Have You: Hired an Attorney?

With a New Year comes new opportunities. But with new opportunities can also come new legal exposure. For those  organizations fortunate enough to endeavor into new programs or services, is there a system in place to vet them for potential  liabilities? When contracting out these services, are new agreements being reviewed? Is diligence being done on the new subcontractors? Another tricky situation associated with expansion is when non-profits begin fundraising campaigns in territories whose laws and regulations they don’t familiarize themselves with. Have they protected themselves against the risk of being fined, sued, or subject to a myriad of different regulatory penalties? Or what about non-profits that seek to stretch the reach of their organizations, whether it be the type of services provided or the individuals helped? Though this comes from a kind place, has the organization over-reached, placing its directors at civil risk and itself at the risk of losing its tax exemption status?

Recently, many exempt organizations have begun to see that the IRS and Department of Justice are asking these same questions. Consequently, they’re making it a new year’s resolution to find someone that can help them navigate the sometimes turbulent waters known as operations. If you’re one of these organizations, and have never had to hire an attorney before, then you’re in luck! I conveniently have a list things I personally feel are important to keep in mind:

1. Before Hiring An Attorney, Make Sure You Understand Their Fee Arrangement. There are a couple different payment arrangements that attorneys use, and the California Bar has a really good overview of each type commonly used in practice. But in addition to how you may be expected to pay, you should also understand what it is you are paying for. How many attorneys are working the case? What are they billing? And then there is the issue of costs (which are totally different than fees). How much are copies and stamps? Are you expected to pay for them? If so, is cost inclusive with the fee, or are you expected to pay as the case goes along? Matter of fact, when are you expected to pay? If funds are limited, will your attorney take payment in kind? Are they able to create a payment arrangement unique to your organization? There is no such thing as too many questions when it comes to money. Any attorney that gets annoyed at your trying to ensure that you both are on the same page is likely one you don’t want to work with.

2. Understand That Big Names Aren’t Always the Best. It drives me absolutely nuts when professionals suggest that non-profits exclusively seek out the big firm lawyers for their boards and legal work. Last I checked, attorney’s at smaller firms are required to go to law-school too. Don’t get me wrong, there are perks to working with an attorney at a larger the firm; namely that the larger the firm is the larger the resources. However, those at smaller firms will likely have more hands on experience litigating cases and handling clients on their own. Moreover, attorneys at larger firms will likely have to adhere to more rigid payment schedule, whereas an attorney at a smaller firm may have more discretion on how much or in what way your organization has to pay. In the end, there are both positives and negatives for each side. Just remember, to focus more on the person and less on where it is from which they hail.

3. Be Sure to Ask For References. At the end of the day an attorney is there to provide you with a service. As with any service industry, you are entitled to see if their performance has been satisfactory.  Don’t be afraid to ask for one or two prior clients that you might be able to chat with. But don’t just ASK for names, make sure you CALL them as well. Inquire as to whether the attorney was polite. Did he/she communicate well? Was the client satisfied with the end product? If not, was it something that could have been helped? I’ll note that being able to do this will largely depend on the attorney you seek to hire. If your organization is in criminal trouble, I doubt an attorney will hand out the names of a couple of his clients in County for you to speak with. But if you’re looking to have a contract done, an attorney could very easily pass on one or two references.

4. Make Sure Whoever You Hire Is Properly Credentialed. Each state has specific requirements for its attorneys. Usually in order for someone to practice they must take the state’s licensing exam and pass. After passing, they are then licensed to practice IN THAT RESPECTIVE STATE ONLY. There are a few exceptions, but these are few and far between.  Also, understand that an attorney’s license may be suspended or revoked for various reasons, rendering them unable to practice despite having a license. Consequently, its important that you check your state’s bar website to ensure that the attorney you are seeking to hire (a) is licensed;  (b) has a license that is active; and (c) has not been disciplined for anything that might throw up red flags. Along these same lines, do NOT hire a law student simply because they’ll do it for fifty bucks and a sandwich. For one, this could constitute as the illegal practice of law resulting in criminal charges and their not qualifying to be licensed upon graduation. Secondly, hiring someone you know is not licensed could leave you with no recourse if things should go wrong.  For more discussion on this, or to figure out how to find your state bar website, look at the Amercian Bar Association’s article here.

5. Your Attorney Should Be About Education. This is especially important for non-profit organizations. A good attorney won’t just do the work. They will do the work, and make sure to clearly communicate to you (a) what has been done; and (b) why it is they did it that way. Personally, I like to give my clients a crash course on whatever subject matter it is that pertains to the work being done. If I’m writing a contract, I like to give them a “Contracts in 15 minutes” course. Nothing to cumbersome, but enough to make them feel comfortable with the work product that I’ve submitted. And enough for them to be comfortable in spotting other issues that may arise.

6. Just As An Attorney Educates You, Educate Them. An attorney will be able to best help your organization if they have a good understanding of what it stands for. Just as an attorney should educate you about their practice you should educate them about yours. Is there something unique about your organization? Does it have an interesting story? Do you know where you want to be ten years from now? All of these things may seem fairly useless, but it can be extremely helpful to an attorney who is trying to navigate what may be the best options for you. Particularly, if an attorney is being asked to produce something like a contract or policies. The more they know about you, the better their work product can reflect what it is that your organization is about.

7. Don’t Walk Away Until You’ve Made Commitments and Expectations Clear. This may seem like common sense, but when you’re in the midst of the hub bub and jibber jabber its extremely easy to walk away from a consultation without a clear understanding of what the attorney thinks they should be doing. The easiest way to avoid this is to create a list of expectations before you go into any meeting. Remember who, what, when, where and how from elementary school? Applies here as well. Clearly state what it is you want, who should get it, when, where it should go and how it should be delivered.

8. Establish a Time For Checking-in. Think about how long you could go before not hearing from your attorney would make you nervous. If you don’t want to measure by time, then how much of the end-product would you like done before you would want to see it. Whatever point that is, that should be when your attorney check’s in. Don’t just hand them work and say “Go!” Articulate benchmarks and points where you would like a status update, if for nothing more than to be apprised that nothing’s happening or things are the same.

9. If at First You Don’t Succeed, Try, Try Again. Don’t go for the first attorney in the snazzy suit and winning smile. Remember, an attorney is there to service you not vice-versa (though some attorneys haven’t gotten that memo yet). So, if the first person you meet doesn’t quite feel right, don’t be afraid to follow-up by thanking them for their time but informing them that you’ve decided to go with someone else.

For tips on where to start your search, Forbes has a really good post on hiring an attorney as well.  The AIGA also has a good post on hiring an attorney and what to look for as well as the DC bar here. If you want to start looking at attorney profiles for your next project The American Bar Association, Findlaw, JDSupra, Law.com and your state’s respective bar site are really good places to start looking.