This week’s post is borrowed from the last chapter of our book, Legal Mumbo Jumbo, which was written with the same purpose as this blog…to empower individuals, investors, business owners and families, to more confidently guide the course of their legal affairs. Sometimes, taking charge of your own legal matters, such as your Florida estate planning, requires hiring a lawyer and when this is necessary, there are a number of insights that can help you hire the right estate planning lawyer to achieve your legal objectives.
This is the special edition of this week’s article…
of lawyers going to a legal convention careened off a cliff the other day, killing all occupants. It was a terrible tragedy. There were three empty seats!
The Discomfort in Having to Hire a Lawyer
Unless you have a best friend who happens to be a lawyer, hiring a lawyer can be an uncomfortable experience. Even if your lawyer is your best friend, legal matters all tend to be inherently complicated, serious, overwhelming and thereby stressful. Add to the “topical” discomfort, the fear of exorbitant fees, perpetuated by the fascination that many lawyers seem to have with dark mahogany desks and a “glory wall” replete with certificates, and you have a formula for a scenario that has not “historically” been viewed as consumer friendly.
While I cannot do much about the apparent fascination with mahogany, I can attempt to dispel some of the confusion about how to find the right lawyer to meet your needs. To that end, I will provide you with some context to interpret the legal jargon used by many lawyers and will discuss the various rules that lawyers themselves must follow, so you can begin to understand how lawyers operate. I’ll also touch briefly on the question of legal fees to provide some guidance and hopefully alleviate some anxiety.
On occasion, “taking charge” can mean that you should handle a matter yourself. More often than not; however, taking charge in this arena means that you understand how to go about identifying the legal expert in your area of concern and screening them to determine who is the right choice for your legal matters. You also will know how to communicate about what matters in a given legal subject and so be empowered, to guide your expert counsel throughout the process of resolving your legal concerns.
First, prior to considering whether to hire a lawyer, decide whether you can truly handle your legal matter yourself.
This is a tricky question, especially given the numerous resources available on the web and the vast “self-help” resources that are expanding every day. In my opinion, “legal self-help” resources can be both beneficial and dangerous. As I’ve stated throughout this book, most of the time it is advantageous for you to hire a professional who is truly knowledgeable in your area of concern. By “professional” I do mean lawyer. Although paralegals and legal assistants are often highly skilled and extremely valuable to both the lawyer and the client, the reality is most often that the depth of knowledge of the lawyer is usually much deeper, and it is necessary to keep the other legal professionals on the team from offering advice that is incomplete. So, while every great lawyer has at least one great paralegal in his employ, it is important to find that great lawyer and not default to the “paralegal” and other non-lawyer services.
With that in mind, some people who are more detail oriented, and willing to study the subject matter, may benefit more from “self-help” than others. Regardless of the circumstances, “self-help” legal services should only be used for straightforward basic matters. In the world of lawyers, even the question of whether something is basic can be difficult to determine. For example, preparing a deed may be deemed to be a basic matter. However, I have observed on so many occasions that “quit claim” deeds used wrongly for estate planning can create complications that are far more expensive than if an experienced estate attorney had been utilized in the beginning. Other documents that may be deemed “simple” are powers of attorney, wills, trusts, LLCs, Corporations and various kinds of agreements. With the guidelines offered in the previous eight chapters, I am confident that you will fare better in any “self-help” effort. However, I cannot say with confidence that you won’t omit something important that would end up costing more than the lawyer would have. They key then, as discussed throughout this book, is to locate the right lawyer and stay proactive in managing his/her expectations, your expectations, and the lawyers’ activities, goals, and fees.
Here are 10 traits of a committed lawyer that will help you as you consider who to hire.
- Hire a lawyer who focuses full time in your area of concern.
- Hire a lawyer without prior ethical problems and who takes ethics seriously.
- Hire a lawyer who listens before
- Hire a lawyer who has a local practice in your area of concern.
- Hire a lawyer who prioritizes educating and guiding clients.
- Hire a lawyer who conveys compassion.
- Hire a lawyer who is innovative and not stuck in the past.
- Hire a lawyer with a helpful and “solution minded” staff.
- Hire a lawyer who appreciates your business but is not desperate for it.
- Hire a lawyer who prioritizes communication and timeliness.
We’ve heard it said, “If you want to save money, hire a professional.” Nowhere is this truer, in my opinion, than in the area of legal services. However, I qualify this statement to say that it isn’t enough to confirm that a lawyer is competent in a given area. Hiring a lawyer is a trusting and sometimes long-term relationship, and that’s why I compiled the above list of 10 traits.
