HANFORD — Over the years, two small law firms in this town have generated more questions from readers about attorney fees and billing practices than any other we have seen, and this column has reviewed bills from across the country.

For things that are normal overhead — customarily covered by an hourly fee — these lawyers would charge extra, such as: “Discussing your case with my secretary, 30 minutes. Review of File — 45 minutes. Reviewing your file with my new associate and paralegal, 1 hour.”

On cases where nothing was happening (confirmed by examining the court’s file) “Review of File — 1 hour” would appear on a bill every six weeks. With several clients, over half of the retainer was cannibalized this way.

Now, you don’t want to see your lawyer standing by the side of the road with a sign reading, “Will Give Legal Advice for Food.”  If an attorney is competent and knows how to run a business, then it’s not that difficult to earn a good income. Note: The operative word is earn, not steal.

But when a lawyer’s moral compass is Gordon Gekko, and he or she lives by the motto “Greed is Good,” then clients become victims of predatory billing practices. This column has helped our readers stand up to these guys, saving thousands of dollars, and it would have been easy to conclude that one of them was up to it again when we received this email:

“Our attorney is handling a real estate matter and I phoned to check on how the case was coming along. Later, his bill arrived, and in addition to other items, there was a $150 charge for that telephone conversation. Is it reasonable to be billed for simply asking about the status of our case?”

‘Time is the Lawyer’s Inventory’

As we would learn from New York attorney Seth Rosner — regarded as one of the nation’s most respected experts in legal ethics and professional responsibility — the answer to the question is: Yes – No – It Depends.

“That truly is a serious answer,” Rosner explained. “Clients need to know what is happening with their case or, for example, if a draft of their will or contract is ready. Questions which can be answered briefly should not be billed.

“But often it isn’t a question that calls for a yes-or-no type of answer, as the client asks for an explanation, or provides information in response to the lawyer’s request. Before you know it, half an hour is gone,” he points out, and next highlights the difference about law practice from most any other line of work:

“For a moment, let’s think of a Lowe’s or Home Depot, and the enormous inventory of things which they sell to generate the money which pays employee salaries, heat, air conditioning, rent, computers, all the same things which lawyers have to pay for as well.

“But our inventory isn’t stuff; rather, it’s time. We sell time, advice, knowledge and information. Whatever result the client is looking for, the attorney-client relationship is all about time. But often what the client expects goes well beyond what the lawyer understands, so this needs to be addressed when the attorney is hired,” he maintains.

A clear retainer agreement is important

“In general, where attorney fees are expected to exceed a certain amount — for example, $1,000 in California — a written fee agreement is required. This is also known as a retainer or engagement agreement.

“Clients typically have greater expectations for work than what the lawyer thinks. For that reason, the agreement must define as precisely as possible the scope — what services the lawyer will perform — and just as important, services which the lawyer will not, such as filing an appeal. And it is extremely important to state how the bill will be calculated.

“It is critical that the written retainer agreement be in clear language.” Rosner stressed.

“While it is a business transaction, an attorney-client relationship is different from virtually all others. It must be based on truthfulness, trust and placing the client’s interests ahead of the lawyer’s.

“So, an easy-to-understand retainer agreement will often be the key to establishing a relationship that lasts for decades and embody the Lawyer’s Golden Rule:

“Always treat every client as you would wish to be treated if the client was sitting in your chair and you were on the other side of the desk,” Rosner concluded.

And our Hanford reader? Did he ask a question that called for that brief, yes-or-no kind of an answer, or was their discussion far more involved? We’ll tell you next time, as well as focus on how clients can drive their lawyers “sane.”

Dennis Beaver practices law in Bakersfield and enjoys hearing from his readers. Contact Dennis Beaver.

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August 29, 2015 • By Dennis Beaver

Our recent articles on ways of improving attorney-client relationships led to highly positive reader feedback from across the country, including a request from a Southern California Bar Association that we serve as a fee arbitrator in one of their cases where an attorney’s competence was the issue.

For lawyers, our Rules of Professional Conduct require competence, “Having the learning, skill, mental, emotional and physical ability necessary for the performance of the service.”

In this case, a Southern California lawyer took $3,500 from a mother wanting to protect her son from an abusive father, and even when faced with clear evidence of incompetence, still maintained that everything was done correctly.

