Interview Questions to Ask a Lawyer
Many lawyers offer a free initial consultation, although some charge a nominal fee for their time; find this out before you set up the interview. If you plan to interview several candidates, anyone who charges for that first consultation should be scheduled last.
As with every other type of financial advisor, you are shopping for trust, integrity, and ability, all of which will are hard to judge in an initial interview.
Your First Meeting with a LawyerHere are the questions that will help you get a sense of the lawyers you interview:
How long have you been practicing and in what areas of the law do you specialize?
In all financial relationships, you don't want to be a guinea pig.
If a lawyer has several specialties, ask how her workload is divided between those areas of the law. A lawyer might do real estate contracts and estate planning, for example, but her business may be heavily weighted toward the former; if you come in with a complex estate situation, she may not have the depth of experience you want, even though estate planning is supposed to be one of her specialties.
This actually happened in my own case. After moving to Massachusetts, my wife and I worked hard to find an attorney to rework our wills and protect our children. We then kept the will up to date by redoing it after several life changes. At the last of those upgrades, our attorney told us that what we needed next was some high-grade estate planning, and that his practice had become so focused on real estateâwith simple estate-planning matters thrown inâthat he didn't feel he was the right guy. Our wills would serve us for years, but when we took the next step, he figured it might be best without him. (I knew I picked the guy for a reason; his integrity stood out.)
Be sure to find out how long a lawyer has had each specialty. He may have 10 years of practice experience as an estate planner, for example, but might only have branched into elder law a year ago. Make sure he passes muster in your area of need.
Smart Investor TipBe sure to find out how long a lawyer has had each specialty. Make sure he passes muster in your area of need.
Law is not an area where you must see specific credentials to feel comfortable with a practitioner. The law degree and license speak volumes about someone having achieved the minimum standards for competency.
Still, there are some legal specialties, such as a "certified tax lawyer" or "certified civil trial lawyer." While there are major trade groups like the American Trial Lawyers Association that have developed credentials, most national specialty law groups are membership organizations, rather than education/credentialing institutions.
Thus, you may need to distinguish between whether the lawyer is a member or a certificant.
Credentials can be valuable when looking for an attorney with a particular expertise, since maintaining these designations requires continuing education and some level of field experience. Still, they are hardly a necessity because they are not uniformly administered. (Traditionally, most lawyers were prohibited from calling themselves "specialists," even if they limited their practices; some state governments continue to adhere to this outdated custom, which could put the burden on you to find someone whose practice meets your needs.)
You are looking for someone who is experienced in the kind of matters you have; if you are presented with a credential, find out the educational and experience requirements and ask to see a code of ethics, if there is one.
The one time you will want to be picky about credentials is if your lawyer is going to wear two hats on your financial team. Some attorneys, for example, also are certified public accountants or financial planners. If you intend to hire an attorney-CPA, for example, make sure she has the appropriate accounting designations; if a lawyer doubles as a financial planner, look for an advisory credential (because, unlike law, there is no minimum standard of acumen to becoming a financial planner, and a lawyers can expand into that arena without being truly qualified).
Lawyers Fees and How You'll Pay ItNow that you know the questions you need to ask when selecting your advisors, here's what you'll need to ask to figure out how much you should pay.
How are fees charged? How much are your fees and for what are they paid?
With all of the ways lawyers bill clients, you want to know specifically what is involved. You are always entitled to an itemized bill for the lawyer's services, but you would prefer to know in advance how fees are calculated.
Some lawyers are always on the clock, meaning that your call to check with a lawyer on your case sets the clock in motion, as do your few minutes of small talk with the attorney. You do not want to be racking up charges while talking to your attorney about his family. Find out the ground rules for being charged. Will a five-minute phone call show up on your bill, or is that a free part of the lawyer's service? If you are charged, what's the rate going to be? Will you pay to have copies of important papers mailed to you?
Smart Investor TipYou do not want to have the meter running while you're talking to your attorney about the youth sports team he coaches. Find out the ground rules for being charged; it will affect howâand how oftenâyou interact with an attorney.
Just because a lawyer gives you a great hourly rate doesn't mean you will get off cheaply. You might pay $1 per photocopy, $5 to receive a fax, or pay inflated tabs for secretarial work.
