Finding a Lawyer
Are my conversations with a lawyer confidential?
The so-called "attorney-client privilege" applies to communications made in confidence between a lawyer and the client for the purpose of obtaining or giving legal advice or services, and permits the client to shield qualifying communications from outsiders. The privilege exists because it promotes the use of legal representation by assuring clients that they may freely confide in their attorney without concern that such confidences may be divulged to others.
As the definition of attorney client privilege implies, however, there are limitations as to what information may be withheld from outsiders. For instance, if a person were nervous about going to see a lawyer and asked a friend to accompany them and sit in on the conference, the subsequent communications with the lawyer would not be "confidential". This is because, as the attorney client privilege states, someone else was present in the room. A third person can be present during these proceedings if required, such as serving in the capacity as a translator, and the attorney-client privilege might still apply. Also, the communication must be made for the purpose of "obtaining or giving legal advice or services." Thus, if a person tells a real estate broker, who also happens to be a lawyer, about a hidden defect in their house that they did not believe would be uncovered by the buyer's inspection, they may be required to disclose the substance of the conversation unless it can shown that the conversation with the broker occurred in his capacity as a lawyer and not a broker.
(Courtesy of Association of the Bar of the City of New York)
Why isn't my lawsuit moving faster?
Regardless of how fast an attorney may wish to proceed with a case, its movement through the court system depends on many uncontrollable factors, among them: the opposing side's willingness to provide documents and witnesses; the aggressiveness of the assigned judge's discovery schedule; and motions made by your attorney and the opposing side and how quickly a decision is made on any motion.
(Courtesy of Association of the Bar of the City of New York)
What is a summary judgment motion made against me?
This is an application by the opponent, who believes that the law and facts supporting their case are so strong in their favor, that the case should be dismissed. This motion can be granted only if there are no open questions for a jury to decide as to the elements of the claims being made by both sides and damages being sought. The party moving for summary judgment must show the Court, through its attorneys' statement with cited legal cases and usually an expert's sworn statement, that there are no facts needed to be presented upon which the case could be proven against them.
Your attorney must oppose the motion by showing: (1) that the adversary, in their papers, failed to eliminate open questions as to the claims or (2) through the attorney's client's papers, including their personal statement, those of their expert's, and the attorneys' statement with cited cases, that there are open questions whether the claim may be proven. It is not required to actually prove the case on this motion. And the judge is not allowed to weigh competing facts in deciding the motion; only a jury is allowed to decide the facts. The objective, therefore, is to defeat the motion by showing that there are still open questions for a jury to decide.
(Courtesy of Association of the Bar of the City of New York)
When do I need a lawyer?
That is a hard question to answer, and many people discover too late that they should have consulted with a competent lawyer before:
(a) entering a business deal;
(b) selling or buying a business;
(c) buying or selling real estate, including a residence;
(d) attempting to give away valuable property or write a will;
(e) dealing with a relative's estate; or
(f) becoming involved in any activity where key assets or liabilities are at stake.
While this may sound like a complex list, it barely scratches the surface. The best rule of thumb is this: if it feels like an important activity you are about to engage in, it may be well worth your while to talk to a lawyer before getting involved. If you're still not sure, call your local Bar Association Lawyer Referral Service and one of their trained legal interviewers should be able to assess whether it would be appropriate at this time to meet with an attorney, or whether the information you need could be obtained elsewhere.
How do I find a lawyer?
There are several ways. Talk to friends and compare notes as to their experiences. Often that will lead you to a good lawyer. If you have no one to consult with, call the local Bar Association to see if they have a Lawyer Referral Service. Most Bar Associations do and will be happy to either give you the name of an attorney in the appropriate area of law, or schedule an appointment for you with one of their participating attorneys.
Soon, iLawyer.com will give you the opportunity to arrange a quick, convenient and cost effective referral online with a lawyer screened by a participating Bar Association. After choosing your county, it will takes only a short time (usually within one business day) to be matched up by a participating Bar Association with an attorney who has been screened in the appropriate subject area relating to your case. There is no charge for the first consultation if it is a personal injury or workers compensation case, or if you are low income and qualify for reduced fee services.
Do lawyers specialize?
Yes. Frequently, a lawyer will have a particular area of practice to which he/she devotes considerable time and, as a result, develops specialized knowledge in that area. Examples include attorneys who do estate planning (but who do not handle personal injury cases), or vice versa. Many legal problems can be handled by a "general practitioner," but often a matter should be handled by a lawyer who specializes in that particular area. A common example is a dissolution of marriage case, which most often is handled by a domestic relations specialist. In many states, the bar offers official certification for certain areas, such as family law (domestic relations); estate planning; worker's compensation; taxation; criminal law.
If I go to another state, do I need a new lawyer?
Usually, the answer is yes. This is due to the fact that lawyers are licensed to practice in a given state, and if they go into another state, it is illegal for them to practice law in that state without first getting a license to practice there. Thus, if you have a matter that crosses state lines, you may need to have a separate lawyer in each state. Although most attorneys are licensed to practice in only one state, it is not uncommon to find attorneys who are licensed to practice in several states. Your local Bar Association Lawyer Referral Service may be able to assist you in finding a lawyer who is licensed in more than one state and who practices in an area of law appropriate for your legal problem.
What are the different types of fee arrangements?
In general terms, there are three types of fee arrangements:
(1) Hourly Fees, (2) Contingent Fees, and (3) Flat Fees.