In October 2013, Rosa learned that her husband had beaten their 8-year-old son with a belt, leaving bruises all over his body. She took photos and made a video on her webcam which had a time/date stamp. Justifiably fearful of repeated behavior, hubby was tossed out of their home that night. They later reconciled, and there were no further episodes of abuse.

In September 2014, the husband moved out and Rosa hired attorney “G” for a divorce. With the memory of that beating still very much present, she wanted custody and supervised visitation.

Without asking her specifically when the beating took place — or giving her the chance to bring in the webcam — G recommended applying for an Emergency Order, which could be obtained within a day or two with a few hours notice to her husband.

Family law attorneys who read this column will immediately recognize that Rosa’s case did not qualify for such a court order, as Family Code section 3064 requires:

(1) A showing of immediate harm to the child or the immediate risk of being removed from the State of California;

(2) Immediate harm to the child includes acts of domestic violence of recent origin or show a continuing pattern of violence.

Rosa’s signed Declaration revealed that she knew of the beating “a few months ago” from talking with her sister, who had first seen the marks. If G had taken the time to read the declaration — or knew the law — a voice screaming, “Don’t File These Documents! Even if you get your order, it will be set aside!” would have been heard.

Written retainer ‘an example of what not to do’

We had G’s 11 page unsigned retainer reviewed by an attorney who serves a large, Southern California Bar Association as a fee arbitrator, who commented:

“This retainer is an example of what not to do! The only thing lacking were nails with which to crucify G’s clients, with, for example, this completely unenforceable language: ‘We charge $3.50 per page for fax received and $.50 per page copied. If client walks in without an appointment to speak with attorney or staff, a $100 fee will automatically be added to your bill.”

Because G “Was so busy and couldn’t wait to get me out of the office to see other people, the retainer was never signed — they just handed me the document — which was filled out–and then said “That’s it for today,” and I left,” a lucky Rosa explained.

An unsigned a retainer has no legal effect, the lawyer only entitled to “the reasonable value of services performed.” This can be far less than the amount stated in the retainer.

Order obtained – and later set aside

With the Emergency Order, G properly filed a divorce petition, and off to court they went, the requested supervised visitation and custody was ordered because husband never got notice. Despite being given three phone numbers to reach him, G’s paralegal tried only one.

Shortly thereafter, the order was set aside and G dropped Rosa, which was a good thing as then a competent lawyer was hired. Justifiably feeling ripped off and wanting some money back, she applied to G’s Bar Association for Fee Arbitration.

Nice but incompetent

Our office was asked handle the arbitration, and we asked other family attorneys in the same town about G’s reputation in the community. “Nice but incompetent,” we were told, repeatedly.

Showing up late, there were other surprises, such as double billing, excessive charges, even a $10 for a 30-second phone call to his paralegal from Rosa.

Though maintaining that “everything was done correctly,” when we asked if some refund was in order, immediately over half of the money paid was offered and Rosa accepted.

With the local bar association flooded with complaints about G, one day there may be no clients to complain.

Competent, ethical lawyers put the interests of their clients first and have little tolerance for these kinds of behaviors.

The smile on Rosa’s face said it all.

Dennis Beaver practices law in Bakersfield and enjoys hearing from his readers. Contact Dennis Beaver.

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Sharon is an extremely busy, solo estate planning and corporate attorney in a San Joaquin Valley town that does not have a surplus of lawyers with her level of skill.

“But a highly successful law practice can also be somewhat of a curse,” observes San Joaquin College of Law Professor Rose Safarian.

“When a lawyer accepts more work than can comfortably be taken care of, unless another attorney is brought onboard, it’s an invitation to making mistakes or dropping your clients.”

“And there is a right way and a very wrong way to do this,” she adds.

A Monday her clients will never forget

“Roger,” who practices medicine in Sharon’s town, learned all about the wrong way of telling a client to find a new lawyer, when:

“Stepping into my office on a Monday morning, on my desk, were our files — files which had been in her office. No warning — she just dumped us after 10 years handling our business matters and family estate plan! I phoned her, but she did not even have the courtesy to take my call.