Lawyers really aren't supposed to profit on costs, but many do. They build depreciation, secretarial time, and anything they can think of into charges for using the copier, for instance; you could pay a lot more than the two-cents-per-page charge from the corner office supply store.
Again, there is nothing illegal about this, although the American Bar Association says that lawyers should only charge for "actual costs." Still, it's hard to complain about after the fact, because you agreed to pay the lawyer's costs.
Most lawyers do not want to sound like they are squeezing clients dry. They may waive some charges if you press them for details in advance. If you don't ask about these charges up front, however, don't be shocked if your bill comes back padded with extra fees.
Be sure this discussion also covers court costs that you might have to pay, plus any filing fees and the like. You may agree to the flat fee for preparation of a will or trust, and then be surprised to see charges for filing with the court, retitling assets to put them in the newly minted trust, and more.
How can I reduce my costs?
Find out if there are ways for you to minimize costs. In some situations, it may involve your doing the legwork to find certain documents or to drive documents around yourself, rather than relying on a courier service. The smaller a lawyer's practice, the more he or she will value your ability to do some of the menial chores on your own, and the savings will be very real.
Learn about the Lawyer's Clientele and Scope of PracticeBelow are some questions you should ask to learn about the advisor's clientele and scope of practice so that you can make an informed decision of whether you fit within that niche.
Who is your typical client?
You don't want actual names, so this question does not violate attorney-client privilege. What you want to find out is whether the average client is an individual or a business and whether the average job resembles what you need done, both in terms of the legal matters being covered and, when applicable, the dollars involved. If you have a big estate and fear lawsuits, so that you want to set up an asset-protection trust, you don't want to be working with an advisor whose idea of asset-protection is an ordinary estate plan and protecting life savings from Uncle Sam. You're looking for someone who can make you virtually "suit-proof," and the difference is huge.
While you want to be in the "sweet spot" for the lawyer's practice, understand that things change, as was just shown in the story of my own attorney. If you are not a good fit for a lawyer's practice today, you may be even further out of sync in the future, as the practice gravitates toward whatever specialty most pays the bills.
How many active cases/clients do you work with at one time?
This is another good indicator of how likely the advisor is to work on your case. If he has a heavy workload, your run-of-the-mill situation may not get the attention it deserves. Your will may be an everyday document to an attorney, but it is protection for your family, not something you want the lawyer to squeeze between 20 clients with needs he perceives as more pressing. If the attorney overpromisesâsaying you will get your documents quickly when you know there's a big caseloadâyou should be nervous.
There is one more major concern when it comes to a lawyer's caseload, namely "double billing," which happens when a lawyer goes to court for you and several other clients at the same time. While traveling, the lawyer catches up on other cases or reading and sends bills for that time to every client whose file is in the briefcase. You're paying for the lawyer's attention to your case, but it's not full attention; while the American Bar Association has long condemned this practice, it can't punish members for it.
If the caseload seems heavy, ask about double-billing and whether you get a reduction in the hourly pay rate if you are sharing time or don't have their full attention.
If you do not have the expertise to handle my case on your own, do you work with other lawyers? Under what circumstances would you allow them to take over the case?
Determine what makes a lawyer nervous enough to seek help or back away from a case.
Ideally, you hire a lawyer who is as aggressive or conservative in his or her approach to work as you are in your approach to life. If you are the conservative type who likes everything buttoned down before proceeding, you might be concerned about a lawyer who never consults with others before making new maneuvers for clients.
Under what circumstances would you simply refer me to another lawyer?
There are good and bad answers to this question.
Good answers involve a lawyer passing you on to a partnerâor even an outsiderâwho is better suited for the job or when she is too busy to give your case the attention it deserves. Bad answers are that your case is not interesting enough or not likely to generate enough in fees.
If you go to a firm to interview a senior partner and find a fresh-out-of-school rookie handling your case, that's not good. You should meet and interview any lawyer who will handle your case before signing up for the firm's services.
Under all circumstances, find out if the lawyer charges a referral fee, which means they get a feeâor a piece of the actionâfor passing you along. In most states, the ethical rules governing lawyers say that a referral fee cannot be charged unless the client is aware of the situation and each attorney works on the case and splits the fee proportionately to the work they performed. Equally important, the referral fee cannot make the total bill unreasonably high.
