This guest post was submitted by Kristin Crone, Esq. from UFAN (United Foreclosure Attorney Network.) She is a California based attorney so the links given are for California but every state has a Bar Association and a quick search for your state Bar will lead you to the appropriate resource for you.
While the advice given is about a mortgage issue, it is also applicable for many other situations as well.
How to get the best out of your attorney-client relationship
Steve Rhode asked me to give some advice to distressed homeowners about how to find a good attorney. I think this is a very important topic with as many groups as there are purporting to help homeowners. There are some groups out there who genuinely want to fight for homeowner rights and not simply make a quick buck. Here’s my best advice on how to find the good guys.
First, everyone should know that there are no guarantees in the law. The law is often open to interpretation and arguments can almost always be made that one person’s fact scenario should be differentiated from another. There is even a California statute (Business and Professions Code § 6157.2) that states in pertinent part: “No advertisement shall contain or refer to any of the following: (a) Any guarantee or warranty regarding the outcome of a legal matter as a result of representation by the member.”
Go into litigation knowing that you are signing on for a fight that you may or may not win. You are hiring an attorney to fight for your rights. You want to find someone who will zealously represent you. It’s my opinion that, if an attorney gives you a guarantee, you should turn around and walk away. That isn’t an honest representation of what you can expect.
Some firms and attorneys will give you a “money back guarantee.” I don’t know that there is anything legally wrong with this (I haven’t really researched the issue). But, it doesn’t make a whole lot of practical sense to me. You can’t guarantee a win, but you’re going to take the money up-front and then return it if you lose? Why not just work on contingency? I would look for someone who is honest about the unpredictable nature of litigation instead of relying on someone selling you a “money back guarantee.” The truth is, by the time the case is decided they likely will have spent your money anyway.
Second, there are many aspects of a firm/attorney that will play into finding the right fit for you. There is an old saying that I believe has some merit: “Find a young doctor and an old attorney.” This is strange advice coming from me as I am a new attorney. But, I believe it has merit. There is much that experience brings to the table in the law. You can only learn so much from books and study. Because I understand this, I hire several consultants with over twenty years of experience and I listen to everything they say. There is simply no substitute for experience in this field.
That said, experienced attorneys are often far more expensive than young attorneys. A young attorney may be more affordable to you. And, there have been brand new attorneys who have had very big successes. If you find yourself in a situation where your pocket book tells you to hire the young guy, take the time to ask the young attorney if he/she associates with more experienced attorneys. Ask if he/she is a member of professional organizations and if he/she regularly attends meetings. Does he/she participate in online attorney forums. All of these are great resources for young attorneys. An attorney truly dedicated to fighting for your rights will utilize these kinds of resources.
You’ll also want to pay attention to a firm’s size. If you need a lot of personal attention, you might do better with a small firm or a solo practitioner. Whether you go with a small firm or a large firm, you’ll want to ask them what their average return time is on client calls. At UFAN, we tell our clients to give us 24-48 hours to return calls requesting status updates. If the call is more urgent, we generally will get back with the client the same day. If you are an especially nervous nelly, you might want to work with a firm that gives you an emergency line or a cell phone. Prior to starting UFAN, I worked in a small partnership and often gave my clients my cell phone number. This might be a better arrangement for you if you can find an attorney willing to work with you in this manner. Again, however, this kind of service may be pricier. In any case, it is always best to shop around and find an attorney that is a good fit for your needs.
As a side note: One of the requirements of the ethical rules is that an attorney communicates with his/her clients. If you try to reach your attorney, have given sufficient turnaround time for a reply, and cannot get a response, there may be a problem. First, check to ensure you have the correct contact information. You can check the California State Bar website as well. The web address is www.calbar.ca.gov. Attorney contact information should be on the profile. If your attorney is ordinarily great at returning calls and communicating, perhaps there has been a family emergency or he/she has been in court all week. Attorneys are people too and things sometimes come up. But, really, you should not have to wait more than a few days for status. If you regularly have difficulty communicating with your attorney, I would consider terminating the relationship. If the problem is particularly troubling, you may want to report the problem to the California State Bar at the website noted above. There is a toll-free hotline to report attorney conduct listed on the website.
The final word of advice I have on finding a legitimate firm is to be aware of how you come into the firm. Many distressed homeowners are now aware of allegations surrounding attorney Phil Kramer and his associates. A simple rule of thumb may have avoided much of this trouble: do not pay one person for services to be rendered by another. Let me explain. With the traditional law firm format, you would hear about the law firm through advertisement or word-of-mouth – or maybe the firm has made a name for itself and it is recognized for the kind of service you need. You call the firm directly and pay the firm if you decide to hire it for services. With the Kramer style format, you may receive a mailer for one business (or maybe a mailer that doesn’t even name a business), call in, and be informed of services with another business completely. Here’s an example of what I’m talking about:
- Client gets a mailer (or call) from Home Mortgage Group 1. Client calls the number on the mailer and Jane picks up the phone. Jane asks Client a few questions and then tells her all about Law Firm A and all of the great things they are doing for clients just like Client. Jane tells Client he/she can get into the Law Firm A litigation for the low price of $5,000 payable to Home Mortgage Group 1.
This should send up a big red flag! Why would Client pay Home Mortgage Group 1 for services with Law Firm A? If you want to be a part of services with a law firm, don’t pay anyone until you speak with someone at the firm that will be providing service. And, pay the people who will be providing services – never pay someone else.