“I had to scramble to find another attorney; because of family health issues, we were about to make important changes. This can’t be the way lawyers should treat their clients, or is it?” he asked You and the Law.

As we would learn from other readers, it was a Monday many of Sharon’s clients will never forget, wondering, “What did I do wrong?”

But they had done nothing wrong.

Sharon was seen at a local supermarket — and confronted by a former client who tearfully asked, “Why did you do this to me? Why didn’t you call and explain yourself?”

Offering no apology, Sharon’s excuse was, “I needed to slow down.”

There is a right way of dropping a client

“Before a lawyer even considers withdrawing from employment, steps must be taken to avoid harm to the client,” observes Paul Hayden, professor of consumer protection law at Loyola Law School in Los Angeles.

“An attorney must give notice, allow time for the client to find another lawyer, and, of course, return the file.”

Safarian agrees, adding, “If you just hand them their files with no advance notice, your license to practice law could easily be at risk.”

“And it’s not a matter of actual harm resulting,” Hayden points out. “A lawyer who did that could be disciplined for a failure to give notice whether or not actual harm occurred.”

A lawyer assuming that nothing is going on invites trouble

“Reasonable notice depends on the stage the matter is at,” Hayden notes. “If it’s at a crucial point, requiring some action — let’s say, you are facing a critical time limit — then a longer notice would have to be given. But if the case has ended, or nothing will need to be done for a long time, then short notice would be adequate.”

“Especially in estate planning matters,” observes Safarian, “it is dangerous for a lawyer to assume that nothing is going on — this is an invitation to real trouble.”

• Perhaps the client has a serious illness and needs to make changes to the estate plan immediately.

• Sudden, critical events do occur. Returning client files with no warning can put the client’s estate plan at risk, leading to great worry and significant financial loss.

• Clients do face emergency surgery or illness, which can lead to mental impairment and the urgent need for a durable power of attorney so that someone in their family can do the things that they are no longer able to handle. There may be no time to find a new lawyer.

• In that hour of need, we trust our lawyer to be there for us. The last thing any client wants is to feel abandoned at this most difficult time.

The duty to protect a client’s interests continues

“In all things that we do as lawyers, we are held to the highest duty the law knows. It is called the fiduciary duty and requires that we place the interests of our client ahead of our own. We are hired to protect our clients, not to harm them, and this duty continues into the act of withdrawing as counsel.

“The public relations consequences not only to Sharon, but to the profession itself, are horrible. We are supposed to act in a way which promotes professionalism. How she treated her clients clearly goes against that,” Hayden concluded.

There is a flip side to this coin, and that’s the client’s obligation of maintaining good communication with the attorney, keeping up to speed on the progress of the case, or merely to checking in from time to time.

Is it right to be billed for that? We’ll have the answer next time.

Dennis Beaver practices law in Bakersfield and enjoys hearing from his readers. Contact Dennis Beaver.

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Last week, we told you the story of a law student with a part-time job in a San Francisco law firm. He discovered lawyers were performing unnecessary and costly legal services after clients told them to stop all work.

When an attorney does work merely to run up the bill, this can result in criminal prosecution and the loss of the license to practice law.

Here, someone found out — a gutsy law student who we put in touch with the State Bar of California. But if you think these kinds of billing practices are extremely rare — think again.

“While not an every-day event, we do get calls like this from legal secretaries, paralegals, law clerks, and lawyers who have uncovered the same thing in their own firms,” a State Bar investigator told me. “It is reassuring to find many people in law who will not tolerate illegal activity in their own offices. We accept anonymous complaints and do investigate,” she told me.

Obviously, ethical lawyers do not victimize their clients, and I believe that most lawyers do not play overly fast and loose with their bills.

The real problem is that so much legal work can be done out of the client’s presence, it can be difficult to know the time really spent.

The real question: “How can I reduce the chances of either a billing dispute or becoming a victim of inflated or downright fraudulent billing practices?”

I put that to a couple of lawyers who have written extensively on this subject and also maintain an interesting Web site: Calattorneysfees.com – blog. They are Marc Alexander and Mike Hensley, who practice in Santa Ana.

Their work deals with auditing attorney’s bills — determining if they are reasonable. This has put them in a key position to see what happens when clients understand the power of one document: The retainer agreement.