Smart Investor TipFind out if the lawyer charges a referral fee, and if he or she will get a piece of the action simply for passing you along to someone who is better suited to help you.
You're the one paying the bill, and you want to get what you pay for. If the lawyer uses paralegals or junior partners to do the work, you should find out just how involved your attorney intends to be. It's dumb to pay for a figurehead. You also want to find out what, if anything, the involvement of others does to your projected costs; it can push costs up or keep them reasonable, depending on circumstances.
Could I get contact details for some recent clients to use as references?
Attorney-client privilege can make this sticky sometimes, but someone who can act as a reference and say how the lawyer deals with clients will help cement your decision.
If the lawyer won't give you the names of clients, ask for professional references, perhaps the names of lawyers to whom he makes referrals. When you call those colleagues, do not identify the person who gave you his name at first, saying, "I was told you could be a reference for my attorney. I was wondering who you consider to be the best attorneys in town." If your lawyer's name comes up, then ask why the reference feels that way. If it's not on the list, ask why not.
Inquire about the Lawyer's Relationship StyleWith this information in hand, below are questions you should ask to learn about the advisor's relationship and investment style.
What are the potential outcomes of my case?
This applies mostly to adversarial situations, where the final decision could be a win, a loss, or a settlement. Before engaging an attorneyâparticularly if you are paying on an hourly rate instead of contingencyâyou want to an honest assessment of the strength of your case. This includes knowing whether the lawyer expects to settle the case or go to courtâand the plusses and minuses to each of those resolutionsâas well as whether a loss can be appealed and under what circumstances the lawyer would recommend it.
If the lawyer expects the case to go to court, ask about trial experience, as there are plenty of attorneys who almost never set foot in a courtroom.
How do you work with clients?
You want contact when it's necessary, so ask when the advisor typically finds it important to call or meet with a client, and what circumstances drive those meetings. By establishing how often and under what circumstances you will hear from the lawyer, you can decide whether that contact is sufficient for you to be satisfied.
In addition, find out what paperwork, if any, the lawyer will give you copies of. A file of these papers is good to have, in case you decide to change lawyers mid-stream.
How Lawyers Are CompensatedLord Henry Peter Brougham, a 19th-century British statesman, once noted that a lawyer is "a learned gentleman who rescues your estate from your enemies and keeps it for himself." Indeed, one reason many people fear hiring a lawyer is the cost, thinking that the only way to get good legal representation is to pay a lot of money for it. (Sometimes, those fears turn out to be true.)
Lawyers earn their keep in several different ways; more than one could apply to your situation.
Flat fees or fee-for-service payments are common when the procedure is straightforward and generally requires a routine amount of time. Many lawyers quote a flat rate on simple wills, title searches, reviewing a real estate contract, and other common practices.
Routine procedures also are perfect opportunities to use prepaid legal plans and legal clinics. The prepaid plansâsometimes offered as an employee benefitâfunction as a kind of legal health-maintenance organization (HMO), where you pay an annual fee and are entitled to a specified amount of service from lawyers who take part in the network. Legal clinics tend to offer low-cost representation, often with less-experienced attorneys than those in private practices; simple procedures such as those that generally are billed at a flat rate generally can be handled cheaply by this kind of law office.
Once you get past routine work and into cases where the amount of work involved is less predictable, chances are you will pay hourly rates for your services. This is the most common form of billing; depending on your location in the country, and the specialty of the lawyer involved, expect to pay anywhere from $40 to $500 per hour, and it could go up depending on the expertise of the lawyer, the complexity of the case, the size of the firm, and if there is other work that must be turned down to accept and adequately prepare your case. Most lawyers keep a detailed log of hours worked on your behalf, often breaking the time down into as much as tenths of hours. They may charge a higher rate for courtroom time than office or telephone minutes. Some lawyers quote a maximum, basically saying that once hourly charges pass a certain point, they will turn off the clock.
It is important for you to understand exactly when and why your lawyer is charging you. If the meter is running every time the lawyer picks up the phone, even if it is just to tell you there is no progress on your case, that might wear your pocketbook thin. Remember, too, that the lawyer's out-of-pocket expensesâfrom court fees to messenger services, faxes, copying, and moreâwill show up on your bill too, added to the hourly tab.