- Hire a full-time expert
There is a big difference between a Florida lawyer who does some estate planning AND a Florida estate planning lawyer…
It should go without saying that you should find a lawyer who is licensed to practice law in your home state or that in which your legal matters are concerned. You can verify whether a lawyer is licensed in your state by visiting the State Bar Association (hereafter “state bar”) website in your state of concern and search for the lawyer by name. You can also ask the lawyer for his/her state bar number, and I do recommend this to avoid name confusion. Licensure in the state means that the lawyer has passed the state bar exam and has the basic competency to advise you on legal matters in that state. So, when a lawyer is licensed to practice law in a given state, he/she can practice in virtually any area of law with the possible exception of patents and trademarks because these are federal matters and regulated by the Patent Bar examiners.
However, do you want someone who practices as a “general practitioner” in 15 different areas, or, in other words, whatever area of practice walks in the door? By “full-time expert”, I am talking about someone who focuses at least 50% of his/her time on the legal subject matter that you need assistance. The era of the general practitioner is fading quickly, in my opinion, in most geographic areas with the possible exception of very small towns. The reality is, even in small communities, you are best served by working with someone who has chosen to practice to a large extent in your area of concern. The reason you need someone focused in your area is that the law changes quickly, and legalities are becoming more and more complicated. It is difficult enough to stay current in one practice area, so it would be very difficult to provide effective legal services in more than 2-3 primary practice areas. For example, years ago a simple durable power of attorney in Florida was a few pages long. These documents now exceed 20 pages and are no longer “simple.
- Hire a lawyer who takes ethics seriously
Using the lawyer’s ID number, you can review the state bar website or call them to determine if any ethical complaints have been filed. While many lawyers have experienced a random complaint, you can inquire to determine what the outcome was? You can also consider the duration of the lawyer’s practice and all of this will help you to determine if the lawyer is trustworthy. You need to understand that every lawyer takes a professional responsibility examination and is required to take ethics credits as part of the continuing education requirements set forth by the state bar. A lawyer owes the client a specific set of ethical duties that include (but are not limited to) communication, competence, diligence, zealous representation, and confidentiality. The lawyer’s ethical duties are more expansive and, in some ways, above and beyond what is required under the legal malpractice laws, and a lawyer who fails to abide by these ethical rules can be subject to discipline by the state bar.
- Hire a lawyer who listens
This trait might sound obvious and yet I’ve talked with many clients who became very dissatisfied with the “relationship” aspect of their prior legal representation, and so I mention it here. I repeat, your relationship with your lawyer is all about a trusting, confidential relationship. Would you visit a priest who doesn’t listen to you? In the same way, I highly recommend that you consider, during your initial consultation, whether you lawyer is actually listening and considering your concerns before speaking. Even if this doesn’t appear to be an issue in your first meeting, it may become a major concern later. In my experience, the lawyer who is seeking your business will be most likely to listen during the first meeting and less so later. This is a bit like dating and you need to be on your toes to determine whether you’ve found a true professional who will listen. This does NOT mean that the lawyer needs to necessarily agree with you because; simply put, he or she may know a better path. However, the true professional who knows a better way can still consider a client’s perspective in hope of gaining an even better understanding. You get my point. Even lawyers have two ears and one mouth…unfortunately, some experts forget this simple idea. Your experience with your lawyer will be so much better if you can be heard, the simple act of listening shows maturity and wisdom on the part of the lawyer.
- Hire a lawyer with local expertise and connections
State law expertise is always critical for practice areas such as corporations or estate planning. For most kinds of legal matters, local county expertise is also important and for some practice areas, it is absolutely critical. In areas such as divorce and family law, it is critical to find a lawyer who practices regularly before the courts in your jurisdiction, and, preferably, you would want someone who has connections in the community with visibility before the local judges, etc. Other practice areas, such as elder and Medicaid law in Florida, require that the lawyer is well versed in both the state laws as well as the local county practices for recording and title matters. Depending upon the practice area, it may be extra helpful if the lawyer is acquainted with the local county officials and/or employees.
- Hire a lawyer who prioritizes educating and guiding clients
Whether the lawyer knows it or not, part of his/her job is to educate you as the client, concerning the subject matter, risks, options, etc. Some lawyers have a true passion for client education and contribute greatly through, web tools, seminars, videos, and publication of articles and books for the general public. Other lawyers tend to focus on educating other lawyers, and this is okay also because they are committed to making sure that the public is well served and protected. You’ll know in your initial consultation whether the lawyer is committed to taking the time to educate you on your area of law and present various options. Beware of the short, clipped conversation where minimal information is been offered, especially if you’re paying for the consultation, but even in a free consultation, you should feel as if the lawyer is imparting useful information that will assist you in making the right decisions.
- Hire a lawyer who conveys compassion
I liken this trait to a decision of whether to work with a medical doctor. In my experience, the mark of a true professional is whether, despite having visited with thousands of clients, still understands the difficulty that a client may be facing. Too often, practitioners can become callous after having assisted numerous clients in walking through difficult circumstances. Unfortunately, these practitioners can cease to become effective when they lose their compassion, and the client becomes nothing more than a number. Watch for this compassion in the lawyer’s eyes and you’ll have a good sense of how the relationship with this lawyer will be in the long run.