“It’s your contract with the attorney, setting out the scope of services to be performed, and payment terms the client accepts. Where legal services are expected to exceed $1,000, the law requires a signed, written retainer,” Attorney Alexander points out.

“Most clients do not realize that a retainer is not a take it or leave it matter. When you are handed a retainer to sign, take the time to read it. If you need time to study it, or want family members to look at it before signing, most lawyers will have no problem with that suggestion. But if a lawyer refuses that request, find another lawyer,” he stated.

“It is extremely important to understand that clients always have the right to negotiate, modify, or insert language in this contract-terms that are important to them. Especially if your case could become complicated and expensive, just as you would in having your home remodeled, you need to look at ways of placing controls on how money is spent.”

Specific suggestions

“Suddenly receiving a $5,000 bill for a deposition with no idea it would cost that much, or if it was necessary, is enough to raise anyone’s blood pressure. To prevent surprises, it is reasonable to require an explanation why a deposition is needed and for your approval plus a cost estimate, well in advance. You need to establish a budget, and insist on being told when it is being used up. In short, you have to monitor your bills, and provide for that in the retainer agreement,” Mike Hensley added.

“Don’t just pay the bill. Look at items, the time put in, and if you have questions, call the attorney and discus it while the issue is fresh. You want bills in a detailed manner, for example, in tenths of an hour.”

“Watch out for block billing. This is where you have a string of activities and then one time entry, such as: Review and analyze pleadings, first draft of XYZ, prepare document for filing — total six hours. This kind of bill makes it impossible to determine what tasks were performed and how much time was taken per item. It is an invitation to bill padding,” both lawyers stressed.

Next time — Developing a better relationship with your lawyer. The importance of being proactive.

Dennis Beaver practices law in Bakersfield and enjoys hearing from his readers. Contact Dennis Beaver.

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Dennis Beaver practices law in Bakersfield and enjoys hearing from his readers. Contact Dennis Beaver.

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Dennis Beaver practices law in Bakersfield and enjoys hearing from his readers. Contact Dennis Beaver.

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In America’s small towns both lawyers and clients face two challenging realities:

• Lawyers who know and must be able to work with each other;
• The fact that almost everyone knows each other or are related in some way.

Often an attorney is familiar with all the parties in a dispute, has represented some of them in the past, or now. As lawyers owe their clients a duty of loyalty, conflicts of interest are a real issue.

“While conflicts of interest can sometimes appear out of the blue, in general it is pretty much of a common sense matter to determine whether the lawyer can continue the representation once the potential conflict becomes apparent,” Bakersfield attorney James Duncan told You and the Law. Duncan is the in-house Legal Ethics Ombudsman at his 40 person law firm.

“Friendships or social relationships which may impact the lawyer’s ability to zealously represent the client and providing complete loyalty to the client must be disclosed. An attorney should never agree to represent people who are involved in a dispute with his other clients.

“If that happens — and it comes to the attention of a judge — the attorney will almost always be disqualified from continued representation,” Duncan observes.

“Worse yet, the road to trouble with the State Bar is in accepting compensation with a known conflict and then refusing to refund fees once a judge has declared a conflict of interest and disqualified the attorney.”

“A lawyer who puts money ahead of good judgment and respect for our Rules of Professional Conduct is asking for trouble. The license to practice law can offer a gratifying career, the chance to do good things and earn a nice income. But when all a lawyer cares about is money, sound judgment often flies out the window,” Duncan concludes.

When a lawyer loves money too much

That is precisely what we observed take place right outside a Small Claims courtroom in a Central Valley courthouse, involving readers–three members of an Asian church with marginal English skills–who had been sued by their lawyer “David” for unpaid attorney fees.

It was a stunning example of conflict of interest.

The three were slapped with a restraining order filed by board members acting on behalf of the church. But there was one huge problem, brought to the attention of a Superior Court Judge who found that lawyer David had represented the church and even had some of their money in his trust account.

“You are disqualified from representing these three members of the congregation as you are still, technically, representing the church,” the judge told him.

Instead of refunding the thousands of dollars they had paid — which David was required to do under the rules of Professional Conduct — he billed them for even more money, and sued when they refused to pay.