Asset-based or percentage fees are a sliver of the assets being managed or distributed. For example, a lawyer may earn a percentage of the assets in a will that goes through probate. The problem with percentage fees is that they aren't always commensurate with the work involved to earn them. If there are major assets involved but only routine legal workâsay you are selling a $1 million home in a straightforward transactionâyou might be overpaying for the service you get. In those situations, press the lawyer to use an hourly or flat rate for the service or ask for a cut in the percentage fee so that your bill is fair given the amount of work involved.
Lawyers accept contingent fees on cases they believe they can win, usually for a client who cannot afford to pay the other types of fee. Contingency fees only apply in situations where money is being claimed, notably personal injury and worker's compensation cases; some states forbid criminal and domestic-relations attorneys from accepting cases on a contingency basis.
If you win the case, the lawyer takes home a big cut, generally between 25 and 50 percent. Generally, the lawyer gets one-third of your winnings (many states limit the maximum allowable fee), although "sliding scale arrangements" can increase the attorney's cut if the case drags on or is appealed, or drop the percentage as the dollar value of the settlement rises.
If you lose the case, there are no winnings to split up and the lawyer gets nothing. Win or lose, however, you will owe court costs. I recently saw a television ad for a lawyer who promised that clients would "never pay a single cent out-of-pocket" to try their case. Unless the lawyer agrees to pick up filing fees and assorted court costs in the event of a loss, that statement most likely was false.
Court costs are a key consideration in hiring lawyers on contingency. You want expenses deducted from the monetary award before the lawyer's cut. Say you win a $15,000 judgment; court costs are $3,000. If the lawyer's cut comes first, they take one-third of $15,000 ($5,000); you then pay court costs and are left with $7,000 for your win. By comparison, if court costs are paid first, your net award after expenses is $12,000. The lawyer gets one-third, or $4,000, leaving you $8,000. Many contingency lawyers prefer to be paid before expenses are taken from the award, but the point often is negotiable. Be sure to negotiate it.
Retainers are monies paid to lawyers on a regular basis to make sure an attorney is available when needed. Retainers are paid mostly by individuals and companies with a regular need for service. (Many lawyers agree to take work from individuals in exchange for an up-front payment for part or all of their services; they may call this a retainer but it typically amounts to a nonrefundable advance.)
Retainers are merely a method of payment, and not a charge for service; as a result, you still must find out how you are being charged for the actual work being done. If a lawyer asks for a retainer, consider this a down payment; if you have a big need for legal services, you could outspend the retainer and face a bill down the line. Make sure you have an idea how much serviceâhours of the lawyer's timeâthe retainer actually covers.
Many legal issues come down to a test of will and nerves. You may want an aggressive lawyer, but you also must be able to live with the outcome.
For example, some lawyers are particularly tough in negotiating insurance settlements. If they can't get the desired amount from the insurer, they may walk away from a settlement and risk getting the money in court. That could tie the case up for years.
While you want someone who fights tooth-and-nail on your side, you may not want to pay the price such an aggressive lawyer exacts. Some particularly tough real estate lawyers, for example, will walk away from a house rather than giving up on the concessions they demand from buyers or sellers. Their desire to do the best deal is wonderful, but not if it costs you the dream house you had been looking for.
Hire a lawyer who is as tough as you are and who will demand nothing less than you would expect from yourself.
Smart Investor TipYour lawyer should be as determined as you are and should fight for you as much as you'd fight for yourself.
You want to make sure that the lawyer's idea of the appropriate amount of time to spend with you is similar to your own. If you need hand-holding and a call from your attorney every day, then a lawyer who calls only when there is action on the case may not be active enough. This question forges your expectations for the relationship, helping to set a standard that the lawyer will have to meet for you to feel he is living up to his promises.
How to Prepare for Trouble with Your Lawyer, Just in CaseConclude your interview with an advisor by asking about problems.
How can I terminate this relationship if I am not satisfied?
Never enter any financial arrangement without knowing how to get out of it. Depending on why you need a lawyer and what kind of agreements you signed, you may just be able to walk away. If, however, a lawyer has invested hours on you and you then pull the plug, expect some chargesâand possibly some unpleasantnessâas you head for the door.
