, while the junior attorney, who may be much less experienced, may be the one who winds up handling your case. Therefore, if the lead attorney displays unhappiness because you insist on interviewing the attorney who will actually be handling your case before hiring, that firm may not be for you.

Stephen Giller, a law professor at New York University, offers another caveat: "Does the prospective lawyer return phone calls?" He notes that the would-be client should ask for assurance that phone calls will be returned within one business day. Stalling on getting back to the client indicates that the client really is not important enough to merit very much concern on the part of the attorney.

All states have court or bar association-administered programs for resolving com plaints against lawyers. It makes sense to contact your own state's disciplinary group to find out whether the prospective lawyer has ever been publicly disciplined. This will also serve as a check of whether the attorney is licensed to practice law in your state.

THE INTERVIEW. Having made a thorough search for names via the telephone, you are now ready for the all-important interview. This is your opportunity to find out as much as you can about the lawyer. It is an evaluation exercise and is generally not the appropriate time to tell him or her everything about your case.

The interview is your opportunity to see that the attorney meets at least four important criteria:

• He/she is experienced.

• He/she is willing and able to handle your case.

• He/she is able to explain clearly and precisely what services will be performed for you and how much you will be charged for those services.

• You will be comfortable working with that particular lawyer.

Arthur Freeman, an adjunct professor at Northwestern University Law School, advises that in preparing for the interview you should first write a brief summary of the case, including all major and relevant facts. This is likely to save you a great deal of valuable time. Freeman also suggests that a list of questions to ask the lawyer be prepared. The answers to these should be written down so they can be compared in making your final choice.

Freeman adds a word of caution: "Don't be so preoccupied with your script of questions that you miss the answers."

In addition to answering any questions not answered in the initial phone call, there are a host of other queries that may be posed at the time of the office interview. Among them: • How much might I win or lose?

• What is the other side likely to settle for?

• How much do you think a court is likely to award?

• What are my legal options?

• Do you think the case could go to litigation, or is it more likely to be settled out of court?

• How long is the matter likely to take to complete?

• How do you calculate legal fees, and how much are my legal fees likely to total?

• Will I have to pay you a retainer (deposit)? If so, how much will it be?

• How will legal expenses be handled? • What is your experience with cases such as mine?

• Do you have a standard legal service agreement?

• How do you resolve disputes with your clients?

• Would you be willing to use mediation to resolve any dispute(s)?

Predictably, the area most likely to elicit misunderstanding in the lawyer-client relationship involves legal fees. Wild stories are told about lawyers plaguing clients with long and windy conversations while each minute on the phone is added to the fee, or about law firms that send clerks or paralegals "paper chasing" for unneeded trivia that is added to the client's bill.

Amy Stevens of The Wall Street Journal, writing about curbing legal costs, quoted New York attorney Stuart Rickerson: "Too frequently clients abdicate responsibility and tell their lawyers, `Do what's neces sary.' And if lawyers have a blank check to do what's necessary, they are likely to fill it in."

LEGAL FEES. An understanding of the le-gal fee system is important in the process of choosing a lawyer. There are basically three kinds of fees charged by attorneys. It is your responsibility to negotiate the fee arrangement that suits you best.

• Hourly Fees. Hourly fees are based on the number of hours the attorney has worked on your case. Lawyers also bill for partial hours, usually by the quarter or tenth of an hour. Naturally, this arrangement awards the lawyer who puts in more time, and can be an invitation to "over-lawyering."

You can protect yourself by comparing the charges with the number of hours you were told the case would take during your initial interview. By going over your itemized bills, you should be able to determine at each stage whether the attorney is exceeding the hours expected. Since you don't want to pay for stenographers or messengers, make sure your agreement specifies that you are not to be charged for their activities.

 • Flat Fees. The flat fee structure is typically employed by attorneys who can accurately predict the amount of time a case will take. Lease preparation, will preparation and probate work often fall under this category. Flat fees are generally used for routine matters that involve filling out standard legal forms; it is essentially a type of fee that is based on an hourly rate. As such, it will benefit the client to inquire how much time the matter will take, and to choose the best figure comparing the flat fee with the hourly fee. You should carefully shop for flat fees if your legal matter is a routine one, and be sure to ask what specifics the flat fee covers.

• Contingency Fees. Contingency fees are most common in personal injury and collection cases, in which the client isn't likely to be able to afford to pay in the event that the case is lost. If you win, the lawyer receives a percentage of the award; if you lose, the lawyer doesn't get paid. Understandably, the lawyer can and often does reap a windfall in contingency- fee cases because he takes the risk of getting nothing if his client does not prevail. It should come as no surprise that attorneys rarely handle cases in which much, if any, risk is involved.

The customary contingency fee is 33% of the settlement. These fees can, however, range from 14% to 50%.

Some lawyers offer a sliding-scale arrangement in which the fee is dependent on the stage at which the case is eventually settled. Caution is advised when sliding-scale fees are proposed; attorneys who are being paid under this type of arrangement sometimes push their client to accept a settlement because going to trial would involve more time and work, even though the client might stand to gain more (or lose less) by going through with a trial.

HELPFUL TIPS. Before committing yourself to an attorney, several legal experts offer the following tips:

• Find out how much the other party or the insurance company will offer you directly without the help of an attorney.

• Ask several attorneys about your chances of success, how much you might be awarded, and how much work will be needed for adequate representation. Also ask whether the fees are negotiable.

• Based on the estimates, figure how much you can expect to receive after paying attorney's fees and expenses. If it is about the same as what you could receive directly, negotiate a settlement on your own.

• If you hire a lawyer, calculate the hourly rate based on your estimates, and if the contingency fee is substantially higher than the attorney's regular hourly rate, bargain for the best hourly rate you can get.

CONCLUSION. Pest control operators who are clients or potential clients of attorneys should remember that in dealing with the legal profession they are entitled to the same courtesy and consideration from attorneys that they give to their own pest control customers. Just like the man seeking help with a termite problem or the woman wanting service in a home infested with fleas, the client-pest controller should shop for the best value, should question and demand assurances, and should insist on clarity and protection in an ongoing, comfortable relationship. Such an approach could eventually go a long way toward removing the tarnish that has settled on today's legal profession.