As most experienced lawyers know, for many reasons, it is rarely a good idea to sue a client for fees. But the love of money has been the downfall of many.

Right to fee arbitration by local bar association 

In California, clients have a right to have an attorney fee dispute handled by a local bar association arbitrator. Before filing suit against a client for fees, a lawyer must provide notice of that right to arbitrate.

But that’s not what happened, as according to the three congregation members, none of them ever received that notice. We firmly believed what they stated.

Lawyers are not permitted to represent parties in Small Claims Court, but at the same courthouse that day for other matters, helping our readers when their case was called, we saw to it that the judge was informed this matter required Fee Arbitration. And with that, everyone was sent outside, to the hallway, to find a settlement or speak with a mediator.

I want $6,000 right now!

While lawyers are generally not afraid of other lawyers, clients sometime scare easy. Insisting on being paid $6,000 immediately, despite our recommendations that the small claims matter be dismissed, and that the three were owed a refund, in addition to warning David of potential trouble with the State Bar, he remained unwavering.

One of the church members had driven several hundred miles to be in court and did not want to return again. Rejecting the $6,000 demand, he offered David $1,500. “Cash only, right now,” demanded their former attorney, and it was paid, David returning to the courtroom and dismissed the three lawsuits.

It was an unhappy ending to a story which should never have been, had David been honest from the outset. As people are consistent, he will face other ethical challenges, and maybe, just maybe, a client who will stand up for what is right.

Dennis Beaver practices law in Bakersfield and enjoys hearing from his readers. Contact Dennis Beaver.

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November 21, 2015 • By Dennis Beaver

“There are few things as dangerous to the public as a lawyer seduced by money, and instead of helping clients, rips them off,” Los Angeles-based attorney Lori Meloch firmly maintains.

As director of the State Bar of California Client Security Fund, she has seen — and helped to remedy — horribly tragic examples of lawyers gone bad. Today, a great deal of her work stems from the housing crash of 2008 and lawyers who amassed fortunes, victimizing people facing foreclosure.

In the Great Recession, often out of a job and upside-down on what was owed on grotesquely overpriced homes they never should have been allowed to get into, “Homeowners paid thousands of dollars to law firms promising to obtain loan modifications or other forms of foreclosure relief, but doing absolutely nothing at all beyond taking money from desperate people,” Meloch points out.

For a tale of several attorneys who took millions of dollars from clients, we recommend the Bloomberg Business in a Sept. 10 article, “Inside a Deeply Suspect Mortgage-Relief Operation in L.A.” The article focused on attorney Vito Torchia Jr., and his cronies at Irvine-based Brookstone Law Corporation.

One of our readers, “Linda,” paid Torchia over $12,000 in 2012 to stop the foreclosure on a home when the payments were all current. She received nothing beyond a letter stating all the great things his firm would do for her.

In May of this year, Torchia was declared ineligible to practice law after the State Bar filed a stomach-churning multi-count notice of disciplinary charges. “When lawyers are disciplined by the Bar, their cases are a public record and available on the California State Bar website. It is information that potential clients need to know,” Meloch underscores.

Losing your license to practice law is one way lawyers who see Bar membership as a license to steal are dealt with. “But in many instances, the State Bar is able to compensate victims of dishonest lawyers through the Client Security Fund which more people need to know about,” Meloch told You and the Law.

“To quality for compensation from the Client Security Fund, the loss of money or property must have been the result of the attorney’s dishonesty, but not because of incompetence or malpractice,” she explained.

“You need to show that the money or property actually came into the lawyer’s possession. If you pay your lawyer in cash, always get a receipt, keep cancelled checks, copies of checks, bank statements, anything showing payment. Without it, we can’t help,” she stresses.

We asked, “What are the types of dishonesty which could qualify for reimbursement from the Security Fund?” Meloch listed five basic categories:

(1) Theft or embezzlement of money or property, for example, after settling a personal injury case, illegally keeping the client’s money;

(2) Where the lawyer has been paid in advance, performed no services or an insignificant portion of services and fails to refund unearned fees;

(3) Borrowing money from a client without the intention or knowingly lacking the ability to repay the money;

(4) Obtaining money from a client representing that it will be used for investment purposes and no investment is ever made;

(5) Intentionally engaging in any dishonest or fraudulent act which leads to the loss of the client’s money or property.