- Hire a lawyer who is innovative and not stuck in the past
Years ago, in the estate-planning world, estate planning with revocable trusts was not a common practice. So, lawyers just kept doing the basic last will and testament for years, particularly in the midwest and often where large tracts of farmland were concerned. As a result, many farm families expended large sums of money to have probates completed when this could have been easily avoided. Simply put, estate lawyers at that time were unfamiliar with the new idea of the revocable living trust and did not innovate for the benefit of clients. In my experience, this problem is of particular concern when lawyers practice part time in a certain practice area and are unable to keep abreast to developing changes in the law. An important example of this kind of innovation is doing estate planning for digital assets in Florida and other states.
Another area of innovation using technology to serve clients. Beware of the lawyer who continues to rely on a phone system and printer copier from 1978. Why should this be of concern, you may ask if the lawyer is otherwise qualified. Although it might seem minor, the tools that are available nowadays allow the lawyer to be more efficient with their own time as well as yours. For example, scanning and e-mailing documents are common practice as is working with various “cloud-based” technologies that are designed to enhance the client experience. Arguably, if a lawyer is at least somewhat up to speed with technology, perhaps they are pursuing a path to retirement and may not be up to speed in other areas of the law. Also, a lack of technological advancement suggests that the lawyer may not be supported by a team of professionals, and this ultimately can impact the client by inefficiency, difficulty coordinating with the lawyer and even missed deadlines.
- Hire, a lawyer with a helpful and solution oriented
You may find that the most valuable aspect of your lawyer’s services is his/her paralegal. Lest you think that I’m reversing my previous position about how essential it is to find a legal expert who is a licensed lawyer, stay with me because that isn’t the case. The licensed lawyer is critical to oversee the in-depth legal side of your matters and, of course, only a licensed lawyer can appear in court. It is EQUALLY important to have a talented team of administrative experts to facilitate the work actually getting done and, in my opinion, the ones that get the work done most effectively are always the administrative assistants and paralegals. Also, it has been my experience that the paralegals often know more about the local requirements when handling matters such as probate administration in Florida or titling real estate assets with the local recorders office, filing fees, title issues, etc., than the lawyer does and this knowledge is invaluable to the client.
- Hire a lawyer who appreciates your business and is not desperate for it
Don’t buy into the B.S. about the lawyer either “accepting” or “not accepting” new clients. Out of every 10 lawyers, 9 are always accepting new clients to the same extent that they are accepting new money. While there may be exceptions where a lawyer is retiring or law firm is strictly representing “institutional clients, don’t be fooled into thinking that hiring a particular lawyer is a rare privilege. It is important to hire a lawyer who is interested in earning your trust and your future business. Otherwise, you may be headed for a situation where “you get no respect”, and this relates to high fees and poor communication. On the other hand, I advise you to avoid a lawyer who is seeking to obtain your business at all costs. Beware of lawyers who offer exorbitantly low rates or who have “free” all over their marketing materials. Most true professionals have a sense of what their services are worth to the clients while also understanding that the client’s trust and confidence is highly valuable.
- Hire a lawyer who is organized and timely in communications
Perhaps I threw this in because I wanted a number 10, and yet this is a very important consideration. Usually, upon entering a law office, you can observe whether you’ve arrived at an efficient, client-centered business as opposed to a sea of files and paperwork. I have of course observed both kinds of law offices, and my overall impression is that things get lost, and clients suffer when a lawyer is not organized. This is also indicative of the efficiency of the lawyer’s staff because a good team will generally help the disheveled lawyer clean up his/her act. Timeliness follows, and I suggest looking into the lawyer’s marketing or asking the lawyer what is his/her policy for returning client phone calls? Normally, 24-hour response time for phone calls and e-mails should be minimal. I also suggest asking about the policy for communicating during the process or updating as to new developments in the matter. Predetermined weekly meetings or monthly updates may be advisable depending upon the legal practice area.
A note about legal fees…
Legal fees are a major concern for many people. I believe that the concern over legal fees is based on the public perception that lawyers are inherently very expensive and that legal fees are hard to predict. Lawyers have historically perpetuated the concern by sending out bills for even the briefest of discussions. While there are some fair reasons for stringent legal billing practices, many consumers have been jaded by the “nickeling and diming” approach.
That said, I didn’t include fees in the top 10 traits because I don’t believe that the fees make or break the lawyer. I do recommend a value based flat fee billing system for estate planning. However, in my experience, there are terrific lawyers who are expensive and terrific lawyers who are cheap, albeit the former is more common than the latter. The important question is whether the lawyer is clear and precise about the fees and you are comfortable and clear about the fee arrangement. This is an area where the client needs to be very direct and ask for clear feedback in writing.
This is an updated version of an original post dated November 17, 2016.