When it comes to choosing counsel, give it some push
April 1, 2003
When it comes to choosing counsel, give it some push
Choosing legal counsel for your organization is a big responsibility, whether you’re entirely responsible for the decision or just one of several people with input. A great deal of money rides on the decision, along with the outcome of future malpractice suits and other legal matters.
Risk managers too often are reluctant to ask the hard questions when choosing legal counsel, and then they sometimes don’t establish a good working relationship after the decision is made, say two attorneys who have seen such mistakes made over and over again. The selection process and the ongoing relationship depend on a constructive give and take, a bit of push and pull that ensures both parties get the information they need, says E. Michael Kelly, JD, a partner in the law firm of Hinshaw & Culbertson in Chicago. Kelly, who specializes in health care defense, says he encourages risk managers to ask the hard questions when choosing legal counsel.
You just might get what you pay for
It is crucial to get the right fit with your institution, he says. Avoid the shortsighted mistake of focusing entirely on money.
"There has been a movement in past years away from going for the cheapest lawyer you can find," he says. "In the 90s, that was kind of the standard, and hospitals would go to small start-up firms simply because of the rate. You tended to get exactly what you paid for in litigation."
Kelly may be biased in favor of larger firms, because Hinshaw & Culbertson is a major player, with 400 lawyers in 21 offices nationwide. But he makes the point that with so much riding on your work with legal counsel, it’s rarely a good idea to skimp on quality for immediate savings. Besides, he says, even the most expensive health care defense is a bargain when compared to other legal arenas.
"Getting good counsel is not as expensive as you might expect," he says. "The upper rate in Chicago is $275 per hour, $300 tops, so even the best health care counsel is a bargain compared to what corporate attorneys get. The defense bar as a whole never charges rates comparable to what you see in a lot of corporate work."
Costs will always be a concern when establishing a relationship with an attorney, so you should thoroughly discuss fees up front, says Patsy Powers, JD, chair of the health care working group with Waller Lansden Dortch & Davis in Nashville, TN, another heavy hitter in health care defense. Powers says you shouldn’t be shy about discussing fees in detail when interviewing lawyers or firms. You should clearly understand the hourly rate, what expenses will be charged, and how you will be billed.
"Service expectations also should be laid out clearly up front," she says. "Discuss whether you prefer written correspondence, e-mail, or phone calls when the attorney needs to contact you. Within reason, you should expect the attorney to provide the service in the way that works best for you. Don’t hesitate to express your needs and see if the firm can meet them."
Powers advises interviewing attorneys just as you would conduct a job interview — by doing your own research first, preparing questions, and expecting the interviewee to present a good case for why he or she is better than the others. Ask the hard questions, like why an attorney can do a good job for you if he or she has never handled this type of case before.
"If it’s a big thing like government compliance or a big-ticket malpractice case, you don’t want it to be their first time," she says. "You don’t want people learning on your nickel."
The interview is off the clock, so don’t rush through it. Take your time and enjoy one of the few non-billable conversations you’ll have with an attorney.
Good relationship will include some conflict
Kelly and Powers offer this further advice on how to select legal counsel and maintain a good relationship:
• The risk manager must be involved in the selection process.
Even if a vice president or someone else is responsible for making the final decision, the risk manager must be intimately involved in choosing the legal counsel. The attorney will work closely with the risk manager, so personal rapport between those two people is important. Aside from all the objective measures of an attorney’s credentials, the personal interaction can make or break a relationship. You don’t want to end up with a situation in which you know the attorney’s credentials are superb but you hate picking up the phone to talk to him or her.
"We can sometimes tell up front that we will or won’t work well together," Kelly says. "Personalities are different, and you want to know right away whether you’re going to mesh well."
Don’t be offended if the attorney says he won’t like working with you, and don’t be shy about saying the same thing. Kelly says the interview process is like dating: "If it’s not a match, just move on. Don’t try to ignore the differences or think you can change the other person."
• Ask for referrals from friends, but be cautious about relying too much on them.
As with many cases in which you’re hiring someone, a referral from a friend can cut through a lot of the preliminary research. Ask colleagues who they have used for similar work and how satisfied they were. "But be wary of hiring someone just because they’re friends," Powers says. "Just like specialists in medicine, lawyers tend to develop areas of expertise, and that area has to match with your needs."
• Seek an attorney with whom you can feel confident and open.
Powers says you must feel comfortable enough with your attorney to be forthcoming with information. "Attorneys see a lot of clients who only give us part of the information we need. That restricts what we can do for them, and they don’t get the best service they could get."
• Look for fellows in the American College of Trial Lawyers (ACTL), but don’t be surprised if they’re in short supply.
The gold standard when seeking defense counsel is the senior attorney who is a fellow in the ACTL, arguably the most prestigious legal organization in the country, Kelly says. Only about 4,000 lawyers are awarded the fellowship, after a secret nomination process and a thorough investigation.
"In virtually every jurisdiction, the top lawyers are fellows. But you can’t insist that your counsel be a fellow, because no more than 1% of every state’s bar can be admitted to the college," Kelly says. "If you find that credential, it’s important. Risk managers often don’t recognize its significance."
• Ask about the attorney’s relationship with others in the business.
"All politics is local and all trials are local," Kelly says. "How many people can this lawyer call and get involved in the case that the risk manager can’t? Does he know the right people and will they return his calls?"
In particular, a defense attorney’s relationship with expert witnesses can be crucial. Getting the right experts can take a case from being out of control to being manageable, Kelly says.