The Client Security Fund is only able to consider a case after the lawyer has been through the attorney discipline system and a final decision is reached. Only after that finding–and the attorney is disciplined–can reimbursement from the Client Security Fund can be sought.

“How long can it take?” we asked.

“We have to wait for the discipline to be final before the Client Security fund can proceed. It is not a quick process,” Meloch notes, “And after the discipline is final, it can take up to three years because of our funding limitations.

“There’s an important time limit to be aware of. Victims must apply to the fund within four years of when they knew or should have known about the loss.”

“When lawyers pay their yearly fees to the State Bar, $40 goes to support the fund. Right now, we have $18 million in applications, but only $6 million available, so it will take time to pay claims up to a maximum of $100,000 each one,” Meloch stated.

The California State Bar website is an excellent source of information about filing a complaint against a lawyer or seeking reimbursement.

Next time we look at the warning signs of a lawyer headed down the wrong path with your case.

Dennis Beaver practices law in Bakersfield and enjoys hearing from his readers. Contact Dennis Beaver.

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February 13, 2016 • By Dennis Beaver

The older we become, the more we understand “Life doesn’t come with an instruction manual,” including work, marriage, raising kids, and until recently, hiring a lawyer.

As far as hiring a lawyer is concerned, that’s all changed, as we found the ideal ‘Instruction Booklet’ helping in the search for a good lawyer, and making that attorney-client relationship a truly good one.

Written by a paralegal with over 20 years working in many different field of law, Denver, Colorado-based Ellen Hughes gained a unique insight into the legal profession that she shares in “Be a Smart Client.” This small book — only 100 clearly-written pages — truly is an instruction manual, filling an important need, and not just for the person or company about to hire an attorney for the first time.

Two things are unique about “Be a Smart Client.” First, Hughes asks readers the types of questions that few think of and which are essential in finding the right lawyer. Second, she provides concrete advice that guides clients through what can be difficult moments in the attorney-client relationship.

This empowering book begins with a look at the wrong way to find a lawyer. As she points out, “The most important thing is to hire an attorney who meets your legal and personal needs. There is a right way and what can be a costly, wrong way to find that person.”

“Strictly based on advertising,” she strongly maintains, “isn’t the best way of finding a good lawyer, and don’t let yourself be overly influenced by a billboard, TV or impressive internet ads. People see these and think, ‘He’s got to be the best! Advertising like that isn’t cheap, so whoever has the most ads must be the best lawyer for me. Money talks, and I’m impressed!’ “

While today, an internet search will provide names, Hughes believes — and we agree — “The old fashioned way of referrals from colleagues, friends and family can be the best way of finding lawyers who handle your type of a case. Then, when located, and before you schedule an appointment, ask yourself:

• Am I more at ease with a man or a woman?
• Do I prefer working with a younger or older person?
• How far am I able or willing to travel for appointments? 
• How do I generally wish to communicate? Phone? Email, text or in person?
• How involved with my case do I want to be?

In many states, such as California, there is a dramatic over-supply of recent law graduates who have not been able to find jobs in law firms and therefore, open their own office. That is a real matter of concern for anyone hiring that fresh-out-of-school attorney.

Lawyers admit to each other that right out of school, most of us had a head full of theory, but didn’t know where to stand in a courtroom. Take that to generally mean incompetent. There are some exceptions for lawyers who had jobs while in law school as clerks in a law firm.

Because a legal education isn’t at all hands on from day one as it is with health care, we learn our skills under the wing of a senior attorney, as a Deputy D.A. or in some other government law office. That first job is our “internship.”

To Ellen Hughes, this places a, “Special responsibility that you have to yourself. Before making that first phone call, always look up the lawyers you plan to contact on your State Bar’s website. This will tell you when they graduated law school and if they got themselves in trouble with their State Bar.

“When you call, get a feel for their personality. Do they listen and show real interest in your legal problem? Always ask:

• How long have you been in practice?
• If on their own, “Where did you work before and what types of cases did you handle there?” 
• What is your experience with my type of case?
• How do you charge?

