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HOW TO HAVE THE BEST RELATIONSHIP WITH YOUR LAWYER

By: Guy O. Kornblum, Certified Civil Trial Advocate, National Board of Trial Advocacy and Member, Million Dollar Advocates Forum

The lawyer-client relationship is built on trust and confidence – it is an intimate business relationship that is built on professionalism, service and a fair price. If this is the goal, how can it best be achieved? That question requires first an exploration of the nature of the relationship, and then some suggestions as to how both lawyer and client can work to achieve the goals for the client, whether it be advising on a business matter, handling a domestic or family law issue, or representing the client in litigation.

First, the relationship is one of confidence. Once selected, your lawyer must have the your confidence, and vice-versa. That is, you should believe that the lawyer selected is the appropriate professional to handle the legal matters for which he or she has been retained. In the same vein, your lawyer must believe that you as the client will be honest and candid in your dealings, and that you can work together, along with your lawyer’s associates and staff, to carry out the legal tasks for which your lawyer has been engaged.

Second, your legal needs must be clearly understood. What is the legal problem, and what are the realistic goals of the lawyer’s representation? Once your lawyer has identified the legal issues, you should have a candid and realistic discussion of what can be done, and what the results might be. However, representing a client is not an exact science. There are no guaranteed results. You should be given a straightforward analysis of your legal problems, the issues presented, and the alternatives that are available. Your lawyer should do this at an early stage in representation, and continue to advise you as your matters progress on whether there have been changes.

A third component is good communication. One of the frequent complaints about lawyers (and health care professionals too) is that you cannot get direct contact. Either phone calls are not returned, or you are prevented from talking directly to your lawyer. Instead, there are barriers, either staff intervention or only voice mail. While it is important to recognize that your lawyer’s time is precious to him, and demanding direct contact on relatively minor matters (such as setting up appointments) is not appropriate, your lawyer should be available for direct contact on important substantive and procedural questions, and when advice is needed. I find that voice mail exchanges can work. Email is also an excellent way to communicate, and gives you a record of your exchanges. Both are preferable to letters. Personal meetings are also important, but should be used for the most critical events, such as going over drafted papers, conferences to discuss legal strategies, and preparation for negotiations or important events during litigation.

Fourth, is an understanding of the financial relationship. There essentially are three methods by which lawyers charge clients: 1) hourly, 2) fee for service, and 3) contingency. There also are combinations which can be used in certain types of matters, such as litigation where money damages are being sought.

The hourly arrangement involves a charge by the hour for the work done, along with certain costs. Bills which outline the date of service, the person providing the service, a description of the task done, and the charge for that task, are usually sent on a monthly or at least quarterly basis. Like any other bill, reasonably prompt payment is expected (usually within 30 days). In representing businesses in litigation, a lawyer may sometimes charge an hourly rate – often something less that his or her customary rate – and then a “bonus” based on good results, such as a recovery over and above a certain sum, which the client believes represents an excellent result. Essentially, this is a “reward” for excellent work and results.

A “fee for service” arrangement is a flat fee charges for the work done. This is appropriate for short term, or one time assignments, such as a Will, defense of a DUI charge, and some family law matters. Sometimes the hourly arrangement involves a “capped” charge, which converts the assignment into a flat fee arrangement once the “cap” is reached. You should discuss with your lawyer whether this approach is appropriate for your case.

The “contingency fee” is appropriate in certain types of litigated matters in which money damages are being sought. These include: personal injury, wrongful death, products liability, medical, legal and professional malpractice and disputes with insurance companies in which money damages are sought. The lawyer agrees to receive compensation when the case is concluded after any recovery is received from a settlement or trial. Usually, the lawyer agrees to advance all costs of proceeding, or at least a fairly large share. The idea is that unless the lawyer agrees to a contingency the client could not afford to proceed, and the injury would go uncompensated. The percentage taken by the lawyer can range from 25% (in the early stages) to from 33-40%. In cases involving punitive damages claims, the lawyer and the client might agree to split any recovery of punitive damages since those do not represent compensation but are an “add on” to damages awarded a plaintiff as compensation, as a special means of punishing highly egregious conduct. Once the contingency case is concluded, the recovery is then distributed, with the costs being reimbursed and the fee computed and paid, with the balance going to the client.
While the “usual” arrangement is 33-40% of the “net recovery” after costs are reimbursed, there are some types of injury cases in which the fees are regulated by statute. For example, claims of minors are subject to a 25% maximum contingency. These types of claims are subject to court review and approval. Claims of negligence and other wrongs against health care providers (e.g. medical malpractice) are subject to a statutory contingency starting at 40% but which declines as the amount of the recovery increases to 15% of all money damages over $600,000.

The fourth arrangement results from fees set by statute. The most common example is the probate of an estate, in which fees are set by statute, and graduated based on the assets subject to the probate. These matters are closely supervised by the courts. A lawyer can ask for a greater fee or extra fee for special assignments, but these must be approved by the court. Also, in injury claims by minors, the contingency fee is set at 25%.
While we are on the subject of attorneys’ fees, I should mention some additional points. First, our system of justice follows the “American Rule.” That is, attorneys fees are borne by the litigants and are not usually awarded to the prevailing party. The English Common Law allowed shifting the responsibility of attorneys’ fees to the loser, but that approach is followed as the exception not the rule in the United States. There are statutes that allow attorneys fees to be awarded in certain types of cases – e.g. the oft maligned “class action.” Insurance “bad faith” cases allows the prevailing claimant/insured to recovery reasonable attorneys’ fees. These are subject to a) being proved, and b) reasonableness.

Another point is that any fee agreement with your lawyer should be in writing. In fact, this is a requirement of the California State Bar in all but very minor matters – less than $1000. Lawyers have pre-formatted fee agreements which they use and which follow the customary practices and legal requirements. Your lawyer will sit down with you and go through the representation agreement, including a review of the charges, which you obviously you should do before signing. Make sure you ask the questions that are on your mind. It is important to a good lawyer client relationship that these fee matters be clearly understood by you at the beginning, so that there are no disputes that interfere with your ongoing relationship with your lawyer later.

However, if a fee dispute comes up, try to resolve it by meeting with your lawyer. There can be misunderstandings, and if that occurs, do not hesitate. Ask for a meeting with your lawyer as soon as possible to try to iron out your concerns. If that cannot be done, and the lawyer is eventually terminated because of a fee dispute, there are avenues for resolution for such through arbitration, which is a less costly and more efficient process of dealing with such matters. The San Francisco Bar Association offers a fee dispute service, which is an important part of its public service.

Lastly, I want to comment on the “confidentiality” aspect of the lawyer client relationship. What you and your lawyer discuss about your legal matters is confidential as long as it is done with him or her or his staff or others who are working with you on your legal matters. That is, what you intend to be confidential remains such so long as its confidentiality is protected. That means you should not discuss with friends or others what your lawyer says to you about your matters or you say or him or her. While sometimes family is necessarily involved, they, too, should know that they are not to discuss what your lawyer and you exchange by way of confidential communications. This protection applies whether the confidential communications are by way of the phone, personal conference, mail or email. Disclosing these confidences to unnecessary third parties can lead to a “waiver” of the confidential protection that applies. As the old World War II saying goes: “Loose lips sink ships.” By the same token, maintaining confidence is important to your lawyer’s ability to serve you well and achieve the goals you wish to achieve.

Following these basic principles should lead not only to effective legal representation, but the legal services you expect and the results which are available to you in proceeding through the System of Justice with your legal counsel.

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