There is a small caveat to this advice. Occassionally, law firms will work together to provide services. You may contract with one law firm for litigation. That firm may contract with another firm to actually litigate the case. Because you have contracted with a law firm to provide legal services, the law firm is held accountable for the provision of those services. It is common for firms to contract with each other. The ability for the firm to contract out services to other attorneys or firms should be covered in the contract you sign for services with the firm. See the discussion of retainer/fee agreements below.
There are all kinds of rules associated with lawyer advertising, but those are for another post. For now, if you are dealing with an overly pushy sales person, you are in the wrong place.
There are some valid reasons for an attorney to push a client into taking action right away. The main reason involves applicable statutes of limitations. Legal actions often have a time limit for enforcement. If you wait too long, you may lose your right to bring a claim. But, there’s a difference between someone who says, “If you want to bring a claim, you will need to do it by X date,” and someone who says, “you need to sign here right now even before you’ve had a chance to ask all of your questions.”
A good attorney will try to provide you with all of the information you need so that you can make an informed decision on the right course of action for you. Many attorneys charge for providing you this information in your initial consultation. I 100% stand behind charging for an initial consultation. A good consultation takes a significant amount of time and often involves rendering legal advice. Whenever an attorney gives legal advice, he/she puts his/her license on the line. And, the attorney is providing a service. Charging for this service is legitimate.
Whether or not you pay for a consultation, make sure the person performing your consultation is a licensed attorney. Get the name of the person with whom your consultation is scheduled and look him/her up on the state bar website (www.calbar.ca.gov). I would also ask the attorney for some background information when you begin the consultation such as: how long have you been practicing in this field and what kind of success have you had thus far? Sometimes, an attorney may say that he/she hasn’t been practicing in the field long enough to have success. This isn’t the best answer you could hope to get, but at least it’s an honest one. I also applaud attorneys that are willing to say, “I don’t know the answer to that question, but I will look it up and get right back to you.” It has always been my opinion that an attorney who seems to have all the answers is probably not being completely honest with you – unless you are dealing with someone with a long history (10+ years) of success in cases just like yours. Even then, the attorney may not have all of the answers.
It is of the utmost importance that you trust your attorney. If you are in a working relationship with an attorney you do not trust, the relationship will not be good for either the attorney or the client. Try to find a place where you can build a relationship of trust with at least one attorney at the firm. When you contact the firm, ask for the same person. Read what I wrote above paragraph and find an attorney who will be honest with you about the nature of litigation and the extent of his/her experience in the field. You are, to some degree, putting your life and your funds in this person’s hands. You need to believe that the attorney will honestly discuss your case with you.
When you hire an attorney, the attorney will ask you to sign an agreement for services. Sometimes this is called a retainer or a fee agreement. This is the contract between you and the attorney. As with lawyer advertising, there are a lot of rules governing contracts between attorneys and clients. These rules also extend to the fees attorneys can charge and the handling of funds. An in-depth discussion of these rules is not fitting for this post. Here are the most important things you should know:
Non-refundable fees: There are only a few specific ways in which an attorney can charge a non-refundable fee. If you ask an attorney to set aside a specific time to work on a legal issue for you, the attorney can charge a non-refundable “true retainer fee.” This is not usually the case. If the attorney is not setting aside a specific time on his calendar to work only on your issues, most of the fee is likely refundable.
Calculation of Earned Fees: If you have paid an attorney a significant amount of money to provide you with a service and that service has not been completed, you should be able to get a refund for any amount of the fee you have paid that has not yet been earned. How the attorney determines what fees have been earned will depend on the terms of your agreement. There may be flat fees associated with certain milestones of the representation. For instance, the agreement may state that $1,000 has been earned with the filing of the complaint. Or, the agreement may indicate hourly fees and other charges that may apply. So, the contract may state that the attorney gets paid $350/hr. In the second scenario, once the attorney has billed three hours, $1,050 has been earned.
The fee agreement may be difficult to understand, but it is important to understand the terms to which you agree before you sign. Ask the attorney to explain the terms of the fee agreement. If the attorney will not answer your questions regarding the fee agreement, go to someone who will.
Other Terms: This agreement will also cover all of the services the firm has agreed to provide. Furthermore, it should discuss how the firm will provide these services. Commonly, there will be a clause that allows the firm to contract with other professionals when necessary. As discussed above, it is common for firms to contract out some services – such as litigation.
I mentioned above that attorneys are required to communicate with their clients. I am always surprised how often I have difficulty reaching my clients when I need to communicate with them. It is paramount to an effective representation to be available to communicate with your attorney. Many times throughout a representation, questions will arise. In order to get the facts he/she needs, an attorney must be able to contact his/her client. Provide a good contact number. I once had a couple who gave me the husband’s cell number for contact. We tried to reach these clients nearly every day for a few weeks to no avail. Finally, we terminated services with the clients because we were unable to provide an effective representation under the circumstances. We mailed a letter of termination describing our attempts to contact the clients at the number provided. The wife called in when she received the letter and explained that her husband never answers calls he does not recognize and does not check his voicemail. We confirmed with her that the husband’s number was the one provided and she confirmed. DO NOT DO THIS! Provide a number where you can easily be reached.
State Bar Referral Service
The California State Bar has at least one attorney referral service. Unfortunately, new firms and attorneys are not eligible for this service. You may speak with a good firm/attorney who is not eligible to be listed on this referral service. But, if you are looking for an attorney this is a good place to start. I believe you can find a link to referral services on the state bar website: www.calbar.ca.gov.