After the call, Hughes asks us to think about the conversation and ask:

“What was my immediate reaction? Do I feel comfortable in sharing intimate details of my life and things which I might have done wrong? Did the lawyer speak in terms I can understand? Were my questions answered? Do I have a positive gut feeling?”

And what if your answer is “No” to any of these questions? “Keep on looking until you find the right fit,” is her recommendation.

From the first meeting to hiring the lawyer, clients have rights and obligations. We’ll look at them next time. A visit to www.BeASmartClient.com is well worth the time.

Dennis Beaver practices law in Bakersfield and enjoys hearing from his readers. Contact Dennis Beaver.

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What do you think is the most common mistake that virtually all lawyers have made at one time or another which proved to be embarrassing to the attorney and costly to the client?

Here’s a hint: It had nothing to do with being paid a fee, and did not involve missing an important court date.

“It’s believing what your clients tell you – taking them at their word – and then immediately acting on that information. While trust and belief is an important element in the attorney-client relationship, the surest way to get both ourselves and our clients in trouble is to just toss common sense out the window, and march off to battle, without asking the client a lot of questions,” employment law specialist Sheila Engelmeier firmly maintains.

Minneapolis-based Engelmeier lectures and has written extensively on “this trap which two classes of lawyers often don’t see. The first are inexperienced attorneys who have not had the opportunity to learn that things often are not as their clients remember or thought they were. The other group are extremely successful lawyers whose very success makes them feel immune.”

Tell me everything the other side would want to know

There is an old saying that law students hear when studying evidence: In court, truth is what the judge or jury decides it is. It isn’t what your client thinks happened that is key; rather, what information can your client give you which proves their case?

“Your lawyer will of course ask questions leading to information which helps to prove case. But what’s even more important is to ask possibly embarrassing questions that reveal details the other side would want to know to disprove the case or discredit your witnesses,” she points out.

“Lawyers have a legal duty to investigate the factual basis of any suit they are considering filing. Both the attorney and client can be penalized if a thorough investigation has not been conducted, and if a lawsuit was filed without proper merit or justification. So, like a journalist, a good lawyer should ask: who, what, where, when, why and then will insist on knowing how you can prove it,” she stressed.

“Your lawyer must know about weaknesses in the facts of the case, and especially about things in the past – things about you and possibly your family – which could hurt your credibility. You want a lawyer who asks probing questions which might intrude into touchy areas and help you truthfully develop the best possible answers for challenging questions.

“This can be embarrassing, but in discussing skeletons in your own closet, you can trust that the information will remain confidential. Remember, your lawyer’s job is to help others to see you in your best light, and this requires understanding your flaws. If, for example, I have a client who left out something important on an employment application – or lied about an important detail – I need to know that upfront. Then, we can make our best effort to explain the situation.”

Why some lawyers don’t ask the tough questions

“Have you found that many lawyers shy away from asking the tough questions?” we asked.

“Yes, and in three recurring situations,” Engelmeier replied.

“Where your client is an employee, and feeling mistreated, there is a natural tendency to not want to further upset them by asking what they ‘might’ have done ‘wrong.’ This is a dangerous trap, because sometimes they have partially contributed to their own unfortunate circumstance.

“Next, where the lawyer is representing the employer, often it is a long-standing relationship. Client and attorney may have become friends, and so questioning the employer may be very uncomfortable for the lawyer to do.

“Finally, if it is a new relationship – a new client – it is always difficult to appear to challenge a decision maker. But this is an easy challenge to overcome, and I just say, that for me to be totally on your side, I need to understand the entire picture, what we did well and where we fell short. Mistakes can be explained, but only if they are acknowledged.”

Realistically look at the facts

Lawsuits are unbelievably expensive and time-intensive. Up to the eve of trial, it is estimated nationally that in a typical employment case, each side will have spent close to $200,000.

“When you look at that expense, then think of the stress, and the emotional price tag, there is one question that you never want to ask after losing,” Engelmeier cautions. “Why didn’t we realistically look at the situation and prepare to deal with both the good and the not-so-good facts? Why didn’t we ask ourselves the hard questions before the other side did?”

Dennis Beaver practices law in Bakersfield and enjoys hearing from his readers. Contact Dennis Beaver.

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