• Determine what level of dedication you will receive from the attorney.
When working with a law firm that has dozens or even hundreds of attorneys, you need to know up front who will actually be handling your legal matters. It may not be reasonable or cost-effective to demand to that the attorney you originally speak to will handle every single thing for you, but you should understand who will. And the work shouldn’t stray too far.
"You don’t want your work assigned almost at random to any of the attorneys in the firm," Kelly says. "Even with 400 attorneys, we normally will have only a handful of lawyers who work with any one hospital. The familiarity is very important. The five attorneys assigned to the hospital will get to know the hospital and won’t have to reinvent the wheel every time."
• Strive for a long-term relationship.
The working relationship will improve over time if you’ve chosen good counsel and you work constructively with them. Switching counsel too often will cost you considerable time and money because of the work required in selecting a firm, and the quality of the legal advice probably will be lower than if you maintain a good relationship with one qualified firm. The best attorneys or firms will expect a commitment of both longevity and work volume from you, at least verbally, before agreeing to represent you.
Commitment has to work both ways
"If the hospital is not willing to commit substantially for five years, I’m not interested," Kelly says. "There’s too much effort involved with establishing the relationship. If you’re going to move on in a year, it’s not worth starting."
A commitment to a certain volume of work also is important to the attorney because he or she may have to bump other long-term clients to make room for you. Avoid entering a relationship just to see if you like the attorney. Remember that if you’re not willing to commit to the attorney, there’s no reason for the attorney to commit to you. Do the research and then make a decision.
"Besides, do you want to hand over 10 or 15 cases that you just think might be good?" Kelly asks. "Do the courting before the marriage. Divorces are painful."
• Expect conflict, and worry if there is none.
Your legal counsel should be providing the best advice possible, even if that means disagreeing with you and pushing you to do things differently. The disagreement might be unpleasant sometimes, but it might also be necessary.
"If you always get along with your defense attorney, if you never have any difference of opinion, if you always have a smooth relationship, fire him or her," Kelly says. "Your attorney’s not doing his job. There has to be some creative tension in the relationship."
Some people are comfortable keeping things strictly businesslike and disagreeing constructively, but for others, a cordial disagreement is not possible without a strong personal relationship. Powers says you need to know which kind of relationship you have. "Otherwise, you get into situations in which the client says OK to whatever you advise, then they hang up the phone and do something completely different."
• Don’t require your attorney to rubber-stamp your decisions.
The attorney is technically your hired help, but you won’t get much from the relationship if you just want a lawyer’s seal of approval for decisions you’ve already made. "If they want someone to nod their head and do the paperwork, they don’t need a good attorney. They need a good assistant," Kelly says. "It always amazes me when people look shocked that I’m offering a point of view different from what they just said."
• Expect your attorney to try new things.
Maintaining the status quo should not be your attorney’s goal. After all, you could probably do that on your own or with less expensive counsel. Your attorney should be looking for ways to improve your situation, and you should be willing to hear the new ideas.
"Initially, what I say might hit your ear funny, but that doesn’t mean I’m right or wrong," Kelly says. "It does mean I’m doing my job, and you should take it that way even if we end up not going that route in the end."
• Look for a proactive attorney.
Your legal counsel should be contacting you once in a while with new developments or suggestions, rather than just waiting for you to call with a problem, Kelly says. If there is new research that affects how an ongoing case should be handled or if it can be useful your efforts to reduce liability risks, the attorney should be savvy enough to know about the development and then mention it to you.
"The harshest thing I can say about an attorney is that they’re phoning it in," Kelly says. "This is not passive work. Expect them to do their job."
• Don’t choose an attorney who’s willing to fight if you’re not.
"If you want to settle all your cases, you don’t need me. You might not even need a lawyer and should just get a good bank," Kelly says. "If you want to settle all your cases and act like an ATM that dispenses money when plaintiffs ask for it, that’s your decision, but you don’t need me around. We won’t get along."
• Remember that the attorney must ask a lot of questions to do a good job.
Risk managers sometimes suspect that an attorney is just trying to boost revenue by asking a lot of questions, but Powers says that is very rarely the case. The attorney must gather substantial background, particularly with a new relationship, in order to proceed in a helpful way.
• Expect a lot from your lawyer.
If you need something by 5 p.m. tomorrow and the lawyer has all the necessary information, the answer to your request should be an almost automatic yes, Powers says. If he or she doesn’t have the necessary information, the attorney should say your deadline can be met as long as you provide the information by a certain time.
But at the same, Powers cautions that clients and attorneys often have different expectations about how long a task will take. The client may think it will take a couple of hours when the attorney thinks it will take a couple of days. It’s a good idea to ask about the expected time for completion up front so there are no surprises.
"You might decide to tell your attorney to do it in a couple of hours so your fees are capped at $1,000," she says. "The lawyer might respond that it’s possible, or I might offer a compromise where you get something similar that can be done in that time frame."
• Speak up when you’re unhappy with an attorney’s service.
"My favorite client is the one who tells me when he’s unhappy," Powers says. "I’d rather have you tell me there’s a problem than to go on and let our relationship deteriorate."
Choosing legal counsel for your organization is a big responsibility, whether youre entirely responsible for the decision or just one of several people with input. A great deal of money rides on the decision, along with the outcome of future malpractice suits and other legal matters.You have reached your article limit for the month. Subscribe now to access this article plus other member-only content.
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