An hourly fee is exactly what the term implies: you pay by the hour. That is, the lawyer bills you each month for the time he/she has spent on your matter and you pay based upon an agreed upon hourly rate, such as $150 per hour. One reason hourly fees are quoted is that in many cases it is impossible to know how much work will be involved at the outset, and the parties mutually agree that the fairest way to proceed is for the work to be compensated on an hourly basis, sort of like a contractor working on a time and materials basis.
A contingent fee is vastly different from an hourly fee. Basically, a contingent fee depends on the outcome of the case. It is contingent on the lawyer being successful. The most common type of contingent fee matter is a typical personal injury case, where the lawyer is not compensated unless he/she recovers money for the client. If there is a recovery, the lawyer's fee is an agreed upon percentage of the outcome - for example a one-third contingency fee would entitle the lawyer to keep one-third of the recovery. Sometimes, a contingent fee will fluctuate depending on the stage of the case. An arrangement might call for a one-third contingency fee if the matter is settled before a trial date is assigned; forty percent if it settles after a trial date is assigned, but before the case actually goes to trial; and fifty percent after trial. (This is just an example. There is an unlimited universe of possibilities.)
A flat fee is a specific rate, agreed upon in advance, for a given project. A lawyer might agree to charge $500 to prepare a deed, $750 for a will, and so forth. The hallmark of a flat fee is that it doesn't fluctuate. It is not contingent. And it does not depend upon the result obtained.
Are fees negotiable?
Yes. The client should know, and in many states lawyers are required to advise, that legal fees are negotiable. If you do not like an attorney's fee proposal, you can ask to negotiate it. If the lawyer does not negotiate to your satisfaction, you have the right to go elsewhere to obtain your legal services.
How do I terminate a lawyer if I don't like him or her?
As the client, you have the absolute right to terminate a lawyer's services. The only requirement is that you communicate to the lawyer that the relationship has been terminated. The best way to do this is in writing. If you want to have the file transferred to another lawyer, you should instruct the previous lawyer in writing as to where to send the file. Most State Bar Associations hold that the client is the owner of the file and has the right to have it transferred to counsel of his/her choice. The lawyer has no right to withhold the file from the client. If you are having a problem with your previous lawyer not releasing the file to you or to your new lawyer, contact the Bar Association Lawyer Referral Service where you received the lawyer and ask them to contact the lawyer for you. They will be more than willing to provide this service. If you did not receive the lawyer through a Lawyer Referral Service, then you must complain to the State Bar.
Many fee arrangements provide that the lawyer, too, can withdraw from a lawyer-client relationship so long as the withdrawal does not prejudice the client. "Prejudice" in this case means that the attorney who withdraws does not do so at the last minute, on the eve of trial. The withdrawal must be in such a manner that the client has a reasonable opportunity to get a new lawyer.
In the case of a withdrawal, the client may owe the attorney fees, either based on the fee agreement or on a "quantum meruit" basis. (Quantum meruit fees are based upon the reasonable value of the attorney's services. Such a determination can be complicated, and the point to remember as a preliminary matter is that if you discharge your lawyer - or even if the lawyer withdraws - there may still be some fees owed.)
How do I resolve a dispute with my lawyer over his fees?
One thing you can do is agree at the outset that any fee disputes will be arbitrated. This can be done before a local Bar Association panel, or pursuant to a private arbitration administered by a private firm (such as the American Arbitration Association). Unless there is an arbitration clause or a local arbitration program mandated by the Bar Association, you may be required to file a lawsuit against your lawyer to resolve the issues.
If you received the lawyer referral through a Bar Association Lawyer Referral Service, either through this web site or by calling the Lawyer Referral Service directly, you should contact that Bar Association to discuss the problem you are having with the attorney to whom you were referred. Each Bar Association which meets American Bar Association standards has a review mechanism in place to recieve and review complaints, and to suspend or remove attorneys if necessary. One of the main advantages of finding a lawyer through a Bar Association Lawyer Referral Service is that the Lawyer Referral Service will be there for you in the event of problems which may come up between you and your attorney. If you find your lawyer by some other means, for example through the Yellow Pages, then there is no place to turn except to the licensing authority, i.e., the attorney's state bar association, which has a procedure for investigating matters of attorney misconduct.
If you would like to arbitrate the fee dispute, but are not sure whether your agreement with your attorney provides for arbitration, contact the Bar Association for the county where the attorney practices to ask if they offer fee arbitration. If they do, then arbitration may be mandatory for the attorney if you request it.
What every client and counsel should keep in mind is that a voluntary resolution of a fee dispute is far better than a litigated resolution. These are matters that can, and should be settled voluntarily, but if often takes the help of a third party arbitrator or mediator to facilitate the process.
What is the best way to communicate with my lawyer?
Pick up the phone and call him or her. That is the most immediate, direct way to communicate. If there is a problem, you may need to write a letter or send an e-mail message. The point is to keep the lines of communication open at all times. If there is a problem communicating, such as, the attorney never returns your calls, it may be an indication that you should seek out another attorney to handle your problem.
How do I complain if I believe my lawyer has acted improperly?
If you received the lawyer referral through a Bar Association Lawyer Referral Service, either through this web site or by calling the Lawyer Referral Service directly, you should contact that Bar Association to discuss the problem you are having with the attorney to whom you were referred. Each Bar Association which meets American Bar Association standards has a review mechanism in place to receive and review complaints, and to suspend or remove attorneys if necessary. One of the main advantages of finding a lawyer through a Bar Association Lawyer Referral Service is that the Lawyer Referral Service will be there for you in the event of problems which may come up between you and your attorney. If you find your lawyer by some other means, for example through the Yellow Pages, then there is no place to turn except to the licensing authority, i.e., the attorney's state bar association, which has a procedure for investigating matters of attorney misconduct.