Signs of TroubleYour relationship with a lawyer may be going sour if:
- He appears to have lost interest or stopped working on a case. Unhappy clients often complain that a lawyer is not devoting sufficient time to the case. In fact, the client might not be completely aware of the progress being made or of delays beyond the lawyer's control. Generally, this boils down to a communications issue. If the problem is more than miscommunication, write your lawyer a letter. This generally serves as a wake-up call because lawyers know it is a prelude to building a case against them for not doing their work. In addition, every case has a time limit, called a statute of limitations, within which it must be filed. And some paperwork must be filed immediately given the health and welfare concerns of the people involved. If your lawyer is in jeopardy of missing these kinds of deadlines, you must either apply pressure to get the ball rolling or simply find someone else to tackle your case now.
- Your instructions are not being followed. With the exception of doing something illegal, the lawyer's job is to advise a client of possible actions and outcomes and then take the path chosen by the client, even if that is not the direction the lawyer wants to go. If your lawyer is doing things in accordance with her own feelings, or pushing you hard to do things her way without explaining the situation so that you come to the same conclusions, question whether she respects you.
- The bill is much more than you expected or was not properly explained. You have a right to an itemized bill. You should have discussed the items ahead of time to avoid unpleasant surprises in the end. If issues arise, contact the lawyer and ask about the unexpected charges; if the situation cannot be resolved that way, contact the local or state bar association to ask about the fee arbitration process.
- You become aware of potential conflicts of interest. If a lawyer has a problem representing you because of other, existing relationships, you should have been made aware up front. He also can't work both sides of the same case without the permission of both parties; if you find out that your lawyer has breached this ethical standard, seek new counsel immediately. (Last word on conflicts: A lawyer should not represent you if your interests conflict with his own. In other words, a lawyer should not write your will if you plan to leave the lawyer property or money in that will.)
- You have not received your complete share of a settlement. If you believe that a lawyer has improperly taken or kept money owed you, it's a big problem. Contact the state and local bar associationâspecifically its disciplinary boardâif your money is not returned in short order. (Ask bar association reps about their funds for "client assistance" or "client security." These are funds put together by lawyers that may reimburse you if a court decides that your lawyer is guilty of fraud.)
You're not expecting problems, just being realistic. And just because you know how to get out of the arrangement doesn't mean there won't be complaints to settle. That being the case, find out how potential disputes will be settled.
Most state bar associations offer arbitration committees that, for a fee, settle disputes between clients and lawyers (usually over expenses). At the same time, you could resolve those matters in small claims court.
Fees represent the biggest area of dispute between lawyers and their clients; find out whether the lawyer has had this kind of problem in the past and how it has been resolved. Then determine how it will be resolved if it happens in your case, preferably settling upon fee arbitration as the most fair solution to potential problems.
Have complaints against you been filed with the bar association? Have you been sued for malpractice?
This is the kind of cross-examination that can make a lawyer uncomfortable. But lawyers know better than anyone that, well, suits happen.
I know many outstanding lawyers who have had to defend themselves from clients whose expectations were not met and who pursued the lawyer because they did not like the outcome or resolution. If your lawyer has been sued, ask what happened and how the case was resolved.
Smart Investor TipYou will have to use your intuition to determine whether past problems should send you off to visit someone else.
Where to Complain if Things Aren't Working OutIf something appears to be going wrong, start at the source and talk to your lawyer. If you don't get satisfaction there, you have several options:
- If the lawyer is in a firm, go to the managing partner. If you are in a prepaid legal plan, contact the plan administrator. In either case, the boss should try to resolve the complaint and get you the kind of representation you seek (although that still does not mean you will come away satisfied).
- Your state or local bar association can help in several ways. The disciplinary committee can answer questions about whether your complaint is legitimate. The fee-arbitration committee can help you if fees really are out of line, and may be able to help settle any disputes. And if you believe the lawyer has stolen money from you, you may pursue restitution from the bar's client security fund. (You will also want to contact the police or your local district attorney.)
- You can sue for malpractice. If the lawyer has been negligent and you have been damaged as a result, you can pursue reimbursement. (Of course, suing for malpractice involves hiring another attorney, this one involved in handling professional liability cases.)