Selecting the Right Lawyer
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What is a lawyer? A “lawyer” or “attorney,” sometimes referred to as “counsel,” is a professional who represents other persons or entities in the conduct of lawsuits and provides counsel and advice concerning legal rights and obligations. The practice of law consists of the furnishing of such services or advice based upon special knowledge and skills acquired through legal education and experience. This includes giving advice on any matter requiring the application of legal principles to particular facts or to a client’s purposes or wishes, preparing legal documents of any kind, and the representation of another person in any legal matter before a court, administrative agency or other governmental tribunal. When any of these circumstances exist with the mutual consent of both parties, the lawyer-client relationship has been established.
Legal training
In Alabama, only a licensed attorney may engage in law practice. In almost every instance, an Alabama lawyer will have graduated with a bachelor’s degree and successfully completed three years of study at an accredited law school. In addition, a lawyer licensed in Alabama must have passed a rigorous three-day or four-day examination on Alabama and federal law administered by the Alabama Board of Bar Examiners and must have submitted an application for licensure that includes evidence of good moral character. An Alabama lawyer must also meet annual continuing legal education training requirements to maintain his or her license to practice law.
The law is a vast body of knowledge and information. No lawyer, even one who has extensive educational training and accomplishments, learns everything about the law. The primary purpose of legal education is to teach prospective lawyers how to research and analyze legal and factual circumstances of their clients. It is understandable, therefore, that lawyers are not always able to respond immediately to legal questions without further research and consideration.
The lawyer’s role in the adversary system
Our legal system provides for the resolution of disputes under rules of law. The primary purposes of the civil legal system are to settle disputes and protect the rights and property of persons. The criminal legal system is designed to protect individuals and society as a whole, while preserving the rights of those who are alleged to have committed crimes. A lawyer has a duty to both the client and the legal system. That duty is to represent the client zealously within the bounds of the law, which must be respected. Through the process of zealous advocacy and adversarial proceedings, it is hoped that the truth will emerge and justice will be served.
The adversarial nature of the legal system is sometimes wrongly equated with abusive, obnoxious or unfair conduct by lawyers and clients. Such conduct is not acceptable in any legal context, even when emotions run high or life, property or money is at stake. Courtesy, civility and integrity are the hallmarks of the adversarial system at its best.
Common legal problems
Typically, you should consult a lawyer before you buy or sell a home, sign a contract, make a will, organize or dissolve a business, make a statement to the police or admit or deny guilt for a crime. You should also consult with an attorney before you change your family status through marriage, divorce, birth or adoption, after you have been in an accident involving injury to a person or damage to property, or when a lawsuit has been threatened or filed against you. Even a change in employment status may be an appropriate occasion to seek legal advice.
Do you need a lawyer?
It is not always easy to know whether you have a legal problem requiring a lawyer’s assistance. In a complex society, there are many situations in which legal advice is necessary or desirable. Nearly everyone at some time is faced with legal questions. Those untrained in the law may not always be able to recognize the existence of a legal problem or know how to analyze a legal issue.
The best way to determine whether you have a legal problem or need legal assistance is to ask a lawyer. The sooner you ask, the better. The longer you wait to determine whether you have a legal problem, the more likely it is that you will have fewer options or that your situation will have worsened by the time the legal issue is addressed. Lawyers frequently do not charge for an initial consultation or for answering simple questions prior to undertaking the representation of a client. Lawyers are trained to recognize and analyze legal issues, and can be expected to tell you if your problem warrants legal action.
Sooner or later, almost everyone needs to see a lawyer. Many people turn to a lawyer only as a last resort -- after the contract has been signed, or the creditor is threatening, or the spouse has walked out.
The saying that "an ounce of prevention is worth a pound of cure" is as true with legal matters as it is with regular medical checkups.
Good legal advice is one of the greatest preventive measures a lawyer can provide. Early consultation with a lawyer may prevent serious problems later on. Common situations where you should consider consulting a lawyer include:
Before buying or selling a home or other real estate
When making a will or planning your estate
Before signing a contract involving a lot of money or calling for financing
Before organizing or buying a business
When there are changes in your family status -- marriage, adoption, divorce, guardianship
When you are arrested or charged with a crime
When you are involved in an accident in which there is personal injury or property damage
When you have tax problems or questions
When you are having problems with unpaid bills or bill collectors
When you are not sure if your problem has a legal solution
Sometimes a lawyer cannot help
It is important to keep in mind that engaging the services of a lawyer is not the answer to every problem or dispute. Many problems simply are not legal in nature or have no practical legal remedy. Other matters may not be of sufficient importance to justify the expense of hiring a lawyer, or may not best be resolved through legal recourse. After analyzing the issues at stake, you may conclude that hiring a lawyer is not the right course of action. The practical availability of a solution through legal means, and the costs of retaining legal counsel, ought to be considered in relation to the nature and importance of the issue involved. The lawyer you consult should be willing to advise you whether obtaining legal representation will be in your best interest in light of the issues involved and the potential costs and benefits.
