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This
article is published with the permission of Alex
Modelski to provide information to
entrepreneurs. It is intended to be
informational and does not constitute legal
advice regarding any specific situation. It may
be reprinted without the express permission of
Alex Modelski so long as it is reprinted in its
entirety including this title page. If you have
any questions or would like additional
information, contact Alex using the contact
information provided below.
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HOW TO SELECT AND
HIRE A BUSINESS ATTORNEY Copyright ã 2001 Alex
Modelski |
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You have
been working on an idea for a new business that
you think will be profitable. You have begun
building a team to help you make that idea a
reality. Having read last month’s article
regarding choosing a business form, you have
some ideas about the form in which your business
should operate. Now it’s time to hire an
attorney to advise you regarding entity
formation, draft Articles of Incorporation,
draft employment and subcontractor agreements,
draft and interpret commercial contracts and
licenses, assist in filing trademarks and
copyrights and possibly draft a stock option or
profit sharing plan. So, how should you go about
selecting and hiring an
attorney? |
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Determine your needs
You should
sit down in a quiet room and consider the type
of attorney you need. Will you need expertise in
different areas of law? If you need all of the
services listed above, you will need someone
with expertise in corporate law, commercial law,
intellectual property law and employment law.
Does your business include an "online"
component? If so, your attorney may need
specific experience with domain name acquisition
and protection, trademark research and filing,
privacy legislation and compliance, online
licensing, etc. Make a list of the tasks you
need performed and the types of expertise that
you are seeking.
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Small firm/large firm?
Do you want
a small firm or large? Sometimes, investors are
more impressed if you are represented by a
well-known large firm. After all, if your
company is going to be a category killer, you
should have a firm that can handle any type of
legal issue that arises. Also, adversaries may
be more intimidated by a large firm. The best
large firms tend to have a stable of experts
available in many areas of specialization. They
also have the resources to handle large
transactions and large litigation. On the other
hand, small businesses tend to find that the
large firms are more expensive, the expert
attorneys are often busy serving their larger
clients and the client will undoubtedly deal
with a myriad of associates and support staff
who will each need to be reacquainted with the
details of your business and your specific
needs. Small firms normally offer the advantage
of closer proximity, direct access to the
attorney who handles your work and lower fees.
The approach most commonly taken is for small
businesses to hire smaller firms that meet their
requirements and to transition to larger firms
as their business and their ability to pay
grows.
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Referrals
Referrals
are the best means of identifying attorney
prospects. You should ask others whose opinion
you respect or who already operate in your
chosen field of business. Tell them what types
of expertise you are seeking. Contacting
professional associations and chambers of
commerce can be a possible source. When someone
shares a name, ask them what they like about the
attorney and what they don’t like.
Specific issues to inquire about are:
- Knowledge and experience
with the types of legal issues you think you
will be facing;
- Communication—how
well does the attorney communicate and how long
does it take for the attorney to respond;
- Personality—does
the referring party "like" the
attorney and "trust" the attorney? Is
the attorney someone that the referring party
feels comfortable phoning or emailing when an
issue arises?
- Billing—Are the
fees reasonable for the quantity and quality of
work performed? Does the attorney bill on a
regular basis; are the bills reasonable and are
they itemized with particularity?
- Zeal—does the
attorney have time and the inclination to give
you excellent service and is the attorney the
type that is willing to act as your champion?
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Advertising and Web Sites
What about
advertising and web sites? Advertising is useful
as a starting point. Most business attorneys do
not advertise heavily, but some do list specific
areas of practice. While you shouldn’t
necessarily trust that an attorney’s skill
level is high in all advertised areas, at least
it informs you of the type of work that he or
she is seeking. Such ads can be found in the
phone book, web based yellow pages (with direct
links to web sites), the
Martindale—Hubbell Law Directory, ads
placed with professional associations such as
the Northwest Venture Group, Washington Software
Alliance, etc.
Those
seeking a business attorney should normally
avoid the attorney that lists areas such as
criminal law, personal injury and divorce. Those
practices are very demanding of an
attorney’s time and attention, often
resulting in business clients getting short
shrift, especially with regard to continuing
legal education. Web sites are an excellent
source of information. Firms have found that it
is relatively cheap to provide large amounts of
useful information on their sites. Many
attorneys provide excellent links to legal
resources, which can help you to at least
understand a bit of the legal landmines which
your business will have to navigate. Also, the
sites often list professional and trade group
participation. Look at these for signs of
interest and expertise.
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Interview
After
finishing your research, the next step is the
interview. If it is an interview to determine
whether you will hire the attorney, it is
normally at no charge. If you are asking for
substantive advice, you should expect to be
charged. Establish this with the attorney prior
to your first visit. If the meeting is going to
be substantive, you should bring important
documents, names, addresses, phone numbers, etc.
You should always ask which information and
documentation to bring to the meeting.
It’s
good to speak—at least by phone-- with
several attorneys prior to making a final
decision. At the interview, you should give an
overview of your business, offering general
information about the issues that you think
might need to be addressed legally. The lawyer
should give you general information about his or
her training and experience, a general
description of his typical client and then give
some idea of how he or she might address those
issues. The lawyer also might raise issues that
you might not have been aware of.
You should
get a sense for how the attorney measures up
with regard to the items listed above:
- Knowledge and experience;
- Ccommunication;
- Personality;
- Cost;
- zeal.
Don’t be afraid to ask probing
questions, but do respect the attorney’s
duty to keep certain matters confidential.
Don’t be embarrassed to ask specific
questions about the number of times that the
attorney has performed specific tasks. If you
think litigation skills are important, ask if
they have litigation experience. Get an estimate
of how long it will take to get the tasks
completed.
How does the
attorney typically communicate with clients?
Will you communicate by mail? Email? Phone? Will
you be provided with hard copies of all
documents prepared by the attorney? Do you want
to? If so, realize that there will be an
associated charge. Is the attorney technically
sophisticated? Does he or she understand your
business? This is a critical
consideration—if your attorney is to be
able to advise you on the legal risks and
potential solutions to legal problems, he or she
must understand something about your business.
An attorney that understands your business is
also more likely to be able to refer other
service providers, vendors, customers and
investors.
With regard
to cost, ask about rates and billing procedures
during the interview. How much will the attorney
require up front as a retainer? If you break off
representation, will any portion of the retainer
be refunded? Ask for an estimate of the cost of
getting specific work done. Not only do lawyers
offer different rates, but they also charge for
different things. For example: Are they going to
charge you an hourly rate for photocopying? How
do they bill for traveling?
Another
consideration is the capability of the other
lawyers in the firm or whether this lawyer
associates with others who have specialized
skills that he or she lacks. Don’t assume
that the lawyers practicing with your
prospective attorney have the skills to
"fill in". You may also wish to check
with the Washington Bar Association to determine
whether the lawyer is in good standing or has
any record of professional misconduct.
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Get
it it writing
Your
representation agreement should always be in
writing, whether in the form of a contract or a
representation letter. It should specifically
state the nature of the representation, the
retainer, fees and expenses, and every other
item that you feel is
important.
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Your
first bill
It may sound
crazy to ask to be billed. However, if you
don’t receive a bill for services within a
reasonable amount of time after the attorney
begins work, call and insist upon delivery of a
bill. Your first bill should tell you a lot
about your attorney’s progress, the
specific daily tasks performed on your behalf
and the reasonableness of the
charges.
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©2008
Alex Modelski, Business & Technology Law | |
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