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After practicing law for ten years,
it was a welcome surprise to get a telephone call that wasn't from a client,
adjuster, witness or another lawyer.
It was Tom Boyles, wanting to know
if I could offer advice to restaurant owners and if I would be interested in
writing some pieces on general legal topics. I was happy to say yes, hoping I
could help shed some light on things like contracts, employment issues and other
legal dilemmas that small business owners tend to run into.
Over the years, I've represented
both big and small companies on everything from forming the company to
dissolving it - and lots of things in between. The one thing that's been consistent has
been how a little advance planning by clients could have prevented a lot of
legal headaches. So, for this first
installment, we might as well start at the beginning. Here I will discuss
reasons why you should consider an attorney, finding one that fits your needs,
costs related to attorneys and information about having others pay for your
legal costs. In future articles, I will examine issues relating to employment,
contracts and other topics that keep restaurant owners awake at night. So let's
start at the beginning. Should I Even Get an
Attorney? Modern business has the potential to
generate many legal problems. This brings you to having to decide whether to
hire an attorney and which one to get. Yes, lawyers can be expensive, but the
decision to have a lawyer deal with a problem, or whether you should try to
handle it yourself, depends in part on how expensive it will be not have a
lawyer. Which, of course means you have to find out what it's going to cost
before you can make the decision to hire one at all. Initial consultations
aren't always free, so always ask if there will be a charge when setting an
appointment. Once you're there, ask if you really need a lawyer for this
problem. A good attorney will lay
out the pros and cons of action and inaction, as well as the expenses associated
with each choice so you can decide how to proceed. But, that still brings us back to
finding one to talk to. Finding the Mouthpiece
That Fits Go on down to the bottom of the
article and read the disclaimer. Go ahead. It's exactly what you'd expect a
lawyer to put in a magazine article - that what I'm telling you may not apply to
your situation so the answer to your problem could be different. You have to find your own lawyer
to advise you on your particular problem. But how do you do
that? Word of mouth and referrals are the
most common methods, but not the only ones. State bar associations can be easily
located on the Internet or in the phone book. Another excellent resource is the
Martindale directory (www.martindale.com), where you can search for attorneys by
location, areas of practice, biographical information and other factors. An
attorney's listing on Martindale may tell you how long they've been out of law
school, have links to their firm's website, list types of cases they handle and
even contain "ratings" of some attorneys based upon their reputation among
judges and other attorneys. Second
Opinions After an initial meeting, I commonly
tell prospective clients that I wouldn't trust my health to the opinion of just
one doctor and therefore, I'd get a second opinion. It's no different with a
legal problem. Visit with several attorneys to find out what sort of advice they
give, the costs involved and how well you think you could work with them. Once
you've had a chance to compare them, then you'll be in a much better position to
find a lawyer that's the right fit for you, your business and your particular
legal problem. How Much is this Going to
Cost? Lawyers typically charge fees in
three different ways - a contingency fee, a flat rate fee or an hourly rate.
Contingency fees involve paying your lawyer "only if you win" and typically are
used when trying to collect money from someone else. Flat rate fees are just
that - a set amount for a particular service such as drafting a contract. Hourly
rates are the norm in business and will likely be different for attorneys even
within the same firm as well as hourly rates for paralegals and support staff.
In an hourly rate situation, the attorney typically asks for money up front as a
"retainer," which is placed in the attorney's trust account. That money remains
yours until it's earned by the lawyer and is more or less a deposit toward fees
that will be incurred in the future. If the retainer is not used up by the time
the matter is resolved, the balance can either come back to you or remain in the
trust account for any future representation from that same
attorney.
In an hourly rate situation, its
very difficult to predict exactly how much attorney's fees will total, but your
attorney should still be able to give you an estimated range. They should also
be able to tell you what factors will affect the fee so you can be forewarned
about how changes in your case can increase or decrease how much you'll spend.
Remember that in an hourly rate situation, time is always money. You can expect
that when the attorney spends any time on your case, you will be charged, even
if it's just a phone call that you couldn't take.
Regardless of how the attorney's
fees are paid, the client is almost always charged for expenses such as long
distance telephone charges, copies and postage. This should be spelled out in an
agreement signed by you and the attorney, or at least in a letter from the
attorney spelling out the details. If one is not provided to you, ask for a
schedule of these expenses and find out how they are going to be
charged.
Make Someone Else Pay For
It
Lots of clients ask me, "Can I get
the other side to pay your fees if we win?" The answer is "maybe." In
Don't forget, thought, that there
are also other people who might pay for your legal representation. Insurance
policies can cover a broad spectrum of claims and commonly include provisions to
provide you with legal representation. Your contracts or agreements with other
people or companies might provide that in the event of a dispute, the losing
party has to pay attorney's fees and expenses for both sides - this is also
something to consider when entering into contracts and is something to watch out
for when signing them. If someone claims that you're responsible for someone
else's actions, then you might be able to get that person (or their insurance
company) to foot the bill. Once you talk to an attorney, don't forget to ask
about how you might get someone else to pay the bills. Stay Informed
One of the biggest complaints about
attorneys is that they don't return phone calls or they don't keep the client
informed. Most large companies require their outside attorneys to submit regular "status reports" of the matters
they work on. Ask your lawyer to do the same - a one page letter every so often
letting you know where things stand not only keeps you informed, but generates
an excellent record of how your case progressed if you ever need it or have to
explain what's going on. Also, when you go to the lawyer's office, be sure and
introduce yourself to their assistant or secretary and get their name. When your lawyer is out of the office or
unavailable, the office staff is a great way to stay posted on ongoing
developments.
Having to get an attorney may not be
the most enjoyable part of your business, but a little additional effort on your
part at the front end of any legal problem can help ensure that you get the
right representation. It also means that you can help yourself get back to
making money instead of spending it.
If you have a topic that you would
like to see discussed in my next installment, please email Tom Boyles at
tom@pmq.com or fax (662) 234-0665 and put "Legal Eagles" in the subject
line. – PMQ –
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