How to choose a lawyer
Just as early consultation is important in determining whether you have a legal problem, it is also important in deciding which lawyer can best deal with your particular legal issue. The selection of a lawyer should be based on several considerations, including experience, cost and convenience. A key factor should be your ability to work effectively and comfortably with your lawyer. The relationship established between you and your lawyer should be based on trust. Your lawyer owes you the full benefit of his or her legal training and experience. You owe your lawyer a full and fair disclosure of all the facts and nuances concerning your case, both the unfavorable and the favorable sides of the issue. Without these components of a good lawyer-client relationship, your lawyer cannot effectively advise and represent you.
Remember, when you hire a lawyer, he or she will be working for you. The lawyer should be genuinely interested in your problem and in giving you the best possible advice. The lawyer may not be able to accomplish everything you want because of the facts or the law that applies in your case. Many times a good lawyer will advise you to avoid court action. A lawyer should be able to explain, in terms you can understand, what he or she hopes to accomplish for you and how he or she plans to do it.
Think about how the lawyer responded to your questions, about his or her experience, and about whether you will be able to work with the lawyer in the way you would like.
Based on your initial consultation, you should consider the following factors before agreeing to hire a lawyer:
Personality -- do you get along well with and trust the person?
Experience -- are you satisfied with the amount of experience the lawyer has had with your type of problem?
Communication skills -- could you talk with and understand the lawyer easily?
Ability to pay -- can you afford to pay the lawyer according to the fee arrangements you discussed?
If you are satisfied with your answers to these questions, it is likely that a sound basis for working together has been established between you and your lawyer.
Lawyers must avoid conflicts
There are limitations on a lawyer’s ability to take action on your behalf, regardless of the fact that you may have a legitimate legal problem. A lawyer is required to decline to advise you or assist in the resolution of a matter if such representation would cause a conflict of interest, unless the potential conflict is fully disclosed and all affected parties give consent to the representation. Where a conflict of interest exists, you may need to obtain representation elsewhere. Usually, the lawyer whom you initially consult will refer you to other counsel if you so request.
Lawyers may not assist in improper activities
The nature and circumstances of a legal problem often dictate whether or not a lawyer will get involved. For example, you should not expect a lawyer to accept representation on your behalf when the lawyer knows that your motives are suspect. A lawyer should not participate in any activity that is instituted solely as a vehicle for harassment, malicious injury or revenge directed at another person, or solely as a means of obtaining a benefit or advantage to which you are not entitled. This does not prevent you from hiring a lawyer with excellent legal knowledge, experience or skills in order to maximize the possibility of attaining your legitimate legal objectives. But the hiring of a lawyer should not be used purely as a scare tactic or threat for frivolous purposes. A lawyer is ethically prohibited from accepting a representation that he or she knows is based upon such motives or participating in conduct or pursuing an objective that is unlawful or that he or she finds repugnant or imprudent.
Lawyers are lawyers
Members of the legal profession are trained and licensed to perform legal services. Clients sometimes look to their lawyers for advice in areas beyond the lawyer’s training. You should not expect a lawyer to have expertise as an accountant, investment counselor, psychologist, doctor, engineer or other professional unless that lawyer happens to have the necessary education and training. While your lawyer will seek to give you the best and the most comprehensive advice he or she can provide, it is usually not wise to rely on your lawyer for non-legal advice.
Different fields of law
Law practice, like society itself, has become increasingly complex, specialized and competitive. It is impossible for any lawyer to maintain a complete working knowledge of the multitude of federal, state and local laws, regulations and procedures. For this reason, many lawyers concentrate their practice in one or a few legal fields. Others maintain a more general practice in broad areas of the law frequently encountered by individuals or businesses. Consultation with a general practitioner may be exactly what is necessary to address a particular legal issue. The more complex or specialized the legal issue, however, the more likely the need for an attorney who is particularly knowledgeable and experienced in the applicable specific field of law. These considerations should always be weighed as a part of the decision to select legal counsel.
Legal fees
When retaining a lawyer, it is important that you establish how the lawyer will set his or her fee. This should be agreed upon before you get too far into the details of your legal matter. In determining a fee, a lawyer may take into account the complexity or difficulties involved in the work, the amount of time required, scheduling constraints imposed by the client or other circumstances, whether or not the fee is contingent, and the nature of the issues involved and the results obtained. Lawyers, like others, incur expenses to maintain their offices, provide support services, purchase materials and equipment, pay employees, and support themselves and their dependents. Many lawyers maintain law libraries and continually expand them to keep up with changes in the law. Failing to come to an agreement on the subject of legal fees and expenses early in the lawyer-client relationship can result in misunderstandings at a later stage of the relationship.
Lawyers generally charge in one of several different ways:
On a flat fee basis, for handling a particular type of matter. The lawyer may quote you a set amount or standard fee for a routine legal matter. You also usually are expected to pay court costs and to reimburse the lawyer for out-of-pocket expenses, such as travel or copying costs. For example, many wills and simple divorces are handled on a flat fee basis.
On the basis of a percentage of the amount recovered, which is called a contingent fee arrangement. This means that if your lawsuit is successful, the lawyer receives an agreed upon percentage of the amount recovered, plus out-of-pocket expenses and court costs. Cases involving personal injury are often handled on a contingent fee basis.
On an hourly basis for time spent and expenses incurred on your behalf. Hourly rates of lawyers generally depend upon the lawyer's experience and the demand for his or her services. There is no set hourly rate, and the rates vary. Many business matters are charged according to hourly rates.
On a retainer basis, where an individual or business employs a lawyer by giving him or her a down payment toward the fee for specified legal services. In return for the retainer the attorney will work for you on any matter for which you may need his or her services. Additional costs may be added to the final bill for services involving extra time and effort from the lawyer. Always request that your lawyer give a receipt to you for the advance on the fee.
Can I discuss the fee and payment arrangements with my lawyer?
In your first meeting with a lawyer, you should discuss how much your legal work is going to cost and how it is going to be paid for. You need this information to make an informed decision about how to proceed. Often, a lawyer cannot tell you exactly what the total charge will be because it is hard to estimate how much work is going to be involved. But lawyers can usually estimate the minimum and maximum limits of the fee for that particular work, or give you some idea of the problems involved and the time that will be required.
The timetable for paying legal fees depends on arrangements between you and your lawyer. Usually, lawyers require an advance payment, often called a retainer, to cover the initial work and court costs paid on your behalf. In other matters, you will be billed at the end of each month, or at the completion of the services.
You should never hesitate to discuss fees at any time during the handling of your legal matter. If you receive a statement that isn't clear to you or believe the fee isn't proper, talk it over with your lawyer. Misunderstandings about fees usually result from the fact that the client is not aware of the extent of the lawyer's work on the case. This is by no means the client's fault. If you do not regularly see your lawyer, you may understandably believe that the activities of the lawyer are limited to those which you do see. But you should remember that a lawyer, unlike a doctor or dentist, performs many professional services when the client is not present. For example, clients are expected to pay their lawyer for time spent on phone calls, writing letters, or drafting and reviewing documents.
Predicting fees can be difficult
The nature of your legal issue will influence the legal fees you incur. It may not be possible for a lawyer to determine accurately in advance the amount of the fees and expenses that will be incurred in handling a particular matter to completion. In a few types of cases, a lawyer’s fee is controlled by a statute or fixed by a court rule. In many instances, lawyers may charge according to the time spent or may have a set fee for a particular service. In cases involving the recovery of money, the lawyer may charge a fee that is a percentage of the damages recovered, if any. The value of legal services is ultimately a matter of judgment and market forces and a function of particular client needs, problems and results. It is important that you and your attorney reach an agreement concerning fees and expenses, and that you understand how you will be charged.
Client expectations
In your relationship with your lawyer, you should expect the following:
a) capable representation by an attorney who is competent and demonstrates legal knowledge, skill, efficiency and thoroughness;
b) preservation of confidences revealed in the course of the lawyer-client relationship;
c) zealous representation within the bounds of the law;
d) the right to make decisions about your case, with the advice of your lawyer;
e) information about your case or legal matter and copies of legal papers relating thereto;
f) a reasonable fee for the legal services provided and an explanation of fees and expenses, if requested;
g) the exercise of independent professional judgment, free from conflicting or compromising influences; and
h) the highest degree of ethical conduct.
Effective lawyer-client relations
The most important aspect of an effective lawyer-client relationship is trust. You have the right to expect your attorney to act in your best interest, and to advise you fully and honestly about legal matters for which you retained the attorney, and inform you of developments as they occur. Your attorney has the right to expect honestly and reasonableness from you and fair compensation for the legal services provided.
You and your lawyer should communicate and be realistic about your respective expectations, the time necessary to achieve your objectives and the fees and expenses involved. Such communications should be reduced to writing whenever possible, so they will be available for future reference.
It is important that you be an active participant in your relationship with your lawyer. You can best control your legal expenses and contribute to the efficient resolution of your legal matter by providing your attorney with complete and accurate factual information, organizing materials that you provide to your lawyer, being prepared for meetings with your lawyer and utilizing your lawyer’s time and advice wisely. The more involved and knowledgeable you are about your legal matter and your lawyer’s work on your behalf, the more you will be able to understand and assess the quality and value of the legal service you receive.
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